Courts should grant mandatory injunction when evidence justifies it, and pecuniary compensation may not suffice in cases of deliberate trespass and destruction of property boundaries.

Appellants are the defendants. Plaintiffs (respondents) filed the suit for prohibitory and mandatory injunction on the allegation that the defendants have demolished the western boundary of their property for laying a pathway. Plaintiff's also sought for a mandatory injunction to restore the western boundary in its original condition. The trial Court decreed the suit and granted permanent prohibitory. injunction restrainirig the defendants from trespassing upon the plaint schedule property or destroying its boundaries or committing any acts of waste therein. They were also directed by a mandatory injunction to restore the western boundary of the plaint schedule property in its original condition. The SubJudge confirmed the judgment and decree of the trial Court and dismissed the appeal by the defendants.

2. In view of Ext. C-2(a) survey plan, it was found by the Courts below that no portion of the plaint schedule property is purampokku as contended by the defendants. The Courts held that western boundary wall of the plaint schedule property was demolished at the instance of the defendants on the eve of suit and also after suit: That being a finding of fact cannot be assailed in the Second Appeal. Defendants could not establish any justifiable reason for their acts.

3. Contention of the defendants is that as the pathway through plaintiffs' property has become a fait accompli pecuniary compensation rather than mandatory injunction would meet the ends of justice. Defendants have expressed their readiness and willingness to pay compensation to the plaintiffs as determined by this Court. Learned counsel for the plaintiffs submitted that pecuniary compensation is no answer to the invasion of plaintiffs' rights in utter disregard of law.

4. In a case where evidence justifies mandatory injunction Courts should not hesitate to grant it and substitute the relief of monetary compensation in lieu of it. As the right of the plaintiffs was infringed with impunity, pecuniary compensation is hardly the answer. Commission was taken on the date of suit and even on knowing about the institution of the suit defendants continued with their wanton acts of destruction of the boundary wall. In the circumstances of the case, pecuniary compensation would be hardly sufficient to meet the ends of justice.

5. Counsel for the defendants relying on Lalji v. Vishvanath (AIR 1929 Bom 137) (1313) contended that in the absence of dishonesty of purpose of or knowledge of trespass, the case did not call for a mandatory injunction, but was one where substantial monetary compensation would suffice. This ruling has not application to the facts of the case in hand as the evidence , really discloses the fact that trespass continued even after the institution of the suit. As the defendants caused the destruction of the boundary wall even after the institution of the suit, it

cannot be held that it is a case where pecuniary compensation in lieu of mandatory injunction would suffice. As the plaintiffs have approached the Court for relief of mandatory injunction and as the evidence shows that the western boundary wall of the plaintiffs' property was destroyed with scant regard of their proprietary right, award of monetary compensation cannot be the just remedy. In Bodi Reddy v. Appu Goundan (1970 (2) Mad LJ 577) the Madras High Court held that unless acquiescence amounting to equitable estoppel is established, plaintiff cannot be denied of possession, which he has asked for. In a case where the defendant has trespassed upon the plaintiff's property and caused mischief or destruction or constructed any structures plaintiff who is entitled to recover possession of the land can always seek for mandatory injunction. Just like an encroacher who puts up any construction on another's land not being entitled to it has to remove the same, so also as in the present case where the boundary wall was destroyed by the intentional and deliberate acts of the defendants plaintiffs