JUDGMENT

THOMMEN, J. :— This is a in appeal by special leave arising from the judgment and decree dated 29th September, 1983 of the Allahabad High Court. The present appellants are the legal representatives of the plaintiff in Suit No. 254 of 1970 which was a suit for perpetual injunction. That suit was dismissed by the Trial Court, but on appeal by the plaintiff, it was decreed by the First Appellate Court. That decree was challenged in Second Appeal by the present respondent-defendant. The High Court by the impugned judgment allowed his appeal.

2. The plaintiff had also filed Suit No. 242 of 1973 against the present respondent, Molid. Shafi, his son, Fazal Haq, Ishwar Singh and Kunwar Singh (defendants Nos. 1 to 4 respectively). That suit was for cancellation of a sale deed executed in favour of Fazal Haq by Ishwar Singh and Kunwar Singh. The suit was dismissed by the Trial Court, but on appeal by the plaintiff, the First Appellate Court came to certain findings in favour of the plaintiff as regards his title and possession and remanded the case to the Trial Court for fresh disposal after trial of certain additional issues framed by the Court. Against the order of remand, the defendants filed an appeal in the High Court. That First Appeal From Order was also allowed by the High Court by the impugned judgment. The High Court held that the remand was unnecessary and disposed of the suit itself on the merits. In doing so, both the Second Appeal and the First Appeal From Order were heard together by the High Court by consent of parties, and, as observed by the High Court, the two suits for all practical purposes had been consolidated.

3. The appellants have brought the present appeal against the judgment aria decree of the High Court only in so far as it concerns Suit No. 254 of 1970. There is no challenge against the judgment to the extent it relates to Suit No. 242 of 1973.

4. Aollowing the defendants appeal, the High Court came to certain definite findings in favour of the plaintiff as regards his title and possession. The High Court Court found that the plaintiff was the owner in possession of the suit property at the time of the institution of the suit, and that the defendant had ecroached upon that property during the pendency of the proceedings in the courts below and constructed certain rooms. The High Court further found that although the plaintiff was in law entitled to the relief sought for peaceful and undisturbed enjoyment of the property, it would be an economic waste to demolish the structures already constructed by the defendant, albeit during the pendency of the proceedings, and it would be just and proper to allow the defendant to retain possession of the area which he had constructed upon on payment to the plaintiff by the defendant of a sum of Rs. 5,000/- as compensation. The plaintiff is aggrieved by this direction. Hence the present appeal.

5. Counsel for the plaintiff points out that the High Court has failed to come to a categoric and precise finding as regards the exact area encroached upon by the defendant by constructing three shop rooms.

6. The High Court says :

"The plaintiff is the owner of the house on plot No. 1122 and the land of plot No. 1123 was the Agga or Sehan Posh Darwaia of the plaintiff s house on plot No. 1122 but at the same time it could also not be denied that the defendant had some right of passage through this land by reason of his ownership of the house on plot No. 1125".

The High Court further says that the suit giving rise to the second appeal related to plot No. 1115. That was the area which had been encroached upon by the defendant during the pendency of the proceedings. The defendant constructed a total length of three shops in that property. The defendants construction was partly on plot No. 1123 having "the Agga or Sehan Posh Darwaia, of the plaintiffs house on plot No. 1122" and partly on plot No. 1115 relating to which the plaintiff sought injunction. These properties have not be