JUDGMENT : STANLEY, J. 1. This appeal was referred to a Bench of three Judges on the representation that questions arose in it which were the subject of conflicting decisions of this Court. We do not find that the decisions are conflicting. We desire in the first place to say that any observations which are made in this judgment are directed to the particular circumstances of this case. Every case of this nature must be decided in view of the facts which are established in evidence. It appears in this case that the defendant-respondent and the plaintiffs-appellants are co-sharers in a certain village and that the defendant proceeded to erect a wall upon a portion of the common land. Immediately, on his commencing the building, proceedings were taken by the plaintiffs in the Criminal Court to prevent the continuance of the erection, but inasmuch as it was found that the defendant was in possession of the land upon which the wall was being constructed the Criminal Court could give no redress, and consequently it became necessary for the plaintiffs to seek the aid of the Civil Court. Accordingly the suit, out of which this appeal has arisen, was instituted. Now it has been established by the evidence that the land in question is common land. It has also been found, and it is clear from the evidence, that so soon as the defendant began to construct the, wall, the plaintiffs objected and took the proceedings to which we have referred. They therefore in no way acquiesced in the building of the wall. Under these circumstances it seems to us that the right of the plaintiffs to maintain the suit was clear, and so the Court of first instance decided. On appeal, however, the learned District Judge, though upholding the view of the law propounded by the Court of first instance, came to the conclusion that the case was not one in which the Court in the exercise of its discretion should grant a mandatory injunction for reasons which appear to us to be wholly erroneous. On appeal, however, the learned District Judge, though upholding the view of the law propounded by the Court of first instance, came to the conclusion that the case was not one in which the Court in the exercise of its discretion should grant a mandatory injunction for reasons which appear to us to be wholly erroneous. He says in the course of his judgment, “The lower court's view of the law no doubt is correct, but considering that the area was reclaimed by the plaintiffs and that others (the plaintiffs included) who have done the same, have been allowed to build on the areas thus reclaimed without any objection, and that no special damage has accrued to any one, I do not think that the case calls for the issue of any injunction.” 2. Now the lower appellate court admits that the view of the law propounded by the Court of first instance was correct, but comes to the conclusion that the Court ought not to grant a mandatory injunction because the plaintiffs themselves had done a similar unlawful act to that for which they in this case sought redress, that is, in other words, that a wrong having been previously committed by the plaintiffs, redress ought not to be given to them in respect of a wrong done to them by the defendant. This is not the law. Then the learned District Judge says that no special damage has been proved. It is not necessary in a case of this kind to prove special damage. The fact that the wall has been constructed upon common land is of itself sufficient to call for the interference of the Court. Now two objections have been raised to the hearing of this second appeal. 3. The first that on second appeal lies tinder the provision of section 584 of the Code of Civil Procedure, and the second, that this Court ought not to interfere when a discretion has been exercised by a Court such as was exercised by the lower appellate court in this case. The answer to the first objection is that the case comes within section 584 of the Code of Civil Procedure because the decision of the lower appellate court was a decision contrary to law as specified in the memorandum of appeal. The answer to the first objection is that the case comes within section 584 of the Code of Civil Procedure because the decision of the lower appellate court was a decision contrary to law as specified in the memorandum of appeal. The lower appellate court admitted that the view of the law entertained by the Court of first instance was correct, but refused to apply the law to the case. This is an answer to the first objection to the hearing of the appeal. As regards the second objection it can be equally readily disposed of. The court below did not exercise a judicial discretion in refusing a mandatory injunction. It exercised an arbitrary discretion, not such a discretion as can be termed a judicial discretion. For these reasons we allow the appeal, set aside the decree of the lower appellate court, and restore the decree of the Court of first instance with costs in all Courts including in this Court fees on the higher scale.