JUDGMENT
T.N. Vallinayagam, J.
1. R.S.A. itself was taken up for final disposal.
2. Plaintiff is the appellant. His suit for declaration of ownership and possession apart from mandatory injunction to pull down the construction unlawfully made by the defendant was decreed by the Trial Court including the prayer for Mandatary Injunction. But the Appellate Court while confirming the decree of the Trial Court thought fit to remit the matter holding that the plaintiff will be satisfied if damages are paid by the defendant for the encroached portion. Against that order, of the first Appellate Court, plaintiff is before this Court.
3. The facts of the case are –
The appellant filed that suit for declaration that he is the owner of the suit schedule property and for delivery of vacant possession of the suit schedule property and for mandatory injunction to pull down the construction made by the respondent in the encroached area of about 3 guntas in the land of the plaintiff-appellant in Sy.No. 17 of Sindghatta Village. The respondent is the owner of Sy.No. 16 to the north of Sy.No.17 and in the guise of constructing a house has encroached upon the land of the plaintiff in Sy.No. 17 to an extent of 3 guntas in the Southern portion of Sy.No. 17 and this encroachment was done and the construction was made in the absence of the plaintiff.
4. The view of the Appellate Court is prima facie not sustainable. Once the courts finds that the encroachment is over 3 guntas of land, the complaint by the plaintiff is true, then two things must be taken into consideration in granting decree for mandatory injunction. One is whether the plaintiff is satisfied with the damages or cost of the area taken over by the defendant and if that be the case, then there will be no difficulty for the court to grant such a decree in favour of the plaintiff in terms of money. Secondly, in equity also, possession of the property is taken into consideration. It is true that normally, mandatory injunctions are not granted in the usual course. Construction was made by the defendant though unlawfully are sought to be protected by granting equity by the Courts. It should be seen as far as possible as to whether the plaintiff should be compensated in terms of money, defendant’s right is any way prejudiced by decree for mandatory injunction. In this case, admittedly 3 gunas of land has been encroached upon by the defendant and this encroachment of such a large area is certainly to the prejudice of the plaintiff. If the defendant is allowed to put up his house on the encroached area, then the plaintiff will be lossing his right not only over the site but also a right to put up the building of his own choice. Property rights cannot be easily interfered with and encroacher must not be allowed to have benefit of the encroachment and the construction they made over the encroached area.
In this view, the judgment and decree of the first Appellant Court to the extent of remand to set aside the confirmation of the finding of the Trial Court for the encroachment by the first Appellate Court is confirmed. The decree of the Trial Court is restored and the second Appeal is allowed.