Somasundaram Chetty and ors. Vs. Babu Alias Ramiah and ors. - Court Judgment

Abdur Rahim, J.

1. The suit was to obtain a decree directing the defendants to demolish at their cost the wall built by them on the plaintiff's wall and a permanent injunction restraining the defendants from interfering in any manner with the plaintiff's wall and also for damages, The District Munsif found that the defendants had cut away about two inches of the breadth of the plaintiff's parapet wall on the northern side between the points C and D in the commissioner's plan down to a certain depth and along a length of about 16 feet and built their parapet wall resting it to that extent on the rest of the plaintiff's parapet wall and on the main wall of the plaintiff's house on which the plaintiff's back wall stands. In accordance with that finding the Munsif granted an injunction directing the defendant to remove the wall to the extent of the encroachment and also restraining them from further interfering with the plaintiffs, wall in question. He also found that no actual damage had been sustained by the plaintiffs and disallowed the plaintiffs' claim for damages.

2. In appeal the District Judge was of opinion that even on the facts found by the Munsif the plaintiffs were not entitled to injunction, mandatory or prohibitive, because the defendants have at most committed a technical trespass by which no inconvenience whatever is caused to them and therefore all that the plaintiffs are entitled to is nominal damages.

3. The District Judge, in my opinion, is quite wrong in his view of the law. What is urged in support of this view is that injunction is a discretionary remedy and should not be granted even in a case of trespass when no damage has been caused or-the damage caused to the plaintiff is so small as to be negligible. Now there can be no doubt that injunction being a remedy in equity, the court is vested with a discretion to grant or to refuse it according as the equity of the particular circum stances of a case may require. But that discretion has to be exercised on proper judicial grounds. Here is a case of continuous trespass practically amounting to ouster of the plaintiff from the land encroached upon, which it is found is the property of the plaintiffs and was in their possession at the time of encroachment. The plaintiffs are entitled to possession of the land free from the encroachment. What would be their remedy at law Ejectment, and alto damages, if any, and not merely damages as appears to be assumed by the learned Judge, which assumption is also the basis of the arguments advanced in support of his judgment.

4. In addition to ejectment the plaintiffs would also be prima facie entitled to damages at least to the extent of the coats which have to be incurred to remove the structure if they did not prove any other damage. There may be cages of continuous trespass on a man's land in which no actual and present damage can be proved, but I see no warrant for the position that merely because no damage is proved therefore a trespasser cannot be ejected. Suppose I have a piece of waste land and a person with no sort of excuse or justification wrongfully takes possession of it and erects a building thereon without my knowledge, could it be said that I should not be allowed to eject the trespasser, because the land was bringing me no income. I am unable to show that I sustained any actual and present damage by the trespasser building on it. Let us go further and suppose the trespasser wishes to pay me a handsome rent and I choose to refuse it. To say that in such a case I should not be entitled to recover possession of my land would be striking, at the foundation of rights of property. And yet that is the logical result of the view held by the; lower appellate court which the pleader for the respondents has strenuously supported. In a case like this the question might well be raised whether the proper remedy is ejectment or injunction, but the respondents, for obvious reasons, raise no such question, for they would not be better off if the court granted ejectment. In fact, as between ejectment and mandatory injunction, the latter would be more favourable to the respondents, for they might try, if possible, to remove so much of their wall as rests upon the plaintiffs' wall without destroying the rest of it, or they might perhaps remove the encroachment at a less cost than would be incurred by the appellants.

5. The vakil for the respondents has relied upon the well-known cases which lay down the general proposition that the court would not ordinarily grant mandatory injunction if damages would be adequate remedy, of which Benode Coomaree Dossee v. Soudawoney Dossee I.L.R. (1889) C. 253 and Boyson v. Deane I.L.R. (1898) M. 251 are examples. This, rule is embodied in Sections 54 and 55 of the Specific Relief Act. I may mention that it is not necessary to consider in this case whether there is any substantial difference between the law enacted in those sections and the rule of English law on the point as suggested in Boyson v. Deane I.L.R. (1898) M. 251. I am inclined to doubt whether the I e is any such difference, but it is not necessary to decide that point in this case because it was found by the District Munsif that there was no acquiescence: or delay on the part of the appellants and that rinding was not impugned in the appeal to the District Judge.

6. I must therefore accept that finding as final for the purposes of this appeal. In this case, therefore, which is one of continuous trespass, where the defendants' action has no justification or excuse and the plaintiffs have not been guilty of any laches or delay in coming to court as the finding is and the facts amply show, the proper remedy is injunction and mere damages would not obviously be an adequate remedy. The fact that no actual damage can be shown is in itself a good ground in cases of this nature for the granting of injunction. I may also observe that the necessity for injunction becomes all the greater and not less by reason of the fact that the defendants had, before the wall in dispute was built, encroached to a small extent at another part of plaintiffs' parapet wall by another wall running north to south built by the defendants.

7. The finding of the District Judge as to the extent of the encroachment cannot be said to be satisfactory. The District Munsif found that it was two inches. The District Judge in paragraph 2 of his judgment says that this finding is open to doubt. In paragraph 3 he says that it would appear that the encroachment was half an inch along the line CD. In paragraph 4, he suggests that the encroachment was two inches and in paragraph 5 he concludes by saying that there has been some slight encroachment but that the extent of the encroachment has not been clearly made out. It may be that what the learned Judge means is that while, in his opinion, the encroachment cannot be less than half an inch, he is unable to hold positively either that it is two inches as found by the District Munsif or that it is not two inches. But this is not made clear. As an appellate court the way he ought to have regarded the question was whether the finding of the District Munsif on the point was wrong. If he was unable to hold that the finding was wrong, his duty was to confirm such finding. Further the District Judge having found that there was some encroachment he ought to have found what, in his opinion, was the least extent of the encroachment if he could not find the exact extent of the encroachment. I may observe that the maxim de minimis non curat lex has no application to the law of trespass. See Clerk and LindSell on Torts, 4th Edition, page 343.

8. I should, therefore, direct the District Court of Madura to submit a fresh finding, having regard to the above observations, on the question: ' To what extent has the defendants' wall been built on the plaintiffs' parapet wall between the points C and D in the Commissioner's plan ?'

9. As my learned brother is for confirming the judgment of the lower appellate court this appeal is dismissed with costs under Section 98, Civil Procedure Code.

Phillips, J.

10. This is a case of trespass upon the plaintiffs' wall. The District Munsif gave a mandatory injunction but the District Judge set aside his decree and awarded Rs. 10 damages. In cases of trespass upon immoveable property a plaintiff is generally considered to be entitled to an injunction and not merely to damages but the circumstances of this case are some what peculiar. The first defendant is said to have built a wall extending over a portion of the plaintiff's' wall. The District Munsif found that there was an encroachment to the extent of two inches but the District Judge has found that the plaintiff has not proved the actual extent of the encroachment although he appears to think that the encroachment is half an inch wide. Some time before the suit wall was built the defendant had built a wall north to south which appears to have encroached upon the plaintiffs' wall to some extent and the Commissioner reports that the present wall does not extend further than that wall, to which the plaintiff took no objection. It has also been found that the plaintiff has not suffered material injury. In view then of the difficulty that would be experienced in framing an injunction in a case where the extent of encroachment has not been proved, I think this is a case where an injunction should be refused. It does not appear that the plaintiff took any action until the work was completed and a court will rarely interfere to pull down a building which has been erected without complaint Gaskin v. Balls (1879) 13 Ch. D. 324. That was no doubt a case of breach of covenant and not of trespass upon immoveabie property, but as the court is vested with a discretion under Section 54 of the Specific Relief Act it cannot be contended that an injunction must necessarily be granted against a trespass under all circumstances, for in exercising its discretion the court cannot exclude all consideration of the extent of damages which would be caused to either party by refusing or granting the injunction. Vide The Shamnugar Jute Factory Co. v. Ram Narain Chatterjee I.L.R. (1886) C. 189 and Benode Coomaree Dossee v. Soudamoney Dossee I.L.R. (1889) C. 252. In this easel think the District Judge rightly refused an injunction and I would dismiss this appeal with costs.