Mohinder Kumar And Another vs Kamal Parkash And Another on 21 December, 2019

[Cites 8, Cited by 2]

Himachal Pradesh High Court

Mohinder Kumar And Another vs Kamal Parkash And Another on 21 December, 2019

Bench: Tarlok Singh Chauhan

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 707 of 2008 .

Judgment reserved on: 17.12.2019 Date of decision: 21.12.2019.

Mohinder Kumar and another ....Appellants/Plaintiffs Versus Kamal Parkash and another ...Respondents/Defendants Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.

Whether approved for reporting ?1 Yes For the Appellants : Mr. Anand Sharma, Senior Advocate, with Mr. Karan Sharma, Advocate.

For the Respondents : Mr. Adarsh K. Vashista, Advocate.

Tarlok Singh Chauhan, Judge The plaintiffs are the appellants, who aggrieved by the judgment and decree passed by the learned first Appellate Court whereby it reversed the judgment and decree of the learned trial Court, have filed the instant appeal.

The parties shall be referred to as the 'plaintiff' and the 'defendants'.

Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 21/12/2019 20:27:07 :::HCHP 2

2. The plaintiff filed a suit before the learned trial Court wherein he claimed the following three reliefs:

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(A) Suit for permanent prohibitory injunction restraining the defendants, their agents or workmen from raising any forcible and illegal construction over the suit land comprised in Khata Khatauni No. 140 min/196 min, Khasra No. 2666/1157, measuring 02-01-00 bighas situated at Mohal Kiyani Pargna Rajnagar, Tehsil and District Chamba, H.P. without any right, title or interest.

(B) Suit for mandatory injunction directing the defendants No.1 and 2 to remove the illegal structure which they have unlawfully raised over the land of plaintiff and proforma defendant comprised in Khasra No. 2666/1157/1 Khata Khatauni No. 140 min/196 min situated at Mohal Kiyani, Pargna Rajnagar, Tehsil and District Chamba, H.P. (C) Suit for vacant possession after demolishing the structure over the land measuring 0-1-18 bighas comprised in Khasra No. 2666/1157/1 Khata Khatauni No. 140 min/196 min, situated at Mohal Kiyani, Pargna Rajnagar, Tehsil and District Chamba, H.P.

3. The claim of the plaintiff was based on title and the said title was in fact not even denied by the defendants in the written statement.

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4. On the pleadings of the parties, the learned trial Court on 24.8.2005, framed the following issues:

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1. Whether the plaintiff is entitled for relief of permanent prohibitory injunction as alleged? OPP

2. Whether the plaintiff is entitled for relief of mandatory injunction by removal of structure unlawfully raised over the suit land as alleged? OPP

3. If issues No.1 and 2 are proved in affirmative, whether the plaintiff is entitled to relief of possession after demolition of the structure as alleged? OPP

4. Whether the plaintiff has no cause of action to file the present suit? OPD

5. Whether the suit of the plaintiff is not maintainable in the present form? OPD

6. Whether the plaintiff has not come to the Court with clean hands as alleged? OPD

7. Relief.

5. After recording evidence and evaluating the same, the learned trial Court decreed the suit of the plaintiff and restrained the defendants from raising any forcible illegal construction or causing any type of interference on the suit land comprised in Khata Khatauni No. 140 min/196 min Khasra No. 2666/1157 measuring 02-01-00 bighas situated at Mohal Kiyani Pargna Rajnagar, Tehsil and District Chamba, H.P. Further the plaintiff held entitled for vacant possession of Khasra No. 2666/1157 as encroached by the defendants after demolition of ::: Downloaded on - 21/12/2019 20:27:07 :::HCHP 4 structure whatsoever lying on Khasra No. 2666/1157, Khata Khatauni No. 140 min/196 min.

6. Aggrieved by the judgment and decree, the defendants/respondents filed an appeal before the learned first Appellate Court. The learned first Appellate Court held the plaintiff to be owners of the suit land but dismissed the suit for mandatory injunction on the ground that the plaintiff had acquiesced to the construction raised by the defendants and was, therefore, only entitled to compensation instead of decree for possession by demolition as is evident from para-31 of the judgment, which reads as under:

"31. As a sequel to findings given under point No.1 above, the appeal is partly allowed and the impugned judgment and decree of the learned trial Court are modified to the extent that plaintiff is entitled for compensation of the land measuring 1 biswa 18 biswansies out of the suit land instead of decree for possession by way of demolition. It is ordered that the plaintiff is entitled for the commercial market value of the land measuring 1 biswa 18 biswansies out of the suit land which was prevailing at the time of filing of the suit in the said locality from the defendants who are directed to pay the commercial market value of the land as compensation to the plaintiff within a period of three months from today, failing which the present appeal shall be deemed to have been dismissed. A decree sheet be prepared accordingly. The record of the learned trial Court be returned forthwith alongwith an attested copy ::: Downloaded on - 21/12/2019 20:27:07 :::HCHP 5 of this judgment. File of this Court be consigned to records after due completion."

7. Aggrieved by the judgment and decree passed by learned first Appellate Court on 25.10.2008, the plaintiff/ appellants have filed the present appeal, which came to be admitted on 06.01.2009 on the following substantial questions of law:

for mandatory to Whether the judgment and decree passed by the learned District Judge is vitiated by not granting decree r injunction when the ownership/ encroachment of the property in dispute is proved vide Ext.P1, Ext.P2, Ext.P3, Ext. PC and Ext. PD which is a revenue record and proved the ownership of the appellant as held in 2007 Volume 2, SLC, 204?

2. Whether the judgment and decree passed by the learned District Judge is based on misreading of evidence of PW1 Mohinder Kumar, PW3 Gopal Chaudhary, Naib Tehsildar and DW1 Kamal Parkash and also ignoring the documentary evidence vide Ext.PW3/A demarcation report, Ext.PW3/B statement recorded during the demarcation by revenue officials and Ext.PW3/C the Tatima prepared in pursuance to the orders passed by the competent authorities in presence of parties?

3. Whether the judgment and decree passed by the learned District Judge is against law in not considering the demarcation report Ext.PW3/A?

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I have heard learned counsel for the parties and have gone through the records of the case.

8. Since all these substantial questions of law are intrinsically inter-linked and interconnected, therefore, they were taken up together and are being disposed of by common reasoning.

9. As observed above, there is no dispute that the plaintiff is owner of the land in dispute and over a part of which as per para 31 (supra), the defendants, has raised the construction.

10. Now, the question is whether delay in approaching the Court would bar the grant of relief of injunction because the plaintiff himself while appearing as PW-1 has categorically stated that the construction process was started in the month of November, 2003 and the roof was laid in the month of December, 2003. He also admitted that he had not prevented the labourers and mason from raising the construction nor issued any notice to them. As regards the suit, the same came to be filed only on 16.08.2004.

11. It is more than settled that delay may be a bar to the granting of an injunction even if it does not amount to a proof of acquiescence.

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12. In Lindsay Petroleum Co. vs. Hurd, L.R.5 PC, 239, the Hon'ble Privy Council was dealing with a case where .

during the construction of the building the plaintiff kept warning the defendant not to cause an obstruction, but did not bring his suit for an injunction to compel the demolition of the building until about a year after the completion of the defendant's building. The Hon'ble Privy Council observed as under:

"Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct or neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted; in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable."

13. The aforesaid principle has repeatedly been approved by the Hon'ble Supreme Court and reference in this regard can conveniently be made to judgments of the Hon'ble Supreme Court in The Moon Mills Ltd. vs. M. R. Meher, President, Industrial Court, Bombay and others AIR 1967 SC 1450 and Maharashtra State Road Transport Corporation vs. ::: Downloaded on - 21/12/2019 20:27:07 :::HCHP 8 Balwant Regular Motor Service, Amravati and others AIR 1969 SC 320 wherein it was held as under:

.

"Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."

14. Injunction is an equitable relief and delay defeats equities. Where there is absolutely no satisfactory explanation for the delay, normally the Court cannot grant injunction.

15. Equally settled is the proposition that when the plaintiff has acquiesced in the construction being raised by the defendant, the plaintiff would be refused injunction. Kerr says:

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"A man who comes to Court for a mandatory injunction should use due diligence in making the application. Mere delay will not .

be fatal to the application if no mischief is caused thereby to the defendant, and the delay does not exceed a reasonable period, but the right to a mandatory injunction is gone if there has been unreasonable delay and mischief would be caused thereby to the defendant."

16. A mandatory injunction is a discretionary relief and delay is a factor which has to be taken into account while granting it where a case for grant of this relief is made out. Such delay, however, to be a disqualifying circumstance, must amount to waiver or abandonment of the rights sought to be enforced or acquiescence in the act complained of or laches, after the act is done. Delay to take appropriate proceedings until the completion of the work of building which is causing an injury to the plaintiff's right is usually, but not necessarily, fatal to the grant of a mandatory injunction, and for this reason, that by the plaintiff's delay the defendant has been prejudiced in that he has expended money in completing his building and would have to expend more in removing it, both of which expenses would have been avoided had the plaintiff been prompt to apply for an injunction in restraint of the building operations.

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17. John George Woodroffe, in his TAGORE LAW LECTURES on the Law relating to Injunctions, 6th Edn., speaking .

about the issue of mandatory injunctions, adds:

".... It seems, however, in this country (India) that, subject to the provisions of S.57 of the Specific Relief Act, the principles governing the grant of Injunctions are the same, whether the acts sought to be restrained are a breach of contract or a tort. In both cases there must be no acquiescence and damages must not be a sufficient remedy, and the restoration of things to their former condition must be the only relief which will meet the requirements of the case. Where there is one definite thing to be done about which there can be no doubt the Court will grant a mandatory Injunction. There is no real distinction as to the conditions under which mandatory and other Injunctions are granted. Prompt action is essential if a mandatory Injunction is the desired remedy. Where a plaintiff has not brought his suit or applied for an Injunction at the earliest opportunity, but has waited till the act complained of by him has been completed, and then asks for a mandatory Injunction, such an Injunction will not in general be granted. (Ulagappan Ambalam v. Chidambaram Chetty, 29 Mad. 497 (1906); Ravuru Punnamma v. Lakkaraju Venkatasubba Rao, AIR 1953 Mad. 456). The Court will seldom interfere to pull down a building which has been erected without complaint, Benode Coomaree Dosee v. Soudaminey Dossee, 16 Cal.

252) and unless very serious damage would otherwise result will not order a building already finished to be pulled down.

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But in a more recent Madras case it was held that a landlord should not have a mandatory Injunction for demolition of a building unless he has not only objected .

to such building but has also taken legal steps to prevent it. (29 Mad. 497)..."

18. The House of Lords, in REDLAND BRICKS LTD., v.

MORRIS [1970 AC 662 (HL)], had an occasion to consider the general principles on which mandatory injunction is issued. Lord Upjohn, discussing the aspect at page 665 of the reported case and recalling the general principles, has observed:

"... The grant of a mandatory injunction is, of course, entirely discretionary and unlike a negative injunction can never be 'as of course'. Every case must depend essentially upon its own particular circumstances. Any general principles for its application can only be laid down in the most general terms:

1. A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future. As Lord Dunedin said in 1919 it is not sufficient to say 'timeo' (Attorney- General for the Dominion of Canada v. Ritchie Contracting Supply Co., (1919) AC 999, 1005 PC). It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly.

2. Damages will not be a sufficient or adequate remedy if such damage does happen. This is only the application of a general principle of equity, it has nothing ::: Downloaded on - 21/12/2019 20:27:07 :::HCHP 12 to do with Lord Cairos' Act or Shelfer's case (1895) 1 Ch.

287. .

3. Unlike the case where a negative injunction is granted to prevent the continuance of recurrence of a wrongful act, the question of the cost to the defendant to do works to prevent or lessen the likelihood of a future apprehended wrong must be an element to be taken into account;

(a) Where the defendant has acted without regard to his neighbour's rights or has tried to steal a march on him or has tried to evade the jurisdiction of the Court or, to sum it up, has acted wantonly and quite unreasonably in relation to his neighbour, he may be ordered to repair his wanton and unreasonable acts by doing positive work to restore the status quo even if the expense to him is out of all proportion to the advantage thereby accruing to the plaintiff. As illustrative of this, see Woodhouse v.

Newry Navigation Co., (1898) 1 IR 161;

(b) but where the defendant has acted reasonably though in the event wrongly, the cost of remedying by positive action his earlier activities is most important for two reasons. First, because no legal wrong has yet occurred (for which he has not been recompensed at law and in equity) and, in spite of gloomy expert opinion, may never occur or possibly only upon a much smaller scale than anticipated. Secondly, because if ultimately heavy damage does occur the plaintiff is in no way prejudiced for he has ::: Downloaded on - 21/12/2019 20:27:07 :::HCHP 13 his action at law and all his consequential remedies in equity. * * * .

4. If in the exercise of its discretion the Court decided that it is a proper case to grant a mandatory injunction, then the Court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instructions."

19. The Court, speaking in this aspect, in the case of MIRZA SATTAR BAIG V. TAJUDDIN (1964 MYS. LJ SUPP. 879), has observed thus:

"The issuance of a mandatory injunction is discretionary and rests entirely in the discretion of the Court. It is not in every case that the plaintiff who complains against an injury caused to his property by the defendant can obtain a decree for mandatory injunction. Before the plaintiff could claim such mandatory injunction, he should establish that he did not stand by and allow the injury to be caused to him. If the evidence discloses that the plaintiff did make it possible to the defendant to cause that injury such as unauthorized construction and never took any step such as the institution of a suit and an application for injunction restraining the defendant when such unauthorised construction was in progress and comes to the Court with his suit only after such unauthorised construction was completed, the case would not be one for a mandatory injunction but only for damages."

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20. A Bench of the Patna High Court in the case of DR.

ABDUL KHAIR V. MISS SHEILLA MYRTLA JAMES, (AIR 1957 PAT .

308) has held as under:-

"Generally speaking if a party having an interest to prevent an act being done, has full notice of its having been done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous license. An estoppel does not itself give a cause of action, it prevents a person from denying a certain state of affairs. The plaintiff and defendants were neighboring plot owners. In constructing their house the defendants made encroachment on Plaintiff's land. None of the parties knew their respective rights in regard to the encroached land, and both were labouring under some sort of mistake about their respective right in the said land. Only when the defendants' construction had progressed for several months, and when a boundary dispute cropped up between the parties, and when the plaintiff measured the land that he learnt that the portion an which the defendants. were constructing the building belonged to him, and immediately thereafter he brought a suit for possession". In that case it has been held that no building equity has arisen in favour of the defendants, nor any equitable rights have sprung up in their favour, which can prevent the plaintiff, in the circumstances of the case, to claim possession by demolition of the building on the encroached portion of his land.

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21. The Rajasthan High Court in the case of CHHAGANLAL V. KESARLAL [AIR 1959 RAJ. 97], held as under:-

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"if one of the joint owners makes a construction over a common property, which is incapable of partition, the proper remedy to be given to the other co-owner is the mandatory injunction for restoration of the joint property to its original condition by the demolition of the new construction."

22. The Rajasthan High Court in the case of MOOLCHAND V. CHHOGA [AIR 1963 Raj. 25], held as under:-

"a mandatory injunction is a discretionary relief and delay is a factor which has to be taken into account while granting it, where a case for grant of this relief is otherwise made out and that such delay, however to be a disqualifying circumstance, must amount to waiver or abandonment of the rights sought to be enforced or acquiescence in the act complained of or laches, after the act is done."

23. A Division Bench of the Madras High Court in the case of ASSOCIATED CEMENT COMPANIES, LTD. V. L. S. RAMAKRISHNA GOUNDER (AIR 1965 Mad 318) has held as under:-

"The respondent did not perhaps know at that time that he was trespassing upon Government property, There was every reason for it. Nearly five years after the buildings were put up, the appellant sent a notice to the respondent complaining that in putting up the buildings ::: Downloaded on - 21/12/2019 20:27:07 :::HCHP 16 the latter had trespassed into a portion of the property leased out to them by the Government. The respondent contested the title of the appellant to that extent of .

property. The former then instituted a suit out of which this appeal arises in 1958 for recovery of possession of 79 cents of land which had been occupied by the respondent and for a mandatory injunction directing him to remove the superstructure put up thereon. Both the Courts below found that the appellant had title to the property and they accordingly passed a decree for possession. The learned appellate Judge, however, realized that the appellant could have discovered the encroachment even at the time of construction of the building by the respondent, But he was of the view that having regard to the nature of the land and the circumstances under which the encroachment was noticed, the appellant could not be held to have acquiesced in the action of the defendants in putting up the buildings. One can easily see from the judgment of the lower appellate Court that but for the indifferent attitude adopted by the appellants the respondents could not have been encouraged to put up the buildings.

It is not pretended that the appellant was not aware of the buildings coming up. Notwithstanding the view expressed by the appellate Judge, one can easily see that there must have been some kind of acquiescence on the part of the appellant while the respondent was putting up his buildings. The respondent feeling aggrieved by the judgment of the lower appellate Court filed a second appeal to this Court. Veeraswami, J., while affirming the title of the appellant to 79 cents of land held that in the circumstances, it would be unjust to pass a decree for ::: Downloaded on - 21/12/2019 20:27:07 :::HCHP 17 possession of the property. The learned Judge accepted the finding of the lower Court that the appellants could, if they had eared, have found out in time that the .

respondent was trying to encroach upon their property and when they permitted the latter to complete their construction, it was evident that they were acquiescing in the act of the respondent. He, therefore, considered that this was not a case for directing delivery of possession. Inasmuch as there was a prayer in the plaint for the grant of equitable relief by way of mandatory injunction, the learned Judge held that it would be competent for the Court to substitute in the place of the relief sought a decree for compensation, It will be clear from what we have stated above, that although an owner of property will have undoubted right to recover possession of it from a trespasser albeit that the latter had put up a construction upon it, an exception does exist to such a rule when the owner is precluded by any conduct on his part from claiming possession. That is not really denying the owner his right to recover possession from the trespasser but a rule of estoppel which prevents the owner from claiming the property to be his so far as the other side is concerned,"

24. The Rajasthan High Court in the case of NARAINDAS V. ATMARAM [AIR 1974 RAJ. 144.] held that, a suit for mandatory injunction brought only after defendant constructed a pucca gate, was not maintainable.

25. The Allahabad High Court in the case of PRABHOO V. DOODHNATH (AIR 1978 ALL. 178), observed thus:

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"One co-owner has not in law any right to appropriate land to himself out of joint land against the consent of his co-owners. High handed action by one co-owner cannot .

be encouraged by Courts of law. Unless some special equity is shown in favour of the defendant in a suit for demolition of constructions, which are in the process of being made by him without the consent of the co- owners, a decree for demolition should not be refused especially when the co- owners have come to Court at the earliest. One of the tests to determine whether a mandatory injunction should or should not be granted is whether the plaintiffs, who objected to the constructions being made by a co-owner on a joint land, did so at the earliest or waited till the constructions had been completed. In the first case injunction would normally be issued, whereas if the constructions had been allowed to be completed, an injunction would normally be refused, as the basis for refusing injunction would be that by their conduct in not objecting at the earliest stage, the joint co-owners had induced the maker of constructions to believe that he could make it, and in doing so spent money and effort."

26. The Division Bench of the Karnataka High Court in case titled The Golden Valley Educational Trust Oorgam Kolar Gold Fields Kolar District represented by its President vs. The Vokkaligara Sangh represented by its Secretary 2016 ILR Kar. 2899, while relying upon most of the aforesaid judgments summarized the law in respect of mandatory injunction as under:

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"The grant of a mandatory injunction is, of course, entirely discretionary and unlike a negative injunction can never be 'as of course'. A mandatory injunction can only .

be granted where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future. It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly. Where the defendant has acted without regard to his neighbour's rights or has tried to steal a march on him or has tried to evade the jurisdiction of the Court or, to sum it up, has acted wantonly and quite unreasonably in relation to his neighbour, he may be ordered to repair his wanton and unreasonable acts by doing positive work to restore the status quo even if the expense to him is out of all proportion to the advantage thereby accruing to the plaintiff. The principles governing the grant of Injunctions are the same, whether the acts sought to be restrained are a breach of contract or a tort. In both cases there must be no acquiescence and damages must not be a sufficient remedy, and the restoration of things to their former condition must be the only relief which will meet the requirements of the case. Prompt action is essential if a mandatory Injunction is the desired remedy. Where a plaintiff has not brought his suit or applied for an Injunction at the earliest opportunity, but has waited till the act complained of by him has been completed, and then asks for a mandatory Injunction, such an Injunction will not in general be granted. The Court will seldom interfere to pull down a building which has been erected without complaint. A landlord should not have a mandatory Injunction for demolition of a building unless he has not only objected to such building but has ::: Downloaded on - 21/12/2019 20:27:07 :::HCHP 20 also taken legal steps to prevent it. But where the defendant has acted reasonably though in the event wrongly, the cost of remedying by positive action his .

earlier activities is most important for two reasons. Firstly, because no legal wrong has yet occurred (for which he has not been recompensed at law and in equity) and, in spite of gloomy expert opinion, may never occur or possibly only upon a much smaller scale than anticipated. Secondly, because if ultimately heavy damage does occur the plaintiff is in no way prejudiced for he has his action at law and all his consequential remedies in equity. The Court in the exercise of its discretion will be guided by consideration of justice, equity and good conscience and that it is not possible for the Court to lay down inflexible rule as to the circumstances in which the relief for demolition and injunction should be granted or refused. A mandatory injunction is a discretionary relief and delay is a factor which has to be taken into account while granting it, where a case for grant of this relief is otherwise made out and that such delay, however to be a disqualifying circumstance, must amount to waiver or abandonment of the rights sought to be enforced or acquiescence in the act complained of or laches, after the act is done. One of the tests to determine whether a mandatory injunction should or should not be granted is whether the plaintiffs, who objected to the constructions being made by a co- owner on a joint land, did so at the earliest or waited till the constructions had been completed. In the first case injunction would normally be issued, whereas if the constructions had been allowed to be completed, an injunction would normally be refused, as the basis for refusing injunction would be that by their conduct in not ::: Downloaded on - 21/12/2019 20:27:07 :::HCHP 21 objecting at the earliest stage, the joint co-owners had induced the maker of constructions to believe that he could make it, and in doing so spent money and effort.

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Before the plaintiff could claim such mandatory injunction, he should establish that he did not stand by and allow the injury to be caused to him. If the evidence discloses that the plaintiff did make it possible to the defendant to cause that injury such as unauthorized construction and never took any step such as the institution of a suit and an application for injunction restraining the defendant when such unauthorised construction was in progress and comes to the Court with his suit only after such unauthorised construction was completed, the case would not be one for a mandatory injunction but only for damages."

27. What would constitute acquiescence has further been elaborated in The Golden Valley Educational Trust case (supra), in paragraphs 43 to 50 and the same read as under:

43. At pages 1050 of Vol.II of 'Sarkar on Evidence', Eleventh Edition, the observations of Lord Campbell in Cairncross v. Lorimer (1860) 3 LT 130) are extracted, and they are as under:

"Generally speaking if a party having an interest to prevent an act being done has full notice of its being done, and acquiesce in it, so as to induce a reasonable belief that he consents to it and the position of others is altered by their giving credit to his sincerity, he has no more right right to challenge the act to their prejudice than he would have had if it had been done by his previous license."

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44. At page 4984 of Field's 'Law of Evidence', 10th Edition, 1972 it is observed as under:

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"Acquiescence does not simply mean standing by. It does not mean quiescence only. It means assent, after the party has come to know of his right".

45. At page 1051 the observation of Cottenhas, L.C. in Duke of Leeds v. Amherst (1946) 78 RR 47) is extracted and it is this:

"If party having a right, stands by and sees another dealing with the property in a manner inconsistent with that right and makes no objection while the act is in progress, he cannot afterwards complain. That is the proper sense of the word acquiescence."

46. The following passages also are found at page 1051:

"In order to constitute acquiescence not only (1) full knowledge of one's right is required, but (2) there must be some lying by him to the detriment of the other side. For it is elementary that there can be no acquiescence without full knowledge both of the right infringed and of the acts which constitute the infringed and of the act which constitute the infringement. Acquiescence implies that a person who is said to have acquiesced did so with knowledge of his rights and the other person acted in the bona fide belief that he was acting within his rights. The absence of either of these elements makes the doctrine inapplicable.. Acquiescence does not simply mean standing by.

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It does not mean quiescence only. It means assent after the party has come to know of his right. There is a distinction between acquiescence .

occurring while the act is in progress, and acquiescence taking place after the act has been completed. In the former case the acquiescence is acquiescence under such circumstances as that assent may be reasonably inferred from it. In the latter case when the act is completed without any knowledge or without any assent of the person whose right is infringed, the matter is to be considered on very different legal considerations."

47. At page 1053 we find the following passages:-

"It is of the essence of the acquiescence that the party acquiescing should be aware of and by words and conduct should represent that he assents to what is violation of his rights and that the person to whom such representation is made should be ignorant of the other party's rights and should have been deluded by the representation into thinking that his wrongful action was assented to by the other party."

"The laws as to equitable estoppel by acquiescence has been very clearly stated by Fry, J. in Wilmott v. Barber ( (1880) 15 Ch 96) thus:

'It has been said that the acquiescence which will deprive a man of his legal rights must amount to ::: Downloaded on - 21/12/2019 20:27:07 :::HCHP 24 fraud, and in my view that is an abbreviated statement of a very true proposition. A man is not to be deprived of his legal rights unless he has .

acted in such a way as would make if fraudulent for him to set up those rights. What, then, are the elements or requisites necessary to constitute fraud of that description?

In the first place, the plaintiff (i.e., the party pleading acquiescence) must have made a mistake as to his legal rights;

Secondly, the plaintiff must have expended some money or must have done some act (not necessarily upon the defendant's land) on the faith of the mistaken belief;

Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it, he is in the same position as the plaintiff, and the doctrine of acquiescence is found upon conduct with a knowledge of your legal rights;

Fourthly, the defendant, the possessor of the legal right, must know of the plaintiff's mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights:

Lastly, the defendant, the possessor of the legal right must have encouraged the plaintiff in his expenditure of money, or in the other acts which he has done, either directly or by abstaining from asserting his legal right. Where all these elements exist, there is fraud of such a nature as will entitle the court to restrain the possessor ::: Downloaded on - 21/12/2019 20:27:07 :::HCHP 25 of the legal right from exercising it, but in my judgment nothing show of this will do."

48. The following passage occurs at page 1054:

"Mere non-interference is not enough.

Acquiescence with full notice in act "prejudicial to one's self so as to induce reasonable belief of his consent, followed by consequent alteration of other's position is necessary. Where knowledge on the part of the person to be estopped is not proved, the doctrine of acquiescence does not r apply ..."

49. The Patna High Court in the case of SARJUG DEVI V. DULHIN KISHORI KUER [AIR 1960 PAT 474] has held as under:-

"Where a person (who purchases land from person having no title to it) in possession of land, not in mistaken belief of his rights but in assertion of his rights which he correctly believed to be his, builds structures on the land and the Person who is entitled to possession knows of this, the latter is not estopped by acquiescence from bringing a suit for Possession when the person in Possession, had he exercised care and diligence expected of a man of ordinary prudence, would have easily discovered where the true title lay".

50. Acquiescence does not simply mean standing by. It does not mean quiescence only. It means assent after the ::: Downloaded on - 21/12/2019 20:27:07 :::HCHP 26 party has come to know of his right. If party having a right, stands by and sees another dealing with the property in a manner inconsistent with that right and .

makes no objection while the act is in progress, he cannot afterwards complain. That is the proper sense of the word acquiescence. There is a distinction between acquiescence occurring while the act is in progress, and acquiescence taking place after the act has been completed. In the former case the acquiescence is acquiescence under such circumstances as that assent may be reasonably inferred from it. It is of the essence of the acquiescence that the party acquiescing should be aware of and by words and conduct should represent that he assents to what is violation of his rights and that the person to whom such representation is made should be ignorant of the other party's rights and should have been deluded by the representation into thinking that his wrongful action was assented to by the other party. In order to constitute acquiescence not only (1) full knowledge of one's right is required, but (2) there must be some lying by him to the detriment of the other side.

For it is elementary that there can be no acquiescence without full knowledge both of the right infringed and of the acts which constitute the infringed and of the act which constitute the infringement. Acquiescence implies that a person who is said to have acquiesced did so with knowledge of his rights and the other person acted in the bona fide belief that he was acting within his rights. The absence of either of these elements makes the doctrine inapplicable. It has been said that the acquiescence which will deprive a man of his legal rights must amount to fraud, and that is an abbreviated statement of a very ::: Downloaded on - 21/12/2019 20:27:07 :::HCHP 27 true proposition. In the first place, the plaintiff (i.e., the party pleading acquiescence) must have made a mistake as to his legal rights. Secondly, the plaintiff must have .

expended some money or must have done some act (not necessarily upon the defendant's land) on the faith of the mistaken belief. Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it, he is in the same position as the plaintiff, and the doctrine of acquiescence is found upon conduct with a knowledge of your legal rights. Fourthly, the defendant, the possessor of the legal right, must know of the plaintiff's mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights. Lastly, the defendant, the possessor of the legal right must have encouraged the plaintiff in his expenditure of money, or in the other acts which he has done, either directly or by abstaining from asserting his legal right. Where all these elements exist, there is fraud of such a nature as will entitle the court to restrain the possessor of the legal right from exercising it.

Generally speaking if a party having an interest to prevent an act being done, has full notice of its having been done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous license. Mere non-interference is not enough. Acquiescence with full notice in act "prejudicial to one's self so as to induce reasonable belief of his consent, followed by consequent alteration of other's position is ::: Downloaded on - 21/12/2019 20:27:07 :::HCHP 28 necessary. Where knowledge on the part of the person to be estopped is not proved, the doctrine of acquiescence does not apply.

28. As observed above, grant of mandatory injunction is discretionary and what is the discretion has also been considered in The Golden Valley Educational Trust case (supra) in paragraphs 51 and 52, which read as under:

"51. In the light of the aforesaid legal position, in the instant case, the defendant has put up the construction openly to the knowledge of the plaintiff. Admittedly, the plaintiff's President laid the foundation stone for the building in the year 1974 and thereafter, from time, to time, the constructions are put up. High School, Colleges and polytechnics are run and virtually, it has become a group of institutions consisting of several schools and colleges. Crores of Rupees have been spent for construction of buildings and thousands of students are studying in those institutions. Even if there was a confusion and the plaintiffs honestly believed that the said land belongs to the defendant and therefore, they did not objected for it, now, it transpires that if the land belongs to them, it would not give them a right to seek for demolition of the land by way of decree of mandatory injunction. The suit is filed in the year 1994. The construction is started in the year 1974. For 20 long years, the constructions were made, utilized and the plaintiff did not object to the same. On the contrary, they consented for the said constructions and acquiesced with the said construction. It was contended, where the parties are un- aware of the rights in disputed property ::: Downloaded on - 21/12/2019 20:27:07 :::HCHP 29 both are acting on some mistake about the respective rights in regard to such land, there cannot be any acquiescence. This is not a case where both the parties .

were acting in mistake. In so far as the defendant is concerned, it is his specific case, the land where they have constructed buildings belongs to them exclusively and they go to the extent of saying, though the grant was made in favour of the plaintiff, if it was really meant for them. Though it is difficult to accept the said contention, it would not constitute a bonafide mistake on the part of both of them. When the grant specifically provided for the extent of land granted to the plaintiff and the defendant, if the plaintiff has not taken any steps to get the property identified, even after a decade from the date of grant and even when the defendants started putting up constructions, if they have not chosen to verify the said constructions in their land or in the defendant's land, it does not lie in their mouth to say 10 years thereafter, they came to know that the constructions are put up in their land, it does not amount to acquiescence which is not acceptable. Therefore, the learned Trial Judge was right in holding that these defendants have put up those constructions and the plaintiff's have acquiesced to the said constructions and the plaintiff is not entitled for a decree of mandatory injunction.

52. In the case of CHEDDILAL V. CHHOTYLAL [AIR 1951 ALL. 1999], a Full Bench of the Allahabad High Court, considering the aspect of issuance of mandatory injunction, has held as under:-

::: Downloaded on - 21/12/2019 20:27:07 :::HCHP 30

The Court in the exercise of its discretion will be guided by consideration of justice, equity and good conscience and that it is not possible for the .

Court to lay down inflexible rule as to the circumstances in which the relief for demolition and injunction should be granted or refused.

The Trial Court has exercised the discretion keeping in mind justice, equity and good conscience. It did not want the construction which commenced in the year 1974, which has been there for the last 40 years, where schools and colleges are run being pulled down. Similarly, it is a granted land. The plaintiff has not used it for the purpose for which it was granted. However, defendants have used it for the said purpose and therefore the question of compensating the plaintiff also would not arise. Therefore we do not see any justification to interfere with the order of the trial Court declining to grant the decree for mandatory injunction."

29. Bearing in mind the aforesaid exposition of law, the Court while exercising the discretion will be guided by consideration of justice, equity and good conscience and no inflexible rule in this regard can be laid down.

30. Adverting to the case in hand, the plaintiff despite knowledge permitted the defendants to raise construction over his land and did not raise a single little finger for not days but for months together and having acquiescence to the said act, he is not entitled to a decree for mandatory injunction and is only ::: Downloaded on - 21/12/2019 20:27:07 :::HCHP 31 entitled to decree of compensation which has rightly been granted in his favour by the learned first Appellate Court.

31. As observed above, the ownership of the plaintiff is not in question and in fact, the same even otherwise has been decided in his favour by both the learned Courts below. It is only on account of acquiescence that the learned first Appellate Court has denied the relief of mandatory injunction and, therefore, the documents as referred to in the substantial questions of law, which only go to prove that the plaintiff is owner of the suit land, do not carry the case of the plaintiff any further as he never objected to the construction being raised by the defendants over his land until the same was completed.

The substantial questions of law are answered accordingly.

32. In view of the aforesaid discussion, I find no merit in this appeal and the same is accordingly dismissed, so also the pending application(s), if any.

(Tarlok Singh Chauhan) st 21 December, 2019 Judge (GR) ::: Downloaded on - 21/12/2019 20:27:07 :::HCHP

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Himachal Pradesh High Court