JUDGMENT O.P. Saxena, J. - This is a Second Appeal against the judgment and decree dated 7-8-1975 passed by the learned IV Additional Civil Judge, Varanasi in Civil Appeal No. 169 of 1975. 2. Plaintiff filed the suit for mandatory injunction calling upon the defendants to remove the unauthorised constructions from the disputed land detailed at the foot of the plaint and restore, possession over vacant land to the plaintiff. The suit was filed in respect of 2 biswa portion of plot No. 610 situated in village Aditya Nagar, Pargana Dehat Amanat, District Varanasi. It was said that on 16th June, 1955 the plaintiff obtained the disputed land from Banaras Hindu University on payment of Rs. 600/- as nazarana for the purpose of constructing a house, that the defendants have no right and interest on the land and that on 31st January, 1969 they wrongfully encroached upon a portion of the land and made some unauthorised constructions. The suit was originally filed by Dwarka and on his death his son Ram Deo was brought on record. 3. The suit was contested by the defendants Nos. 1 to 4 with the allegations that the alleged unauthorised constructions do not lie in plot No. 610, that Banaras Hindu University has nothing to do with plot No. 610, that it had no right to give the land to the plaintiff, that the land is the sahan of the houses of the contesting defendants, that they are in possession of the disputed portion since the time of their ancestors, that they became owners of the disputed land under Section 9 U.P. Act No. 1 of 1951 and that the suit is barred by time. 4. The learned Munsif Havali believed the plaintiff's version and held that the alleged unauthorised constructions lie in plot No. 610 and that the plaintiff is a licencee of the land. He repelled the pleas that the disputed land is the sahan of the contesting defendants and that the suit is barred by time. In view of these findings he decreed the suit with costs. 5. The learned first appellate court dismissed the appeal with the modification that commissioner's report paper No. 50-ga and map paper No. 51-ga were made part of the decree. The defendants were called, upon to remove the unauthorised constructions within a week failing which the plaintiff could get the same removed through court. 5. The learned first appellate court dismissed the appeal with the modification that commissioner's report paper No. 50-ga and map paper No. 51-ga were made part of the decree. The defendants were called, upon to remove the unauthorised constructions within a week failing which the plaintiff could get the same removed through court. Hence this second appeal. 6. The only point for determination in this second appeal is as to whether the learned courts below should have awarded a decree for damages instead of specific performance. 7. Ex. 1 is the letter dated 16-6-1965 sent by the Estate Department of Banaras Hindu University to Dwarka and it shows that the disputed land was given to the plaintiff on a nazarana of Rs. 600/- on payment of Rs. 1/- per biswa as parjawat. Ex. 2 and 3 are the receipts given by Banaras Hindu University. Ex. 4 is an extract from the parjawat Register of the Estate Department of Banaras Hindu University. The plaintiff's position was of a licensee. In view of the case reported in A.I.R. 1946 Allahabad 284, Panna Lal v. Anant Singh and another in which reliance was placed on a case reported in A.I.R. 1935 Allahabad 123, Kanta Tewari v. Sheo Narain Lal, it was not disputed that the plaintiff, even though a licensee, could file a suit of the present nature against the defendants. In view of the concurrent findings of both the courts it was also not disputed that the alleged unauthorised constructions lie on plot No. 610. 8. The learned counsel for the appellants submitted before me that as the constructions lie on a very small portion of plot No. 610, it would be equitable if the plaintiff is awarded damages and the defendant would suffer irreparable injury if the decree for demolition is passed. He drew my attention to the Amin's map paper No. 51-ga to show that a small portion of one marha and a very small portion of the other marha encroaches upon plot No. 610. My attention was drawn to Section 40 of the Specific Relief Act. Clauses (1) and (2) of the section are as below :- "40. Damages in lieu of, or in addition to injunction. My attention was drawn to Section 40 of the Specific Relief Act. Clauses (1) and (2) of the section are as below :- "40. Damages in lieu of, or in addition to injunction. (1) The plaintiff in a suit for perpetual injunction under Section 38, or mandatory injunction under Section 39, may claim damages either in addition to, or in substitution for, such injunction and the court may, if it thinks fit, award such damages. (2) No relief for damages shall be granted under this section unless the plaintiff has claimed such relief in his plaint ; Provided 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." Reliance was placed on cases reported in 1980 A. L. J. 78, Mohan Singh v. Dalbir Singh and 1981 A. L. J. (N.O.C.) 14, Vindyachal Devi v. Raj Kumar. 9. The learned counsel for the plaintiff-respondent submitted that this plea was not raised by the contesting defendants either before the trial court or before the appellate court or in the grounds of appeal filed before this court. Reliance was placed on a case reported in A.I.R. 1977 Allahabad 393, Mahabir and another v. Smt. Dayawati. 10. I have carefully considered the submissions made before me. In the case reported in 1980 A. L. J. 78, the plaintiff filed a suit for mandatory injunction for removal of certain projections made on the common land of the common passage. In the facts and circumstances of the case it was held that although the projections do narrow down the breadth of the passage by about 2 feet, it would not be very fair to order their demolition, inasmuch as the plaintiff did not take the necessary steps to prevent the making of the projections before they were made, and inasmuch as their existence has not been proved to cause any such irreparable injury to the plaintiff as cannot be compensated in damages. The common Rasta (passage) has not been narrowed down to any such extent as may have made it unusable for the purposes for which it was left. The common Rasta (passage) has not been narrowed down to any such extent as may have made it unusable for the purposes for which it was left. However, since the plaintiff was originality and continues to be the owner of the land of the 15'-6" wide common Rasta, the projections do amount to an encroachment on his land, and although the projections have made it permanently impossible for the plaintiff to use a 2 feet wide strip of the common Rasta (passage) along the defendant's house, the plaintiff could be compensated by being awarded the market price of the 2 feet wide strip of land. 11. In a case reported in 1981 A. L. J. (N.O.C.) 14, only the notes of the case have been reported. It was held that since Barja was substantial construction and encroachment on A's Ahata was slight injury suffered by 'A' on account of encroachment, he could adequately be compensated by award of damages. Since 'A' had not claimed damages in the plaint, he could be allowed to claim the same by amendment of plaint. 12. In a case reported in A.I.R. 1977 Allahabad 393 it was held :- "The language of Section 40 makes it clear that it is for the plaintiff to claim damages in lieu of injunction. If he does not so claim, the question of awarding damages does not normally arise. Moreover, injunction in a case of clear trespass over another's land can be refused and compensation can be awarded only when the equity is in favour of the defendant which will mean that the defendant must establish special circumstances for not issuing an injunction." 13. It would thus appear that the legal position is that if substantial damage is being caused to the defendant and insignificant damage is being caused to the plaintiff, the court may consider awarding of damages instead of granting the relief of injunction. 14. In this case the contesting defendants did not take such a plea before the trial court. No such argument was advanced before the learned first appellate court. The plea was not taken even in the grounds of second appeal filed before this court. There is no evidence to show the extent of damage which may be suffered by the defendants if the suit for demolition is decreed. No such argument was advanced before the learned first appellate court. The plea was not taken even in the grounds of second appeal filed before this court. There is no evidence to show the extent of damage which may be suffered by the defendants if the suit for demolition is decreed. The record docs not show how much portion will be effected by the decree nor can it be said that from the demolition of the said portion the remaining portion of the defendants' constructions shall be substantially damaged. The plaintiff is not the owner of the land. He is merely a licensee. The case reported in 1980 A.L.J. 78 related to removal of certain projections made on the common land of the con men passage. The plaintiff did not take necessary steps to prevent making of projections. He was co-owner of the land and not a mere licensee. In the case reported in 1981 A.L.J. (N.O.C.) 14 there was evidence to show that the Barja was substantial construction and encroachment on ahata caused only slight injury. In this case there is no evidence whatsoever to show the extent of damage which may be caused to the defendants. Damages for wrongful encroachment on a land can be awarded to the owner. Banaras Hindu University is the owner. It is not a party to the suit. Such damages cannot be awarded to a licensee. As the contesting defendants have failed to establish the special circumstances for not issuing an injunction, the lower court had no option but to pass a decree as prayed. I decide the point against the appellants. 15. The appeal is dismissed. The costs shall be, however, easy.