Sunday 19 February 2023

Whether it is duty of the court to give mandatory injunction in cases of trespass?

  The entire circumstances revealed from the evidence on record unerringly point to the fact that the Appellant had encroached upon land belonging to the Respondent and without bona fides effected constructions which is verandah which is extension of residential building. The object of estoppel, as held in Madanappa's case, would be defeated if the said illegality is recognized and allowance is granted therefor. In the contextual situation, a decision of a learned Single Judge of High Court of Andhra Pradesh in N.C. Subbayya v. Pattan Abdulla Khan (1956) 69 LW (Andhra) 52 extracted in agreement in the decision by the learned Single Judge of High Court of Madras in the decision in Bodi Reddy v. Appu Goundan MANU/TN/0426/1970 : (1971) ILR 2 Madras 155, is worthy to be looked into. In the decision the learned Single Judge of the High Court of Andhra Pradesh after posing a question "has the court an absolute discretion to award damages instead of a mandatory injunction where there is a trespass by the Defendant on the Plaintiff's land?" held thus:

To say the building erected in such circumstances should not be directed to be removed and only damages could be awarded would, in my opinion, be ineffective, to sanction a condemnation of the Plaintiff's property and an appropriation of it for the Defendant's use.... To confine the relief to compensation in such a case is tantamount to allowing a trespasser to purchase another man's property against that man's will. No man should be compelled to sell his property against his will at a valuation and no person should be encouraged to do a wrongful act or commit a trespass relying on the length of his purse and his ability to pay damages for it.

To say that a small strip of building site could thus be appropriated by a trespasser would be to admit a Rule of law which can be applied limitlessly. In cases of trespass, the Court should ordinarily grant an injunction directing the Defendant to remove the encroachment and restore possession of the vacant site to the Plaintiff. Neither serious inconvenience to the Defendant--trespasser nor the absence of serious injury to the Plaintiff is a ground for depriving the latter for his legal right to the property.

As held by the learned Single Judge we are of the considered view that in a case where the owner of the land filed suit for recovery of possession of his land from the encroacher and once he establishes his title, merely because some structures are erected by the opposite party ignoring the objection, that too without any bona fide belief, denying the relief of recovery of possession would tantamount to allowing a trespasser/encroacher to purchase another man's property against that man's will. In Bodi Reddy's decision (supra) the learned Judge held that in a suit for recovery of possession filed within the period of limitation provided under Limitation Act, the doctrine of laches or acquiescence has no place to defeat the right of the Plaintiff to obtain the relief on his establishing his title.  {Para 20}


Civil Appeal Nos. 6182-6183 of 2009

Decided On: 02.02.2023

Baini Prasad (D) Thr. LRs. Vs. Durga Devi

Hon'ble Judges/Coram:

B.R. Gavai and C.T. Ravikumar, JJ.

Author: C.T. Ravikumar, J.

Citation: MANU/SC/0088/2023.

Read full Judgment here: Click here

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