The main legal point established in the judgment is the exclusive ownership of the road by one party and the establishment of encroachment for building an extension of the kitchen.

Pandrang Row, J.

1. These appeals arise out of two second appeals, namely Nos. 894 and 895 of 1931, which in their turn arise out of two connected suits of 1923 on the file of the District Munsifs Court of Vizagapatam. One of them was instituted by the partners of Baughmul Sowcar against Mr. Jala Durgaprasadarayudu, a lawyer of Rajahmundry, and the other suit was by the lawyer as the plaintiff and the Sowcars as the defendants. The suits arose out of a dispute regarding the boundary between the properties belonging to the two parties on the Beach Road at Vizagapatam. The dispute was originally taken to the notice of the Survey Officer and after a decision by the survey authorities these suits were filed, both parties being dissatisfied therewith.

2. Speaking broadly, the dispute relates to three items: (l) The road which lies between the two properties which was claimed by Mr. Jala Durgaprasadarayudu as a common or joint road, but which according to the Sowcars was their own exclusive property; (2) that the wall built between the properties by the Sowcars and a small strip of land varying in width from 1 1/2 to 2 1/4 feet by the side of it constitute an encroachment by the Sowcars on Mr. Jala Durgaprasadarayudus property; and (3) that there was also an encroachment of about 3 1/3 square yards by the Sowcars by building an extension of the kitchen in their property. It was found by both the Courts below that the road in question was the exclusive property of the Sowcars and that finding, in our opinion, was not open to question in second appeal and there has been no interference with that finding in second appeal. As regards the encroachment by extending the kitchen also there has been no interference in second appeal. It is as regards the second item which relates to the wall and the strip of site adjoining it that Wadsworth J. modified the decree of the lower Appellate Court and directed the restoration of the first Courts decree relating thereto. The point involved was not whether it was an encroachment or not, because the fact of the encroachment was established beyond doubt to the satisfaction, of both the Courts below. But Wadsworth J. thought that the lower Appellate Court was not justified in modifying the decree of the first Court for delivery of possession of the portion encroached upon by substituting a decree for money damages instead. It is contended before us in Letters. Patent Appeal No. 101 of 1935 that this, interference in second appeal was not justified or proper. In the other Letters Patent appeals by Mr. Jala Durgaprasadarayudu, the finding about the ownership of the road in favour of the Sowcars is questioned as well as the disallowance of the claim to recover possession of the small extent of 3 1/3 square yards encroached upon by the Sowcars.

3. The facts of the case need not be narrated further for the purpose of deciding these Letters Patent appeals. Reference has been, made to a number of cases and in particular to Pazundaung Bazaar Co. Ltd. v. Ellermans Arracan Rice and Trading Co. Ltd., (1934) 21 A.I.R. Bang 144. This however is a case in which we are not concerned with an invasion of one mans rights of easement by another, but with an actual encroachment or trespass by one on the property of another. In the latter class of cases, there is in our opinion, no scope for the contention that money damages may be given in certain circumstances. The decisions which deal with the question of awarding damages as the more appropriate remedy instead of an injunction do not apply to the present case where the encroachment has been established, and there is no other remedy possible except that of delivery of possession. We are therefore of opinion that so far as the wall and the strip of site adjoining it are concerned, the proper decree to be passed in the suit is the decree that was passed by the first Court and that portion of the decree of the first Court must therefore be restored; it would thus follow