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When Mandatory Injunction can be issued in a case

The Specific Relief Act – Section 54 – Mandatory Injunction – Powers – Just and convenient.

AIR 1954 Pat. 477 : 1954 (2) BLJR 40

IN THE HIGH COURT OF PATNA

Imam and Ahmad, JJ.

Meghu Mian Vs Kishun Ram

4 November, 1953

JUDGMENT

Ahmad, J.

1. This is an appeal by the defendant against the judgment and decree passed by the Subordinate Judge, Sasaram. affirming the judgment and decree of the Munsif 1st Court, Sasaram.

2. Tile appeal originally came before Chatterji, J. sitting singly who was of the opinion that in view of the unreported decisions of this Court in Mt. Uchaho Kuer v. Ramsatona Chaubey, Second Appeal No. 1967 of 1948 (Pat) (A) and Second Appeal No. 2288 of 1948 (Fat) (B). The case should be heard by a Division Bench and, therefore, it has now come before us for disposal.

3. The suit giving rise to the present appeal was one for the removal of certain encroachment made by the defendant upon the plaintiffs’ land. The plaintiffs’ case as alleged in the plaint is that they purchased the share of one Mahabir Pasi in a house in Mahalla Kila, Sasaram, and on partition of the house between the different co-sharers, they got, the western portion of the house which has been recorded as plot No. 1296 in the Municipal survey map. To the immediate north of plot No, 1296 lies plot No. 1293 which, according to them, is in their exclusive possession. Sometime back, they had constructed a tiled verandah in the land covered by portions of plots Nos. 1293 and 1296 which had been in existence for more than twelve years. Just on the west of plot No. 1293 and a portion ot plot No. 1296 is plot No. 1292 which admittedly belongs to the defendant.

In the year 1946,’ the defendant started building a house on this plot of land and in the course of that construction he wrongfully and illegally opened a window on the eastern side in the upper storey of his house and also a door on the ground floor in the eastern wall which opens on the land covered by plot No. 1293. He further projected his eaves towards the east on the land of the plaintiffs to the extent of about 1 1/2 cubits. It has been further alleged by them that the eastern wall of the defendant was constructed over a portion of plot No. 1293. Their case is that by the opening of the window towards the east, the privacy of their female apartment in the western portion of plots Nos. 1296 and 1284 is infringed and through the door opened on the ground floor they have been trespassing over their land just adjacent to it on the east and using it as a means of ingress to and egress from their house and hence the suit for the removal of the encroachments made by the defendant.

4. In defence, the defendant pleaded that he had built the house on his own land and that he had not made any encroachment on any portion of the plaintiffs’ land. According to the defence, the defendant had still left his own lands measuring it yards in breadth and 8 or 9 yards in length contiguous east of the house constructed by him. He also pleaded that his eaves and thatches are all on his land and they do not project over plaintiffs’ land and that the door and the window disputed by the plaintiffs, in fact, opened on his land. The existence of the verandah of the plaintiffs towards the east of the house of the defendant was denied by him. The defendant further claimed that plot No. 1293 was not in the exclusive possession of the plaintiffs and that it was used as a ‘Gali’ for the public and the members of his family also used to pass through it and hence it was alleged that the suit of the plaintiffs had been maliciously instituted because of certain grievances which the plaintiffs had against the defendant.

4a. The learned Munsif on considering the entire evidence on the record came to the following conclusions:

1. That there existed a verandah in plots Nos. 1293 and 1296 to which the plaintiffs have got a valid title.

2. That the defendant had never any door towards the east in plot No. 1293. If the defendant be allowed to utilise this door, he will have to pass through plot No. 1293 which he cannot be permitted to do as this land does not belong to him.

3. That the defendant has projected his eaves over the land of the plaintiffs to the extent of four links which he has no right to do.

4. That the defendant has not encroached on any portion of plot No. 1293 by constructing his eastern wall as alleged by the plaintiffs.

5. That the plaintiffs’ right of privacy is not infringed by the defendant’s window in his eastern wall on the first floor.

(5) And on the basis of these findings, he passed the following order:

“that the door attached to the eastern wall of the defendant will be closed and the eaves of the defendant projecting over plaintiffs’ plot No. 1293 to the extent of four links in breadth and 17 links in length towards the east from north to south will have to be chopped off but the defendant’s eastern wall and the window attached to it in the second storey of his house will not be disturbed. It is further ordered that the defendant will not have any right of passage through any portion of plot No. 1293.”

6. The matter then came up in appeal and therein a cross objection was also filed by the plaintiffs. The defendant in his appeal challenged the order directing that the door attached to the eastern wall should be colsed and the eaves of the defendant projecting over plot No. 1293 be chopped off. The cross objection filed by the plaintiffs was against the order holding that the defendant had not encroached on any portion of plot No. 1293 by constructing his eastern wall over it. The Court of appeal on hearing the parties affirmed the findings arrived at by trial Court and dismissed both the appeal and the cross-objection.

7. Now the defendant has filed a second appeal against the aforesaid order passed by the Court of appeal and the plaintiffs a cross-objection in that appeal.

8. The point raised in the cross-objection by the plaintiffs is that the finding arrived at by the Court of appeal to the effect that no encroachment had been made by the defendant over plot No, 1293 by constructing his eastern wall on it is erroneous. This fact, in my opinion, stands concluded by the concurrent finding of facts and I, therefore, think that the cross-objection has no substance and has to be dismissed.

9. In the appeal by the defendant, it has been challenged that the Court of appeal was not right in affirming the order passed by the Munsif to the effect that the door attached to the eastern wall of the defendant should be closed and the eaves of the defendant projecting over plaintiffs’ plot No. 1293 be- removed. These again are purely questions of fact and, in my opinion, they also stand concluded by the concurrent finding of the two Courts below. The only substantial point which has been, in fact, seriously agitated in this Court is as to whether the Courts below in the circumstances of the present case could pass an order against the defendant to the effect that the door already constructed by him in the eastern wall should be ordered to be closed.

10. Mr. Verma appearing for the appellant has contended that the door as found by the two Courts has been constructed by the defendant in his own wall over his own land and that, therefore, it does not in any way violate the right of property or any other right vested in the plaintiffs and there was in law no ground for an order to be passed to the effect that that should be closed. In support of this contention, reliance was placed by him on the case of Sayyad Azuf v. Ammerubibi, 18 Mad 163 CO and also on the two decisions of this Court, one given in Second Appeal No. 1967 of 1948 disposed of on 15-3-1950 (Pat) (A) and the other given in Second Appeal No. 2288 of 1948 disposed of on 17-1-1950 (Pat) (B). The case reported in — ’18 Mad 163 CO’ is, in my opinion, not at all relevant to the point under discussion before us. The point decided there was as to whether the right of privacy is a right for which an action could lie and that in case that right was violated, a mandatory injunction could be issued against the person violating that right and not as to the circumstances under which a mandatory injunction can be issued in a case. It is true that in the two decisions of this Court, it was decided that in the circumstances of those cases the mandatory injunction should not be passed. The judgment in Second Appeal No. 2288 of 1848 (Pat) (B) was given by Shearer, J. sitting single. The relevant passage in that judgment is

“The learned advocate for the respondents says that it would be inequitable to compel his clients to wall up their door, as the door is not used only as a means of ingress to and egress from their house but was also constructed to obtain more light and air. I very much doubt it” this is really so. It seems to me, however, impossible to grant a mandatory injunction.”

It is, apparent that the learned Judge in this case did not, in fact, discuss the principles on which a mandatory injunction should or should not be issued. In the case of Second Appeal No. 1967 of 1948 (Pat) (A), Sinha J. sitting singly observed:

“It remains to consider the last point raised on behalf of the appellant, namely, that the direction in the judgment of the lower appellate Court that the appellant should close her doors at points N and P is erroneous in law inasmuch as it has not been found that those doors are situate on the plaintiffs’ land though they may open into the plaintiffs’ land. The only declaration that can be given in this case is that the defendant has not acquired any right to pass over the plaintiffs’ plot through points N and P. If the plaintiffs are so advised, they may have the entrance walled up, but the defendant is under no legal obligation to close the doors at those points.”

In this case also, therefore, it is apparent that the learned Judge deciding the case was not considering the broad principles in general on the basis of which a mandatory injunction can be passed. Neither, he has observed that a mandatory injunction can be passed only when the right of the plaintiff has already been invaded and not when there is only a threat of invasion to such rights. These two decisions, as it appears to me, were given on the facts which were present in those cases and were confined to those facts alone. The principle that a mandatory injunction can be passed even in a case where there is a threat of invasion of the rights of the plaintiff is fully supported by the provision of law laid down in Section 54 of the Specific Relief Act. The relevant portion of that section reads:

“When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following case.”

I need not refer here to the conditions given in that section. It is sufficient for the purpose of this case to say that under the provision of this law, a mandatory injunction can be issued even when there is a threat of invasion over the right of the plaintiff though each case has to be looked into on its own merits in order to decide as to whether the circumstances of that case demand that a mandatory injunction should or hould not be passed in it. The decisions of the Courts also go on the same line. I may here refer to’ the case of Hindu Basini v. Jannabi Chowdhrani, 24 Cal 260 (D). Therein, their Lordships of the Calcutta High Court have observed:

“In the case of Pattisson v. Gilford, (1874) 18 Eq 259 (E), the Master of the Rolls, speaking of the principles upon which a Court of Equity interferes when an injunction is asked for, says:

“I take it that, in order to obtain an injunction, a plaintiff who complains, not that an act is an actual violation of his right, but that a threatened or intended act, if carried into effect, will be a violation of the right, must show that such will be an inevitable result. It will not do to say a violation of the right may be the result; the plaintiff must show that a violation will be the inevitable result.”

And then he proceeds to cite a case decided by Lord Cottenham, and another case in which the Lord Chancellor says:

“I consider this Court has jurisdiction by injunction to protect property from an act threatened which, if completed, would give a right of action. I by no means say that in every such case an injunction may be demanded as of right, but if the party applying is free from blame and promptly applies for relief, and shows that by the threatened wrong his property would be so injured that an action for damages would be no adequate redress, an injunction will be granted.”

The facts of that case had, it is true, no analogy to the present case but still the Master of the Rolls was dealing with the principle upon, which relief is given against a threatened wrong, and the case is, we think, an authority that such a suit will lie when the threatened act is of such a character that it must inevitably result in injury–inevitably in the sense in which the Master of the Rolls says he uses the word, that is to say not in the sense of there being no possibility the other way, because Courts of Justice must always act upon the theory of very great probability being sufficient, but in the sense that there must be such a great probability, that, in the view of ordinary men, using ordinary sense, the injury would follow.”

In view of what I have stated above, I think that Mr. Verma is not right in contending that a mandatory injunction cannot be passed, in the circumstances of the present case, perhaps, on the ground that mere opening of the door by the defendant in his own wall standing on his land cannot be said by itself to have resulted in any invasion of the right of the plaintiffs. In my opinion, law is clear on the point that even when there is a threat of invasion on the right of plaintiff, a mandatory injunction may be passed though the propriety of such an order in each case has to be judged on the facts of each case. I may further refer here to certain observations made in, the case of Ramdas Khatau & Co. v. Atlas Mills Co. Ltd., AIR 1931 Bom 151 (F). Therein, Beaumont, C. J. observed:

“I am not prepared to accept the view that the Specific Relief Act is exhaustive. I rely on the nature of the Act and on the preamble which is in very similar terms to the preamble of the Indian Contract Act, which Act the Privy Council has held is not exhaustive. I should be sorry to hold that the power of this Court, which is conferred by reference to the powers of the old Court of Chancery, to grant injunctions where-ever just and convenient, as those words have been construed in England, has been taken away by an Act of the Legislature. I think, therefore, that we are bound to look outside the Act, and to consider the English cases on the subject.”

To the same effect in the same case, Blackwell J. observed:

“In my opinion, the Specific Relief Act is not exhaustive. The preamble to that Act is in precisely the same form as the preamble to the Indian Contract Act, and it has been said by the Privy Council with regard to the Indian Contract Act that that Act is not exhaustive, in Jwaladutt R. Pillani v. Bansilal Motilal, AIR 1929 PC 132 at p.p 133, 134 (G). By parity of reasoning it seems to me clear that the true view is that the Specific Relief Act is not exhaustive- I think, therefore, that a Court in India is entitled to look at the English cases dealing with the right of the Court to restrain arbitration proceedings, inasmuch as the Courts in India have inherited from the Supreme Court the equity jurisdiction which was conferred upon it in any case where that jurisdiction had been taken away by subsequent legislation.”

This Court, therefore, has got wide powers and much beyond the provision of law laid down in Section 54 of the Specific Relief Act to pass a mandatory injunction in a case where it appears to it to be just and convenient.

11. In this case, therefore, the question that demands consideration is as to whether it is a case in which we should maintain the order of mandatory injunction to the effect that the door should be closed. The two Courts below have found that plot No. 1293 is the property of the plaintiffs and that the defendant has got no right to go on that land. And it is true that for that reason and in view of the overt acts found to have been committed by the defendant, it cannot be said that the two Courts below were completely wrong in passing the mandatory injunction to the effect that the door should be closed.

It is apparent from the facts in the present case that the intention of the defendant in opening this door is to have a passage through it to the land of the plaintiffs covered by plot No. 1293 in order to have an ingress to the road thereby. It has been further found by the two Courts that after the opening of the door, the defendant did trespass the land and in the course of time after the institution of the suit demolished a thatched verandah of the plaintiffs which was standing on it. These acts of the defendant clearly go to prove that his intention in opening a door was to invade the right of the plaintiffs over the land in plot No. 1293 which exclusively belonged to him.

We, however, think that, in the circumstances of the present case, the rights of the plaintiffs will be fully protected if in place of maintaining the order that the door should be closed we pass a mandatory injunction against him for not going over the land in plot No. 1293 owned by the plaintiffs. This order of mandatory injunction along with the finding given by the two Courts which is now final that the land in plot No. 1293 is the property and in possession of the plaintiffs is, in my opinion, sufficient to give him full protection and to make their possession fully safe. The plaintiffs under the law have a right to construct a boundary wall all round their land; if so advised, they can get the door walled up by having a boundary wall on the western extremity of their land in plots Nos. 1293 and 1296.

In that view of the matter, I think the order directing that the door opened by the defendant in the eastern wall should be closed need not be maintained and the order, therefore, to that extent and to that extent alone is modified and is substituted by another order of mandatory injunction restraining the defendant from going over the land in plot No. 1293 or any other land of the plaintiffs adjacent to it which is situated on the eastern side of the eastern wall of the defendant.

12. In the result, therefore, the appeal is dismissed with costs subject to the modification that the order to the effect that the door in the eastern wall be removed is set aside and a mandatory injunction against the defendant is passed to the effect that he should not go over the land of the plaintiffs in plot No. 1293 or any other land adjacent to it situated on the eastern side of the eastern wall of the defendant. The cross-objection is also dismissed but we are of opinion that in that case there should be no order for costs and, therefore, it is dismissed without costs.

Imam, C.J.

13. I do not think that either Mr. Justice Shearer or Mr. Justice Sinha in the cases referred to by my learned brother ever intended to lay down an inflexible rule. It is quite obvious from the provisions of the Specific Relief Act that a Court would have to determine in each case whether there had been an invasion of the plaintiff’s right to, or enjoyment of, property or there had been threat of such invasion. Where there has not been, and the circumstances do not establish any such thing, a perpetual injunction, perhaps, could not be granted.

In the present case, the findings are clear to the effect that the appellant has no right to the land which is the subject matter of the dispute between the parties. The appellant opened the door in his wall, which did not previously exist, in assertion of his claim to that land. This drove the plaintiffs to institute the present suit and while that suit was pending, the appellant forcibly trespassed on to the plaintiffs’ land and demolished his verandah. There can be no question on the finding that there had been an invasion of the plaintiffs’ right to and enjoyment of his property by the act of the appellant. That may be considered perhaps as a past event. The question is as to whether in future the threat of such invasion still lay.

I am myself inclined to think that a threat of such invasion still lies and the apprehension of the plaintiffs in that respect is not unfounded. It seems to me, however, that perhaps it is not necessary in the present case to decide definitely as to whether the order of the Courts below that the defendant should close his door should stand. The injunction proposed by my learned brother would, I think, meet the situation and the appellant must be prohibited from going on to the land of the plaintiffs adjacent to the wall, in which the disputed door is for all times. That land is as has been specified by my learned brother plot No. 1293 and such other land adjacent to the door and the wall in which that door stands. I agree that the appeal and the cross objection be dismissed; the cross-objection without costs but the appeal with costs as the appellant has substantially lost the appeal.

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