The grant of mandatory injunction is a discretionary remedy and the facts of each case greatly weigh in coming to the conclusion whether compensation in lieu of demolition could be ordered or not.

A.P. Misra, J.

1. THE present Second Appeal arises out of a suit for possession of the land and for demolition of unauthorised construction standing thereon. THE suit was instituted by one Munni Lal alias Mulla. He died during the pendency of the suit and his sons and legal representatives were brought on the record.

2. THE brief facts of the case, as alleged by the plaintiff, are that Smt. Belsi was the owner of house no. 38 in Mohalla Mahanpura in the town of Ghazipur. THE house stood on the land in suit shown by letters ' FGKLF ' in the plaint map. Smt. Belsi then sold the house to Munni Lal on 7th March, 1946 for a consideration of Rs. 69-15 Annas 9 Paise and thereafter Munni Lal entered into possession of the same. It is alleged that during absence of Munni Lal the appellant Pabbar Ram trespassed on the land in suit and constructed a room ' FGIN ' and walls ' LN ' and ' JK ' as shown in the plaint map. THE defendant-appellant Pabbar Ram denied the plaint allegations. According to him, the disputed constructions have been made on his own foundation in the land of courts of ward after taking its permission. It is also not in dispute that Smt. Belsi was the maternal grandmother of the appellant. THE defendant-appellant denied the claim made by the plaintiff in suit.

Learned Munsif decreed the suit and held that the house of Smt. Belsi existed on the land in suit and was sold to Munni Lal on 7th March, 1946. Thereafter Munni Lal became owner of the said house and entered into its possession. It is also found by the trial court that the appellant did not take the land in suit from the courts of ward and had not made the disputed constructions on old foundation. It is also held that the suit was not barred by time nor by estoppel. The trial court directed the appellant to remove the unauthorised construction and hand over possession of the land in suit to the respondents. In appeal, the lower appellate court further held that since it was a common case of the parties that Smt. Belsi was owner of house no. 38, it could not be doubted that she was not the owner of the same. The appellate court actually relied on Mulla's Transfer of Property Act, IVth Edition at page 288 to hold that existence of unregistered sale deed (Ex. 9) will not defeat the title of Munni Lal which has been proved from the evidence on record. According to quotation from Mulla's " in the case of tangible immovable property worth less than Rs. 100/- if the transfer is not made by delivery, there may be a registered sale deed and unregistered deed would be invalid and would not operate as constructive delivery. But if there is delivery, it is as already stated not rendered nugatory by the existence of an unregistered sale deed. " The appellate court further did not accept the appellant's contention on the basis of entry in the Municipal Assessment Register. It cannot be doubted that the right of the appellant will only step in, if at all, after the death of Smt. Belsi. In the present case, if the property itself was transferred by Smt. Belsi prior to her death, there could be no question of any inheritance of the property and the entry, therefore, could not be relied on. In this case I find that both the courts below recorded a finding that the sale was made by Smt. Belsi of the disputed house to the plaintiff. Money was paid and possession was delivered which is a finding of fact. It further recorded a finding that the house of Smt. Belsi existed on the land in suit and the appellant had no right to erect any building on the said land on the basis of the alleged permission of the courts of ward or otherwise. It is in these lights the suit for demolition and possession was decreed by both the courts below. The appellant does not raise any such ground which calls for any interference in these findings.

3. HOWEVER, in the end, the learned counsel for the appellant Sri S. K. Verma urged that instead of ordering for demolition the court could have decreed for