Present: De Sampayo and Porter JJ.

SEGO MADAR v. MAKEEN.

496-D. C. Colombo, 1,054.

    Injunction-Building on another's land-Order to remove encroachment- Damages.

Defendant brake down an old house and built a new one, and in doing so encroached on a small strip of unbuilt land belonging to the plaintiff. Plaintiff prayed for an injunction to compel the defendant to remove the building and restore the strip of land.

Held, that in the circumstances if the plaintiff could be compensated by way of damages, the injunction should not be granted.

THE plaintiff was the owner of the house bearing assessment No. 22c as shown in the plan B filed of record, whilst defendant was the owner of the house to the north bearing assessment No. 22B.

Defendant pulled down his old building for the purpose of erecting a new one on its site, and in the course of such erection he broke and dug into plaintiff's wall and wrongfully blocked a door leading into a room in plaintiff's house and also cut a portion of the eaves of his roof. Plaintiff also complained that defendant encroached on his premises to the extent of about 14 inches at its widest part. He valued his right to Rs. 1,000, and claimed Rs. 250 damages. The District Judge granted an injuction ordering the defendant to remove the building.

A. St. V. Jayewardene, K. C. (with him Ratnam), for defendant, appellant.

Samarawickreme (with him Bartholomeuaz), for plaintiff, respondent.

May 3.1, 1922. DE SAMPAYO J.-

This is an action in respect of an alleged encroachment. The parties are owners of two lands adjoining each other situated at Piachaud's lane. On the plaintiff's land, which is to the south of the other, there is a house occupying the whole breadth of the land. On the defendant's land to the north it would seem that there were some old buildings which the defendant broke- down to build a new house. He took the wall of the plaintiff's house as the common boundary, and he built the wall of the new house right against it. The plaintiff brought this action alleging that there was a small

strip of unbuilt land between his wall and the real boundary, and that therefore, the defendant by building his new house right up to the plaintiff's wall encroached on that unbuilt portion of land. he also complained that the defendant by the same work blocked a door which existed at point " Y " on the plaintiff's wall. Now the District Judge has found that this small strip, of land is really part of the plaintiff's land, and. that therefore there was an encroachment. I should say that the strip was so tiny that the District Judge was quite justified in his remark that if the parties had been more sensible they would not have gone to the expense of an action, which is quite out of proportion to the value of any interest on either side: There is no encroachment on the side of the Piachaud's lane, because it would seem that the defendant built just on the line now claimed by the plaintiff. But further in there is a very small strip at one end forming a very acute angle and at the other end forming a base 14 inches wide. As regards the door it is said that it was used to go to a water closet' tit the back compound along the strip which the plaintiff calls a passage. Now with regard to that, it is quite plain that the water closet can easily be reached without the use of this strip. In fact, one should say that the entrances from the back of the house into the yard behind would be very much more convenient and decent than the one claimed. However, this is the extent of the injury suffered by the plaintiff. He claimed, however, an injunction to compel the defendant to remove the building and restore the strip of land. The District Judge, apparently with some reluctance, gave the relief which the plaintiff had claimed. It is not quite possible for us to interfere with the District Judge's finding as to the existence of the encroachment. But I question w