Madhya Pradesh High Court
Gyanchand And Anr. vs Mohanlal And Ors. on 24 July, 2007
Equivalent citations: AIR2007MP258, AIR 2007 MADHYA PRADESH 258, 2007 AIHC NOC 594, (2009) 1 CIVLJ 247, (2008) 3 MPLJ 231
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
JUDGMENT A.K. Shrivastava, J.
1. The plaintiffs are aggrieved by the impugned judgment and decree of learned first appellate Court whereby it had reversed the judgment and decree passed by learned trial Court decreeing the suit of plaintiffs.
2. The plaintiffs filed suit for mandatory injunction praying therein that the portion shown as A, B, C, D in the plaint map which is in the red lines, have been illegally encroached by the defendants and by dismantling the wall had raised construction on the space on which plaintiffs' wall was erected. It has been further prayed by the plaintiffs that a decree of perpetual injunction be also granted against the defendants that in future they should not raise any construction on the suit property.
3. According to the plaint averments, on the eastern side of plaintiffs' house there is a house of defendants and both the houses are adjacent to each other. In the month of October, 1986 the defendants not only dismantled their own old wall but has also dismantled the wall of plaintiffs and after encroaching the area on which the plaintiffs' wall was existing, constructed the wall of their house and thereby encroached that area of plaintiffs by dismantling their wall. Hence it has been prayed that the said wall be dismantled and encroached portion on which the construction has been raised by defendants be delivered to the plaintiffs.
4. The defendants refuted the plaint averments by filing written statement but admitted in para-3 of written statement that plaintiffs were having separate wall and adjacent to it, the defendants have their own wall on which their old house was constructed. The defendants pleaded that on the disputed place, there was no common wall.
5. Learned trial Court framed necessary issues and thereafter parties led their evidence. Learned trial Court after marshalling the evidence of the parties, came to hold that since defendants after dismantling their wall, have also dismantled the plaintiffs' wall and the portion on which plaintiffs' wall was built, on that area had raised the wall, therefore, plaintiffs are entitled for the decree of mandatory injunction. The finding so arrived at by the learned trial Court is based on appreciation of the oral evidence as well as the photographs which were taken at that time of disputed construction. The learned trial Court decreed the suit of plaintiffs.
6. An appeal which was filed by defendants, has been allowed by the impugned judgment and decree by learned first appellate Court and the suit of plaintiffs has been dismissed.
7. This Court on 5-8-1993 admitted the second appeal on the following substantial question of law:
Whether the findings arrived at by the lower appellate Court reversing the judgment and decree of the trial Court are legal and valid?
8. The contention of Shri N.K. Patel, learned senior counsel for the appellants, is that the civil cases are to be decided on the basis of probability and preponderance and if the trial Court, before whom the evidence was recorded, after correct appreciation and marshalling the evidence, came to hold a particular conclusion on the fact in issue, the appellate Court should not have ordinarily interfered in the said finding of trial Court. In support of his contention, learned senior counsel has placed reliance on the decision of Supreme Court Madhusudan Das v. Smt. Narayani Bai and Ors. . The said decision has been placed reliance by the Division Bench of this Court in the case of Rajeshwari Rajendra Kumar Jain and Ors. v. Balchand Bhaiyalal Jain and Ors. . The contention of learned senior counsel is that it has been proved from the evidence of defendants' own witnesses that the wall of the plaintiff was dismantled when the impugned construction was being carried out by the defendants. Thus, it is proved that defendants after dismantling the wall of the plaintiffs, raised construction of their own house including that area on which the plaintiffs' wall was existing, therefore, according to learned senior counsel, the first appellate Court erred in law in setting aside the judgment and the findings recorded by the trial Court particularly when the learned first appellate Court did not find them to be perverse or the view taken by trial Court cannot be accepted.
9. On the other hand, Shri L.N. Namdeo, learned Counsel for the respondents, argued, in support of the impugned judgment.
Regarding Substantial Question of Law:
10. On going through the findings rendered by learned trial Court in paras 9 and 10 while deciding issue Nos. 3 and 4, it is gathered that categorically it has been arrived at by learned trial Court that the defendants after dismantling the wall of plaintiffs, have raised construction including the area on which plaintiffs' wall was existing. The finding so arrived at by learned trial Court is based on the statement of defendant No. 3-Rakesh Kumar who was examined as D.W. 1. The statement of another defendants' witness which has been relied by learned trial Court is D.W. 4-Jawahar Lal who has categorically admitted that when he arrived at the spot, he found that wall of plaintiffs was dismantled. Thus, the trial Court after appreciating the evidence of plaintiffs as well as the evidence of defendants and their witnesses came to hold that at the time of construction of their house, defendants not only dismantled their own wall but also dismantled the plaintiffs' wall which was adjacent to their wall. It would be pertinent to mention here that in the written statement it has been admitted by defendants in para-3 that earlier the walls of defendants' house and plaintiffs' house were adjacent to each other. It would be germane to mention that learned first appellate Court has not disbelieved the testimony of defendants' witness D.W. 4 - Jawahar Lal and the evidence of defendant Rakesh Kumar. The learned first Court has dismissed the suit on the ground that plaintiffs did not file the documents of title showing their ownership of that area on which their wall was existing. True, no such document has been filed by plaintiffs, but it is equally true and it is proved by the evidence of defendants' own witnesses and the pleading of defendants in their written statement that there was a wall of plaintiffs and it has come in the testimony of the defendants' witnesses that the wall of plaintiffs was dismantled by defendants. It is well settled in law that the civil cases are to be decided on the basis of probability and preponderance and it could be inferred on the basis of preponderance and probability that plaintiffs were the owner of the wall which has been dismantled by the defendants. The Supreme Court in the case of Nizamuddin Ahmed v. Narmada Prasad and Ors. 1976 JLJ 6, has laid down the law that where two views are possible on the statements of witnesses, and if one of them is accepted by the trial Judge, who had the advantage of seeing the witnesses while they were giving evidence and a good opportunity for deciding for himself whether the witnesses were stating the truth, his view is certainly entitled to great weight, and it should not be disturbed unless there are strong reasons to differ. The Supreme Court in a latter decision Madhusudan Das (supra) has been placed reliance by learned senior counsel for the appellants, reiterated the same principle of law. The Division Bench of this Court in Rajeshwari Rajendra Kumar Jain and others (supra) has also followed and reiterated the same principle of law.
11. I have gone through the findings of learned first appellate Court. No where it has been so held that the findings rendered by learned trial Court is either perverse or the view taken by it is such that it could not reasonably be arrived at. In absence of such a finding on the anvil of marshalling of the evidence, the finding of learned trial Court who has given cogent reasons in arriving at such finding that the defendants after dismantling the disputed wall of the plaintiffs, have encroached that area and has raised construction, could not have been disturbed by learned first appellate Court.
12. The substantial question of law is, thus, answered that the finding arrived at by learned first appellate Court reversing the judgment and decree of learned trial Court is not legal and valid.
13. The question now hinges as to whether the judgment and decree of learned trial Court should be restored in toto. On going through the decree as well as encroached area which is mentioned in the plaint map which is now a part of the decree of trial Court, it is gathered that the total area encroached is only 5.46 sq. metre, the width on the northern side is only 22 cm. and on the southern side it is 52 cm. The total length of encroached area is 14.75 metres. Looking to the width and the length of the encroached area which has been encroached by the defendants, I am of the view that instead of restoring the decree of mandatory injunction under Section 39 of Specific Relief Act, 1963 (in short 'the Act of 1963'), passed by learned trial Court in order to serve the justice, it would be appropriate to award damages under Section 40 of the Act of 1963 to the plaintiffs in lieu of the decree of mandatory injunction to dismantle the encroached area. Before passing the direction to give damages instead of granting decree of mandatory injunction following conditions should exist:
(i) Injury to plaintiffs right is small; (ii) is one capable of being estimated in money;
(iii) is one which is capable of being compensated by a small money payment;
(iv) and the case is one in which it would be oppressive to the defendant to grant an injunction.
I have tested all the above conditions on the pivot of the factual scenario of the present case and by applying all the above four conditions, I am of the view that in lieu of granting decree of mandatory injunction and in order to serve justice to both the sides, it would be appropriate to award damages. In this regard I may profitably quote James Bryce:
Law will never be strong or respected unless it has the sentiment of the people behind it. If the people of a state make bad laws, they will suffer for it. They will be the first to suffer. Suffering, and nothing else, will implant that sentiment of responsibility which is the first step to reform.
14. In Taherakhatoon v. Salambin Mohammad in similar facts and circumstances, the Supreme Court held that awarding the damages to the plaintiff would be the appropriate relief. In that case the plaintiff filed suit for possession of an area measuring 24' x 11' and mandatory injunction for directing removal of construction consisting of two rooms. The plaintiff of that case purchased the land including the disputed portion by registered sale deed dated 14-1-1966 and on 13-12-1967 the defendant purchased from the same vendor some neighbouring land and according to plaintiff to that case, on 30-12-1967 defendant of that case illegally occupied the disputed area and also constructed two rooms thereon, but plaintiff did not raise any objection till seven years after the trespass and unlawful construction and a notice was issued on 14-6-1974 and thereafter filed the suit on 14-2-1975. In that situation the Supreme Court in para 22 of the judgment directed defendant to pay the value of the land as on 19-9-1987, the date on which the High Court passed the judgment in favour of the respondent/defendant and for that limited purpose the case was remitted to the trial Court.
15. Five decades earlier the Division Bench of this Court Tilokchand Nathmal and Anr. v. Dhundiraj Madhavarao and Ors. AIR 1957 Nag 2, Shri Hidayatullah, C.J., as His Lordship then was, held that if defendant is required to pull down the present wall and build another wall leaving a space of three inches that space would not be of any use of the plaintiff. On the other hand plaintiffs wall would get support from newly constructed wall of the defendant and, therefore, the Court refused to grant the discretionary relief of mandatory injunction asked for by plaintiff and directed to pay compensation to the plaintiff.
16. Allahabad High Court had also an occasion to consider similar situation in the case of Ram Shanker v. Mahatma Gandhi Higher Secondary School, Jonihan and Anr. and held that where the encroached area on which construction is made by the defendant is a very small area and the plaintiff can be compensated by way of damages, instead of granting relief of mandatory injunction damages could be awarded.
17. Looking to the entire gamut as well as by taking into consideration of the facts and circumstances of the case, I am also of the view that the plaintiffs are entitled for the damages under Section 40 of the Act of 1963. Because, if the decree under Section 39 of the Act is allowed to be executed, it would cause havoc and great loss to the defendants as their entire house would be damaged. Thus by putting my emphasis on balance of convenience to both the parties, I am of the view that in order to serve justice to both the sides, plaintiffs could be compensated by awarding suitable damages to them.
18. In the result, the appeal succeeds in part and it is hereby held that the plaintiffs are entitled for the damages. The case is sent back to the trial Court. Learned trial Court shall allow the plaintiffs to amend their plaint to claim damages at the market rate prevailing today i.e. 24-7-2007. The plaintiffs shall amend their plaint accordingly. The defendants shall also be free to amend their written statement. The trial Court after framing necessary issues in that regard and after recording the evidence of parties shall ascertain the market rate prevailing on 24-7-2007 and shall pass the decree accordingly. Needless to emphasis the plaintiffs shall be entitled for interest on the amount of damages which shall be fixed by the trial Court. The parties are hereby directed to appear on 15th October, 2007 before the trial Court. The trial Court shall not issue any notice to the parties. The Registry is hereby directed to sent the record posthaste so as to reach the trial Court before 15th October, 2007. The respondents shall pay cost of this appeal to the plaintiffs. Counsel fee Rs. 2,000/-, if pre-certified.