Discretion of Court to grant mandatory injunction or award damages.

S.A. No. 1113 of 1966.- This appeal arises out of a suit filed by the appellant herein for declaration of his title to and possession of a small extent of property from the respondent herein and for injunctions, both permanent and mandatory. The appellant and the respondent are adjacent owners of the land, the appellant being the owner of the northern portion and the respondent being the owner of the southern portion. The case of the appellant was that in or about June, 1962, the respondent encroached upon a portion of his property by shifting his stone ridge towards the north. As soon as he came to know of the encroachment, he moved the Revenue Department and requested the officials to effect measurement of the boundary line and accordingly the boundary line was measured in November, 1962. The encroachment made by the respondent was made known to him. As the respondent did not remove the encroachment and surrender the encroached portion to the appellant, when requested to do so by him, the appellant instituted the suit. The respondent’s case was that the disputed property did not belong either to the appellant or to the respondent, but belonged to the Government and the respondent did not encroach northwards by shifting the stone revetment, as alleged by the appellant. The learned District Munsif found that the disputed portion belonged to the appellant and the respondent had encroached upon an extent of 1½ cents of land belonging to the appellant by shifting his stone ridge towards the north in or about June, 1962, and therefore the appellant was entitled to a decree declaring his title to the suit property and a permanent injunction restraining the respondent from in any manner interfering with the appellant’s possession and enjoyment of the same and also a mandatory injunction directing the respondent to remove the stone wall put up by him on an extent of 1½ cents of land and surrender possession of the same to the appellant within a period of one month, failing which the appellant would be at liberty to have the said encroachment removed through Court at the respondent’s expense. Against this judgment and decree of the learned District Munsif, the respondent preferred an appeal and the same was disposed of by the learned Additional Subordinate Judge of Salem. The learned Additional Subordinate Judge agreed with the conclusion of the learned District Munsif that the disputed property belonged to the appellant and the respondent encroached upon an extent of 1 ½ cents in the land belonging to the appellant herein. However, with regard to the relief to which the appellant was entitled, the learned Subordinate Judge took a different view. He pointed out that the portion encroached upon was not cultivated and even according to the appellant, it was a rocky portion and it was used as a pathway. He was of the view that if the respondent was directed to remove the stone revetment, great hardship would be caused to him. Therefore, the learned Additional Subordinate Judge recorded: “ Taking into consideration the fact that the plaintiff’s Appellant’s) revetment is to the north of the encroached portion and the encroached portion is only 1½; cents, a negligible extent, and as this portion is not fit for cultivation and it is used as a pathway by the villagers, I think it will be equitable and right to direct the defendant (respondent) to pay Rs. 100 as compensation for the encroachment instead of directing him to remove the encroached portion”. In the result, he allowed the appeal of the respondent in part and modified the decree of the trial Court by substituting the decree for payment of compensation of Rs. 100 instead of granting the reliefs which were granted by the learned District Munsif, it is against this judgment and decree, the present second appeal has been preferred by the plaintiff.

The case of the appellant is that on the facts and the circumstances of this case he is entitled to the grant of an injunction and