JUDGMENT Deoki Nandan, J. - This is a plaintiffs second appeal in a suit for demolition of a Mandai shown by the letter X, a Nand shown by the letter Y, stair shown by the letter S, and doors shown by the letters 0 P on the map annexed to the plaint as also the brick flooring of the lane shown by the letters ABCD on the said map and for restoring the lane to its original condition so that the plaintiffs may continue to pass through it as before. Relief for possession over the land was also claimed in the alternative in case it was found that the plaintiffs had been dispossessed by the acts complained of. 2. The plaintiffs Raghunandan and Baldeo are brothers. The plaintiff Raj Narain is the son of Sukhnandan who was said plaintiffs' brother. Defendants Mewa Lal and Mauji are the sons of Ram Nandan who was also a brother of the plaintiffs. The parties thus belong to the same family. There was partition among the brothers by deed (Ext. A2) dated Jan. 8, 1926. According to the boundaries of the property allotted to Ram Nandan and Baldeo by the said deed, the land now in suit was not shown as a lane, and, according to the lower appellate Court, it formed part of the property allotted to Ram Nandan if it fell in plot No. 425. There was a suit for partition between the parties, being Suit No. 47 of 1938 : Mewa Lal v. Sukhnandan. That suit was compromised, and under the final decree dated 24th Feb., 1938, the land ABCD now in suit was shown as a common lane of the parties. The defendants Mewa Lal and Mauji appeared to have purchased the land immediately to the south of the land in suit and claimed that the lane ABC D was not a lane, but was a part of the Sahan of their houses. 3. The following issues, that were framed by the trial court, would bring out the controversy between the parties : - "1. Whether at the time of passing of the compromise decree in Civil Suit No. 47 of 1938, there existed any passage, on the land shown in the map of Amin by red scantling lines? If so was it left to be joint passage of the parties?" "2. Whether at the time of passing of the compromise decree in Civil Suit No. 47 of 1938, there existed any passage, on the land shown in the map of Amin by red scantling lines? If so was it left to be joint passage of the parties?" "2. Whether the defendants have illegally constructed any stair over the land in suit on 20-8-60? If so are the plaintiffs entitled to removal?" "3. Whether the construction over the land in suit are more than 12 years old? Its effect?" "4. Plaintiffs' relief if any?" "5. Whether the plaintiffs have acquired the right over the land in suit on the basis of easement of necessity, prescription, customary right and lost grant?" "6. Whether the court of City Munsif had no jurisdiction to entertain the plaint"? 4. Issue 6 was decided as a preliminary issue against the defendants on 27th July, 1962; and by judgment dated 11th Oct., 1962, the trial Court held on issue that the disputed passage does not exist in plot 426 but existed on plot 425 and since no relief was claimed in respect of plot 425, the issue was answered in the negative against the plaintiffs. On issue 5, it held that the plaintiffs have no right in the disputed land and in view of the said findings on issues 1 and 5, it held that issues 2 and 3 had become redundant; and on issue 4, that the plaintiffs were not entitled to any relief. In the result, he dismissed the suit by that judgment. The basis of this finding of the trial Court was the Amin's map and report which had been confirmed by it. I may, at this state, observe that, by an amendment of the plaint under the order dated 9th Dec., 1961, that is, before the said judgment of the trial Court, although it was still pleaded that the land in suit formed part of plot 426, it was pleaded that if it were found to exist on 425, even then the plaintiffs were entitled to relief on the basis of long user as a passage; and the statement that the land in suit was part of Khasra 426 was deleted from the description of the property at the foot of the plaint. Be that as it may, that judgment was set aside by the Court of the Second Additional Civil Judge, Varanasi, on appeal, by judgment dated April 18, 1964. The Amin's report relied upon by the trial Court was set aside. The findings and the judgment of the trial Court were also set aside and the suit was remanded for a fresh trial. A fresh survey commission appears to have been issued to the Civil Court Amin after remand. The map prepared by the Amin is Paper No. 163-Ga on the record and forms part of the trial Court's decree. By judgment dated 22nd July, 1967, the trial Court decreed the suit and directed the defendants to remove the disputed Mandai, Nand and stairs from the passage shaded red on the Amin's map. The defendants were not required to close their doors or to remove the brick flooring of the lane. The findings of the trial Court are : on issues 1 and 5, that it is not certain whether the land in suit lies in plot 425 or plot 426, but it is certain that it lies on the southern side of the house of Ram Nandan and was left as a lane under the compromise decree in 1938, that it was not necessary to get the plot number of the lane fixed by survey and that at the time of the passing of the compromise decree in suit 47 of 1938, the land in suit was left as a lane and passage for the joint use of the parties and further that the plaintiffs have acquired easementary right of passage over the land in suit by prescription: on issues 2 and 3, that the defendants have illegally constructed stairs over the land in suit on 20th Aug. 1960, and the same are liable to be removed, and that the constructions were not more than twelve years old, but they were new; and on issue 4, that the plaintiffs were entitled to the relief claimed. 5. The lower appellate Court has, by the judgment under appeal, reversed the trial Court's decree. According to the lower appellate Court, the lane was not in existence when the compromise was arrived at between the parties on Feb. 24, 1938 in Suit 47 of 1938. 5. The lower appellate Court has, by the judgment under appeal, reversed the trial Court's decree. According to the lower appellate Court, the lane was not in existence when the compromise was arrived at between the parties on Feb. 24, 1938 in Suit 47 of 1938. The lower appellate Court appears to have been impressed by the fact that the land immediately adjacent to the house of Ram Nandan allotted to him by the deed of partition dated Jan 8, 1926 was the land of Madho Kunbi. That land or a part of it would appear to have been purchased by Mewa Lal by a deed dated 26th April, I960 from Amarnath who appears to have become the owner of the land of Madho Kunbi. This purchase seems to have been the real cause of the trouble between the parties as it appears that the defendants did not want a common lane to cut across their house and the land so purchased from Amarnath which had been made part of it. A look at the Amin's map, which forms part of the trial Court's decree or even the plaint map clearly shows that between the houses of Raghunandan and Baldeo, there is a lane which gives them passage from east to west and it cannot be said that without the lane in dispute the plaintiffs could not pass from east to west. From the findings of the lower appellate Court, it appears that the land of the lane in suit, through which a right of passage was given by the compromise decree, formed part of Ram Nandan's house and only a right of passage was given to Raghunandan, Baldeo and Sukhnandan. It further appears that the lane in dispute had been blocked by the constructions raised by the defendants. The removal of those constructions and the restoration of the plaintiffs' right of passage through the land in dispute would be a source of constant trouble between the parties and is certainly not necessary for the more beneficial enjoyment of their houses by the plaintiffs. The removal of those constructions and the restoration of the plaintiffs' right of passage through the land in dispute would be a source of constant trouble between the parties and is certainly not necessary for the more beneficial enjoyment of their houses by the plaintiffs. Since the land of the lane in suit was not the joint property of the parties, that is to say of the plaintiffs and the defendants, but was the property of the defendants over which only a right of passage appears to have been recognised by the compromise of 1938, and it being not established that the right of passage was continuously exercised without interruption, rather it being clear that the right of passage was not necessary for the more beneficial enjoyment of the plaintiffs' houses, I put it across to the defendants whether they would be willing to make compensation for the infringement of the plaintiffs' right of passage over the lane in suit, the measure of the compensation being the market price of the land of the lane which the defendants had appropriated to their use to the exclusion of the plaintiffs. In spite of the fact that the suit had been dismissed by the lower appellate Court, the defendants offered to pay reasonable compensation. The learned counsel for the plaintiffs-appellants thereupon took time to obtain instructions. He stated before me on the date of the resumed hearing that the plaintiffs-appellants wanted nothing short of a decree of a mandatory injunction for the removal of the obstruction to the lane. 6. It is indisputable that S. 39, Specific Relief Act, allows a discretion to the Court in granting an injunction, or, in other words, even if the breach of obligation is established, the Court is not bound to remedy the same by grant of an injunction; and it is, therefore, open to a plaintiff under S. 40, Specific Relief Act, to claim damages either in addition to or in substitution of an injunction, and the Court may, if it thinks fit, award such damages. Sub-section (2) of S. 40, however, lays down that no relief for damages shall be granted unless the plaintiff has claimed it in the plaint, though with the proviso that where no such damages have been claimed in the plaint, "the court shall, at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including such claim." 7. The plaintiffs-appellants chose not to take advantage of the opportunity afforded by the adjournment of the hearing of the appeal after the defendants-respondents had expressed their willingness to pay compensation for remedying the breach complained of applying for an amendment of the plaint claiming compensation whether in addition to or in substitution of the relief of injunction. 8. Having heard the learned counsel for the plaintiffs-appellants, I am not satisfied that the decree of the lower appellate Court calls for any interference. It cannot be disputed that the land in suit formed part of the property allotted to Ram Nandan at the partition. The only right conceded by the compromise decree in 1938 was a right of passage. In view of the situation of the lane and the fact that it was a very narrow lane, which was of almost no use to the plaintiffs, consider it inexpedient to order removal of the obstructions raised by the defendants. It may be that the lower appellate court was not right in setting the compromise aside on the ground that the lane was not in existence at any time before the compromise, but even though the right of passage granted by the compromise through the lane in suit was wrongfully interfered with by the defendants, the proper remedy, on the facts and in the circumstances of the case was not injunction but damages. But, as observed above the plaintiffs-appellants failed to claim that in spite of grant of opportunity to them, I am faced with the same situation with which I was faced in Mohan Singh v. Danvir Singh 1980 All L J 78. have no alternative but to refuse any relief to the plaintiffs, although if they had claimed damages, something could be allowed to them by way of compensation for the breach, but probably the plaintiffs did not consider it worth the trouble, as the value of the land of the lane, put by them in the plaint, is Rs. have no alternative but to refuse any relief to the plaintiffs, although if they had claimed damages, something could be allowed to them by way of compensation for the breach, but probably the plaintiffs did not consider it worth the trouble, as the value of the land of the lane, put by them in the plaint, is Rs. 100/- only, and it is obvious that damages in excess of that figure could not have been allowed to them even if the land of the lane had belonged to them exclusively. 9. Learned counsel for the plaintiffs-appellants cited Chhedi Lal v. Chhotey Lal AIR 1951 All 199 (FB) and Smt. Brahmamoyi Chaudhrani v. Gopi Mohan Roy Chowdhuri (1911) 15 Cal W N 188. These cases have no application to the facts of the present case inasmuch as the land of the lane was not joint land but was land which formed part of the property allotted to the defendants' father at the partition of 1926 and the only right recognised by the compromise decree of 1938 was a right of passage. 10. In the result, the appeal fails and is dismissed, but, in the circumstances, I make no order as to costs in this Court.