Koya Haji Vs. Bhaskaran [Kerala High Court, 20-08-1984]

Specific Relief Act, 1963 – Section 39 – Mandatory injunction to demolish constructions – Principles relevant for consideration.

1984 KLT 929 : 1984 KLJ 661

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Hon’ble Mr. Justice K.S. Paripoornan

Koya Haji Vs. Bhaskaran

S.A. No. 915 of 1979

20-Aug-1984

Advocates : For Appellant: M.C. Sen, Joseph John For Respondent: P. Ramakrishnan Nair

JUDGMENT

K.S. Paripoornan, J.

1. S. A. No. 915 of 1979 is filed by defendants in O. S. No. 2 of 1974 of the Munsiff’s Court, Kalpatta and S A. No. 957 of 1979 is filed by the defendants in O. S. No. 17 of 1974 of the Munsiff’s Court, Kalpatta. The defendants in both the suits are the same, but the plaintiff in the two cases (respondent in the appeal) are different. The questions that arise for consideration in both the cases are similar. The suits were filed by the plaintiffs praying for the issue of a

Mandatory injunction to demolish a sun-shade

encroaching upon the plaintiffs’ respective properties and to restore the properties to their original condition. The plaintiffs in the two suits are the owners of adjacent properties of the defendants. Defendants put up three sun-shades to their room above the common partition wall, projecting over the rooms of the plaintiffs. The plaintiffs averred that the constructions were started when they were away and in their absence. On coming to know of the unauthorised construction over the common wall and the putting up of the sun-shades which resulted in encroachment of the plaintiffs’ land, the plaintiffs protested. The defendants did not pay any heed to the same, but continued the construction. In the circumstances the suits were laid praying for mandatory injunction directing the defendants to demolish the sun-shades encroaching upon the plaintiffs’ properties and to restore the properties of the plaintiffs to their original condition.

2. Defendants contended that the plaintiffs’ rooms and the defendants’ rooms are not part of the same building. They were separate. There was no construction in the common wall and that the sun-shades did not project to the plaintiffs’ properties. A commissioner was appointed. He prepared a sketch and a report. On defendants’ objection the trial court directed a plan to be submitted instead of a sketch. After considering the entire evidence in the case the trial court found (1) that the plaint A schedule room and the room in the possession of the defendants were separated by a single partitioning wall. There was no vacant space in between the two buildings. The plaintiffs and the defendants are equally entitled to the partitioning wall and the defendants are not exclusively entitled to that wall; (2) the sun-shades project in the property of the plaintiffs and the plaintiffs have just cause to complain; (3) the plaintiffs are entitled to injunction against the defendants to restrain the defendants from encroaching on the plaint A schedule property; (4) the plaintiffs are entitled to a decree for directing the defendants to demolish the sun-shade projecting in the plaint B schedule and constructed on the eastern side of the partitioning wall of the plaint A schedule property and the room in the possession of the defendants. The defendants will also demolish the wall constructed on the sun-shade extending the wall constructed horizontally to the partitioning wall. A permanent injunction was granted restraining the defendants from trespassing into the plaint A and B schedule properties

3. In appeal, the Appellate Court concurred with the trial court. The Appellate Court considered C.M.A. 114 of 1975 filed by the plaintiff to review the order setting aside the commissioner’s sketch. The order setting aside the commissioner’s plan and sketch were reviewed and the sketch was restored to file. (2) There was evidence that the sun-shades put up by the defendants project on the roof of the plaintiffs and this clearly encroaches upon the property of the plaintiffs. The decision of the trial court was affirmed. The defendants have filed the above second appeals from the decisions in OS. 21974 and OS. 17 of 1974, as affirmed by the lower Appellate Court in AS. Nos. 161 and 162 of 1975

4. It is common ground that there is encroachment upon the properties of the plaintiffs. It is also conceded that the sun-shades put up by the defendants project on the roof of the plaintiffs. It has been found that the projection in the properties of the plaintiff afford the plaintiffs just cause to complain. At the time of hearing of the second appeals, counsel for the appellants, Mr. M. C. Sen, pressed the only question, numbered as No. 4 in SA. 915 of 1979 and question No. 4 in SA. 957 of 1979. The said question is to the following effect:

“Whether the courts below should not have refused the relief of mandatory injunction to demolish the sun-shades when actually there was no damage or nuisance caused to the plaintiff and that the plaintiff has approached the court long after the construction?”

5. It is the case of the plaintiffs that the constructions were begun by defendants when the plaintiffs were away and immediately after they came to know of the unauthorised construction, they protested. Notwithstanding their protest, the defendants continued the construction. Para.4 of the plaint contains the relevant averments in this regard. The fact that during the construction the plaintiffs protested, has not been specifically denied in the written statement. The plea of the defendants throughout was that there is no unauthorised construction or encroachment in the plaintiffs’ properties nor was there any construction on the common wall. It is also seen that the plaintiffs have filed the suit within about 15 days after the construction was over. It is true that a mandatory injunction to demolish or to remove a building already finished at considerable cost and trouble will not be ordinarily granted unless material damage would otherwise ensue. Courts exercise a judicial discretion in the grant of a mandatory injunction and weigh the amount of substantial mischief done or threatened to the plaintiffs, and compare it with that which injunction, if granted would inflict upon the defendant. The mere sentimental satisfaction of the plaintiff, without any real substantial benefit that is likely to arise to him by the grant of a mandatory injunction, will not weigh with the court. These principles are fairly well settled. But it should be borne in mind as observed by Wadsworth, J. in