JUDGMENT V. K. Mehrotra, J. - This second appeal is by the defendants in a suit filed by the plaintiff-respondents for demolition of a portion of a house, recovery of possession and permanent injunction. The suit was dismissed by the trial Court, but partly decreed by the lower appellate Court. 2. The case with which the plaintiff (Abdul Wahid, since deceased and now represented by his L. Rs.) approached the Court for relief, was that he was the bhumidhar of khasra plot No. 62 situate in village Chakia alias Chak Niratul in Allahabad City and was the owner of one biswa land in khasra plot No. 95 as abadi plot. Abdul Samad (appellant in this Court) had nothing to .do with these plots. The plaintiff claimed to have constructed a cattle shed on the portion owned by him on plot No. 95 and the eastern portion of khasra plot No. 62. This was forcibly demolished by his Brother Abdul Samad in the year 1970 who then started making constructions on the site of the cattle shed. Subsequently, additional constructions were made by Abdul Samad in the year 1974 over the land. Abdul Wahid sought removal of the constructions made by Abdul Samad, and re-delivery of possession to him, apart from seeking injunction restraining Abdul Samad from interfering with his possession. 3. Abdul Samad, in defence, took the plea that the constructions in dispute lay on plot No. 95 and not of khasra plot No. 62. The plaintiff had nothing to do with the land over which the constructions stood. It was Abdul Samad who had obtained permission of the erstwhile Zamindar for initially setting up a cattle shed and thereafter he replaced it by a residential house. 4. The suit was tried by the Additional Civil Judge, Allahabad. The learned Judge, after considering the evidence both oral and documentary, brought on the record by the parties, concluded that the plaintiff had failed to establish that he was the owner of the site on which the disputed house had been raised by Abdul Samad. He also found that the disputed construction did not lie on plot No. 62 at all. It lay on plot No. 95 of which the plaintiff was not the owner. The suit was, therefore, dismissed. The decree was assailed in appeal. 5. The appeal was hear by Vth Addl. District Judge, Allahabad. It was partly allowed. He also found that the disputed construction did not lie on plot No. 62 at all. It lay on plot No. 95 of which the plaintiff was not the owner. The suit was, therefore, dismissed. The decree was assailed in appeal. 5. The appeal was hear by Vth Addl. District Judge, Allahabad. It was partly allowed. The learned Judge, on reappraisal of evidence, came to the conclusion that some part of the disputed construction also lay on khasra plot No. 62. That construction was raised recently. The major portion of the construction lay on plot No. 95 with which the plaintiff had nothing to do. 6. As far as plot No. 62 is concerned, the conclusion arrived at by the Vth Addl. District Judge was that the plaintiff was its bhumidhar and defendant had no concern with it. In the opinion of the learned Judge, the constructions were made upon a part of this plot in the year 1965 or thereabout. The extent of the house of Abdul Samad lying on a portion of plot No. 62 was contained in the scale map (paper No. 33/C/6) prepared by the Survey Commissioner appointed by the Court. It was directed to be demolished by the Judge. That map forms part of the decree of the appellate Judge. 7. Both the courts below have concurrently found that plaintiff Abdul Wahid had nothing to do with plot No. 95. The trial Judge was of opinion that the entire constructions in dispute lay over this plot. The lower appellate Court found that some part of the construction lay over a portion of plot No. 62. That plot, according to both the Courts below, was of the plaintiff. On this finding, it is clear that the plaintiff could lay claim to recover possession over the part of plot No. 62 encroached upon by the defendant, after demolition of the portion of the construction standing over it. In fact, the submission in this Court on behalf of the plaintiff-respondents was that on the finding of fact recorded in the case, the decree for demolition and for possession thereafter passed by the Additional District Judge in respect of plot No. 62 needed to interference. 8. In fact, the submission in this Court on behalf of the plaintiff-respondents was that on the finding of fact recorded in the case, the decree for demolition and for possession thereafter passed by the Additional District Judge in respect of plot No. 62 needed to interference. 8. The question which really arises in this appeal is whether in the circumstances of the case the decree of demolition of a portion of the constructions belonging to the defendant lying on plot No. 62, should be upheld. The learned counsel for appellants, Abdul Samad and his wife Smt. Zahida Bibi, has pleaded that the decree should not be upheld. 9. The finding of the Additional District Judge, as the first appellate Court, is that the disputed construction lying on the aforesaid plot No. 62 was raised in the year 1965 or thereabout. When the suit was initially filed on May 11, 1971, the plaintiffs case was that the cattle shed constructed by him on the eastern portion of plot No. 62 had been demolished by the defendant in the year 1970 and construction on the site thereof was made by him. No mention of plot No. 95 in that context was made in the plaint. The plaintiff had also filed an application for an ad interim injunction. The defendant in response to the notice of this application, filed an affidavit (paper No. 17-C) on May 26, 1971. It was asserted by him, in para 2 thereof, that the construction in dispute was not made on plot No. 62 but stood on abadi land (plot No. 95) with which the plaintiff had nothing to do. It was then that the plaintiff made an application for the amendment of the plaint on July 24, 1971 saying that the cattle shed which had been demolished by the defendant stood over plot No. 95 and the eastern portion of plot No. 62. 10. The map forming part of the decree of the court below shows that the dimension of plot No. 62 are 21 Latha north-south (towards west) and 23 Latha east-west (towards south). The portion of this piot, which is covered by the construction sought to be demolished, it about IV2 Latha east-west and 6 lathas north-south. 10. The map forming part of the decree of the court below shows that the dimension of plot No. 62 are 21 Latha north-south (towards west) and 23 Latha east-west (towards south). The portion of this piot, which is covered by the construction sought to be demolished, it about IV2 Latha east-west and 6 lathas north-south. According to the counsel for Abdul Samad, a total area of about V2 (one half) biswas is covered by the disputed construction out of the total area of about 22 biswas of plot No. 62. This statement was not challenged on behalf of the plaintiff in this Court. The area under encroachment is obviously not much. The construction over this small portion of plot No. 62 were raised around the year 1965 by the defendant. The plaintiff let it be there for several years until the suit was filed in 1971. It has not been found that he objected to the construction when it was being raised by his own brother Abdul Samad. The plaintiff has been found to have laid an incorrect claim of ownership to plot No. 95. The lower appellate Court had found that on that plot the defendant had an old house. The plaintiff has not mentioned anything in the plaint nor has he established any injury to him resulting from the encroachment found to have been made over the small portion of plot No. 62 by the defendant. 11. The relief claimed by the plaintiff is equitable in nature. To grant such an equitable relief is discretionary. The Court is called upon, in such cases, not only to look to the effect of the grant of relief but also to the conduct of the plaintiff seeking it. The Court is not called upon to grant the relief as a matter of course. It may very well be refused. If, by his conduct, the party seeking it has forfeited his claim to the relief. Or, circumstances exist making it inequitable to grant the relief. The principles in this regard are well settled. 12. What then is the conduct of the plaintiff in the instant case. Apart from anything else, on the finding recorded by the lower appellate Court, the disputed portion of the construction was raised in the year 1965 or thereabout. Plaintiff sought its removal only in the year 1971. The principles in this regard are well settled. 12. What then is the conduct of the plaintiff in the instant case. Apart from anything else, on the finding recorded by the lower appellate Court, the disputed portion of the construction was raised in the year 1965 or thereabout. Plaintiff sought its removal only in the year 1971. It is obvious that he constructively acquiesced in the encroachment. He did nothing for years and remained silent. He has not established any injury resulting to him from encroachment over a very small portion of plot No. 62. He came to Court with an incorrect claim over plot No. 95 and persisted in it even before the lower appellate Court. The evidence in the case indicates that defendant Abdul Samad has a large family and that the extension, resulting in encroachment upon a small portion of plot No. 62, in his residential house, has been necessitated on account of it. Further, that to the west of the disputed construction lie agricultural fields. This was stated by the plaintiffs own witness P.W. 3 Abdul Wahid, the plaintiff. According to his own statement, resides in a house given to him by his father bearing No. 105, Chak Niratul. The plaintiffs own case is that they were six brothers in all and in their ancestral house they had one kothi (small room) each. 13. The circumstances of the case do not justify the upholding of the decree of demolition even in respect of that part of the construction raised by defendant Abdul Samad in about the year 1965, which was found to construe an encroachment over plot No. 62. The lower appellate Court did not advert to the principles for the grant of a discretionary relief like the one for demolition and recovery of possession over the encroached land and proceeded to grant that decree merely upon its conclusion that some portion of the construction raised by the defendant was found to exist on plot No. 62. It proceeded to grant the decree, as it were, simply because it was lawful to do so. Its decree cannot be upheld. 14. The appeal succeeds and is allowed. The decree of the lower appellate Court is set aside and plaintiffs suit is dismissed. It proceeded to grant the decree, as it were, simply because it was lawful to do so. Its decree cannot be upheld. 14. The appeal succeeds and is allowed. The decree of the lower appellate Court is set aside and plaintiffs suit is dismissed. The appellants are, however, directed to pay the costs of the plaintiff throughout, for the decree for demolition is being vacated on equitable considerations in spite of the undoubted finding that Abdul Samad had encroached upon plaintiffs property.