Kalyandas Gokaldas vs Hiralal Karsandas and Another

Shah, C.J.—This second appeal arises out of a suit brought by the Respondents for a mandatory injunction enjoining the Appellant Defendant to reopen a well which had been closed by him and to allow the Respondents a passage to the well through a balcony.

The parties are descended from a common ancestor and their properties, which were originally joint, were partitioned by a deed dated 20-8-1895. By the partition the portion of the property in which the well was situated was allotted to the Appellant, but the Respondents were given a right to take water from it and for that purpose a right of passage from, over the balcony, which latter was allotted to the Appellant.

The Plaintiffs'' case was that they had been taking the water of the well and were using the balcony for the purpose till May 1949 when the Defendant filled the well with earth and concrete and closed it. The Respondents complained against this act of the Appellant and filed a suit shortly thereafter. The Appellant admitted that the Respondents had been given a right to draw water from the well and also had the right of passage through the balcony, but contended that it was a right given personally to the Respondents and that as the Respondents had let their property the right was lost. He pleaded that the Respondents had abandoned the right in about Samvat Year 1996, and further that the well remained dry for most part of the year and such water as it had was undrinkable. It was a breeding place for mosquitoes and was a nuisance. He therefore closed it with the municipality''s permission.

The trial Judge negatived the Defendant''s contention that the Plaintiffs'' right to the well and to the passage through the balcony was lost on account of the letting of a portion of their property. He held that the door connecting the balcony of the Defendant with the Plaintiffs'''' doors was locked in Samvat 1996 and since then the Plaintiffs had not exercised the right of the passage through the balcony or the right to draw water from the we''ll; but he held that the right was not extinguished because there was no non-user for a period of twenty years, nor had it been abandoned.

The learned Judge also held that the suit was not barred by limitation. He upheld the defence contention that the well had remained unused since Samvat 1990, and it was not useful to any of the parties because there was hardly any water in the well for most part of the year and also because the water was undrinkable and further that the well was a nuisance and was injurious to the health of the people living in the neighbourhood On these and other grounds the learned Judge held that it would not be just to grant a mandatory injunction and that the Plaintiffs would be adequately compensated by damages which lie assessed at Rs. 130/- and awarded to the Plaintiffs.

On appeal the learned District Judge agreed with the findings of the lower Court except that, in his opinion, the compensation awarded by the trial Court was inadequate. In the result the learned Judge declined to grant a mandatory injunction but awarded Rs. 1500/- as compensation to the Plaintiffs. The Defendant has preferred this second appeal disputing the quantum of the amount awarded as compensation. The Respondent-Plaintiffs have filed cross-objections praying for a decree for a mandatory injunction and in the alternative for a compensation of Rs. 2000/- instead of the sum awarded by the lower appellate Court.

Mr. Chinoy for the Appellant has taken a two-fold preliminary objection to the lower appellate Court''s decree, the first being that the suit was tried by a Munsiff whose pecuniary jurisdiction was Rs. 1000/- and the appeal having been filed against his decision the District Judge had no jurisdiction to award compensation in a sum in excess of the pecuniary jurisdiction of the Munsiff.

The second part of the contention is that the Plaintiffs, as Appellants before the lower Court, had not claimed in the appeal any higher compensation and had not paid Court Fees for the same, and that in the absence of relief claimed for higher compensation it was not open to the lower appellate Court to award it.

I will deal with this latter contention first. The facts as stated by Mr. Chinoy are correct, and it may be observed that the Plaintiffs, as Appellant in the lower appellate Court, had stated incidentally in ground No. 7 that the compensation awarded was inadequate. Mr. Chinoy''s contention is that the Plaintiffs were bound to claim a higher sum as compensation and if they did not, then it was not open to the Court to award what had not been prayed for. He has placed reliance on -''Percival v. Collector of Chittagong'', 30 Cal 516 (A).

That case arose from references made to the Civil Court u/s 18, Land Acquisition Act, and the Subordinate Judge who-heard the reference had awarded Rs. 21,726/- odd as compensation for the Plaintiffs'' lands. Some of the Plaintiffs appealed to the High Court valuing the appeal at Rs. 13,000/- and paying Court-fees for that amount. The High Court raised the compensation to over Rs. 40,000/-, but after the judgment was delivered, the Government Pleader brought to the notice of the Court that the sum awarded was in excess of that which the Appellants had claimed in appeal. This objection had not been taken at the hearing, and the High Court thought it proper to allow the Appellants leave to amend the memorandum of appeal and to pay additional Court-fees. On behalf of the Government an objection was taken that in as much as the Appellants had chosen to put the amount of the claim at Rs. 13,000/- the Court should not enhance the award to an amount beyond that stated in the memorandum of appeal. The petition for leave to amend the memorandum of appeal and the Government''s objection were heard by the High Court and their Lordships held that in the generality of cases, an appellate Court cannot pass a decree for .a larger amount than that claimed in the memorandum of appeal, unless before the'' judgment is pronounced an amendment of the memorandum of appeal is allowed, and additional court-fees are paid and in this view they restricted the decree to the amount stated in the memorandum of appeal plus the amount awarded by the lower court and the usual statutory allowances.

The decision is correct so far as it goes and , there can be no quarrel with the proposition that an appellate Court cannot award a larger sum than that claimed in the memorandum of appeal, but the, question here is different. The question is not whether the Respondents could have been allowed a sum higher than that had been claimed in the appeal, but whether they were bound to claim any compensation either in the Court of the first instance or in appeal. Their suit, as brought, was for a, mandatory injunction and it was because the trial Court, in its discretion did not consider it fit to grant the injunction on that it awarded compensation, holding that compensation would be an adequate relief. On appeal the Plaintiffs, still prayed for a mandatory injunction and they did not ask for any compensation though it is true that incidentally they did state that the compensation awarded by the trial Court was inadequate but this latter does not mean that compensation was a part of the relief asked for by the Plaintiffs in the appeal. The learned appellate Judge agreed with the trial Court and declined to grant the mandatory injunction and instead granted compensation which was no doubt far in excess of that awarded by the trial Court. While refusing to grant the injunction, the lower appellate Court did have the jurisdiction to award compensation in lieu thereof, and this was so even though the Plaintiffs had asked solely for a mandatory injunction and not for compensation.

In - Kr. Shushilendra Pal Singh Vs. B. Kailash Chand Bhargava and Others, , the suit was for a perpetual injunction restraining the Defendants from using the electric installations in a cinema house and also restraining them from obstructing the Plaintiff in removing the electric fittings. The Court of first instance held that the suit as framed was not maintainable and that the contract in suit could not be specifically enforced and no injunction could be granted in view of Sections 21(a) and 56(f), Specific Relief Act, and on these findings the Court dismissed the suit.

On appeal the District Judge concurred with the findings of the Court of the first, instance and held that the prayer for an injunction could not be granted. He, however, held that although the Plaintiff was not entitled to the relief specifically claimed namely an injunction, he was nevertheless entitled to compensation and he therefore reversed the decree of the lower Court and remanded the case for an enquiry whether there was a contract between the parties which had been broken by any of the Defendants and whether the Plaintiff was entitled to compensation for that breach, and directed the Court of the first instance to award compensation in the light of its findings.

In second appeal it was contended that the lower Appellate Court had acted illegally in remanding the suit and that it had no jurisdiction to order a retrial and to convert the suit into one for damages simpliciter. This contention was repelled by the High Court and it was held that when the Court holds in its discretion that neither specific performance of the agreement nor ah injunction against the Defendant would be a proper remedy on the ground that pecuniary compensation is an adequate remedy It ought not to dismiss the suit but should either itself award damages or order an inquiry with regard to the same, though the Plaintiff has not specifically asked for damages.

Several decisions of other High Courts were referred to and approved and of these - ''Callianji Harjivan v. Narsi Tricum 19 Bom 764 (C) laid down the proposition stated above which the learned Judges of the Allahabad High Court approved and followed. With respect I agree with this view. The relief for mandatory injunction is discretionary, and where the Court in its discretion declines to grant the injunction, the Court has jurisdiction to award damages though no damages may have been asked for by the Plaintiff. It is the Court that compensates the Plaintiff for the relief which, in its discretion, it does not award and the question of the Plaintiff having to claim compensation really does not arise. The Plaintiff cannot be compelled to ask for compensation in the alternative and he is entitled to insist on his claim for a mandatory or perpetual injunction as the case may be. The Court of first instance here did award to the present Respondents compensation for which they had not asked and if that Court could do so it is difficult to see how the appellate Court could not do it.

The contention that compensation having been already awarded by the Court of the first instance, if the Plaintiffs expected a larger amount as compensation they ought to have claimed it in the appeal has really no relevance because the Plaintiffs did not at all want to have compensation and insisted on the relief of mandatory injunction. It was the Court which declined that relief and instead gave compensation. The Court had perfect competence to do so and there is no substance in this part of Mr. Chinoy''s contention.

The other part of the contention was that at any rate the learned District Judge could not have awarded more than Rs. 1000/- which was the limit of the pecuniary jurisdiction of the Munsiff, in the view. I take on the quantum of the compensation to be allowed in this case, the contention has only an academic interest and I do not therefore propose to consider it.

The question of compensation is material, since as I, will show hereafter, both the Courts were right in not granting a mandatory injunction and in awarding compensation instead. The trial Judge has awarded Rs. 130/- on the footing that the Defendant having filled up the well that much space has been added to his property. Probably what the learned Judge means to convey is that the Defendant will be entitled to use that much space exclusively and the Plaintiffs will not have an access to it. The sum has been no doubt arrived at by a rule of the thumb method, but since the Defendant did own the land covered by the well and the Plaintiffs had only the right to draw water from the well, it had to be more or less a figure which in the opinion of the Judge was adequate.

The District Judge has taken the view that the only injury to the Plaintiffs was that they would have to incur some additional expenditure for bringing water for bathing and worship purposes from Anr. well. The Plaintiffs are Vaishnavs of the Vallabh cult and they claim to be ''Marjadis''. It is in evidence and the fact is not disputed that Marjadis, by reason of their belief, do not use municipal tap water for purposes of bathing and worship and although it is not clear from the evidence whether they use tube well water or not, the fact that they use only well water suggests that tube well water too will not do for these purposes.

The learned Judge assumes that a servant would have to be engaged for fetching water from Anr. well, the nearest well being the one situated in the Panchnath Temple, which is across the road opposite the Plaintiffs'' property, and that it will mean an additional expense of Rs. 5/- per month. The sum necessary to meet this expense capitalized at the rate of 4 per cent, would come to Rs. 1500/- and on this basis the learned Judge has awarded the compensation. This line of reasoning is however not correct because neither the Plaintiffs nor their witnesses say that they would be required to engage a servant for fetching water for bathing and worship purposes. The evidence does not disclose that they have engaged a servant for this specific purpose till now or that they will be required to do so in future. The well in the Panchnath Temple is very close and no servant need be engaged.

A(SIC) any rate, there is no evidence on the point rand in the absence of evidence it will not be correct to hold that a servant will be required to be engaged. According to witness Manharlal Chandulal, Exh. 17, it is only the members of the family of the Marjadi who alone can fetch water for the Marjadi which means that water fetched by a servant will not do. Therefore the assumption on which the learned District Judge has proceeded is incorrect and the compensation cannot be awarded on that basis. The sum is far too excessive, and in my view Rs. 300/- would be adequate compensation to award to the Plaintiffs in this case for the loss of the right to take water from the well and for that purpose the right of passage through the balcony.

Mr. Chinoy urged rather faintly that the Plaintiffs'' right to take water was lost by non- user for over two years before the suit. The plea is ill conceived because the right claimed here does not rest on a prescriptive easement and Section 15, Easements Act has no application. It is not therefore necessary that the right should have been enjoyed within two years of the suit. The case here is of an extinction of a discontinuous easement which was annexed to Plaintiffs'' property and that easement can be extinguished only by twenty years non-user u/s 47, Easements Act. Such non-user is not proved and the Plaintiffs'' right is not extinguished.

As for the cross-objections, according to the concurrent finding of both the Courts, which is conclusive and binding in Second Appeal, the door connecting the balcony with the Plaintiffs'' doors had been locked since Samvat Year 1996 and since then the Plaintiffs had not used the well for nine years. The well was dry for most of the year and such water, as it had in the remaining part of the year, was not drinkable and the well rather served as a breeding place for mosquitos. The Municipality too had permitted the Defendant to close the well on the ground that it was a nuisance to the neighbours.

The learned District Judge also finds that by keeping the well open injury was likely to be caused to the Plaintiffs themselves. The Plaintiffs have already a tube well in their premises as also municipal water connection and the only inconvenience that might be caused to them by closing the well is that they may be required to fetch water for bathing purposes of the person doing the worship and for the purposes of the puja itself. This, as both the Courts have held is scarcely a justification for keeping the well open. I agree with the Courts below therefore that this is not a fit case for granting a mandatory injunction.

In the result therefore I modify the decree of the lower appellate Court by awarding Rs. 300/- as compensation instead of Rs. 1500/- awarded by the said Court. The rest of the lower Court''s decree is confirmed and the appeal in that respect is dismissed. The parties to bear their own costs of the appeal. The cross-objections fail and are dismissed with costs.