Damages cannot be awarded for the loss that would be occasioned by total destruction of the grove of the plaintiffs.

( 1 ) THIS First Appeal from order has been filed by the defendants against the order dated 25lh nov. , 1981 issuing a temporary injunction against them restraining them from working their brick kiln till the disposal of the suit.

( 2 ) THE plaintiffs respondents filed a suit for injunction with the allegation that plots Nos. 1979/2, area II Biswas, 1980 area 1 Bigha 2 Biswas and 1982 area 2 Bigha 10 Biswas constituted a grove of plaintiff No. 1 and his brothers. The plaintiff No. 2 had entered into a registered agreement for purchase of the property aforesaid for a consideration of Rupees 1,50,000/ -. The aforesaid plots constituted a compact grove where there were 55 trees of mangoes, 69 trees of shisham, one tree of Jamuaya and one tree of Jamun and one tree of Bel. All the trees were fully grown up and the mangoes, Jamuniya and Jamun were bearing fruits. The defendants-appellants had installed a brick kiln in plots Nos. 1977, 1978 and 1979/1. By the working of the brick kiln the trees of the plaintiffs grove would die and due to the smoke trees will be damaged by the coal dust and the various harmful gases like Carbonic acid, sulpher compound, Sulpher Dioxide etc. The suit was filed for a permanent injunction restraining the defendants from working the brick kiln.

( 3 ) A written statement was filed refuting the case of the plaintiffs and further alleging that the defendants brick kiln was not going to affect the plaintiffs groves. It was further alleged that the defendants had obtained a licence for working the brick kiln in Oct. , 1981 and started constructing the kiln. The plaintiffs knowingly kept quiet and when the brick kiln was to be fired the suit was filed against the defendants. The suit itself has been filed on 12-11-1981. A commission was issued, whose report is on page 21 of the respondents paper book. It is accompanied by a map on page 24. The court below has considered the various objections and after considering the prima facie case held that the trees of the plaintiffs wore liable to be damaged by working of the brick kiln and issued the injunction. It may be mentioned that according to the map prepared by the Commissioner, which is not disputed before us, the brick kiln is adjacent to the grove. The trees of the grove are 54, 55 and even 60 feet high and the circumference of the trunks is up to 7 9":

( 4 ) THE learned counsel for the appellants has raised two points before us. The first argument of the learned counsel was that it was a case where damages could have been awarded and therefore the suit was not maintainable in view of Sub-section (3) of Section 38 of the Specific Relief Act.

( 5 ) THE argument of the learned counsel for the appellants was that if the crops or the trees of the plaintiffs are damaged, they can be compensated in terms of money. The learned counsel relied upon a case reported in 1981 AH LJ 183, Hans Rai v. IInd Addl. District Judge, Gorakhpur. In that case the suit for injunction was filed against the brick kiln owner. The plaintiff owned a mango grove. It was found that the brick kiln was on the north of the plaintiffs grove at a distance of 790. It also came in evidence that the plaintiff was realising yearly damages from the other owners of brick kilns in the locality. Under these circumstances it was held that as the plaintiff was realising the damages from other owners, there was no reason why he could not realise damages in the instant case as well. The brick kiln was not very close to the grove. Expert evidence was produced to prove the extent and type of damage by the working of the brick kiln. As such this court held that damages could be awarded to compensate the plaintiff for his loss and he was not entitled to an injunction. The facts of the present case are, however, quite different. From the map prepared by the Commissioner it is apparent that the brick kiln was in the adjoining plot. The trees are at a distance of about twenty yards from the brick