JUDGMENT S. N. Phukan, C. J.-—By this order both the appeals registered as R. S. A. No. 310 of 1989 and Civil Revision No. 180 of 1989 are being disposed of as both these cases have been filed against the same judgment passed by the learned District Judge at Mandi on 31-3-1989 in Civil Appeal No. 3 of 1983/130 of 1987. The appeal has been filed by the defendants and the revision petition by the plaintiffs. 2. Jai Dev and Hem Raj as plaintiffs filed a suit in the court of Senior Sub-Judge, Mandi, praying for prohibitory and mandatory injunction against Thakur Dass as the main defendant and 12 others as performa defendants. According to the plaintiffs there was a three storeyed house on the suit land and the ground floor of the house was recorded in the name of the plaintiffs and others, the first floor was recorded in the possession of Thakur Dass defendant No, 1 and Roop Chand performa defendant No. 13 and the second floor was recorded in possession of Goverdhan and Bali Bahadur, predecessor in interest of the plaintiffs and performa defendant Nos. 2 to 12. According to the plaintiffs, the defendant No. 1 started constructing a pillar in the suit land which was raised above the second floor thereby encroaching 0 8 sq meter of the space of the plaintiffs and performa Defendants 2 to 12. It has also been alleged that defendant No. 1 has put a slab on this pillar and it was extended by 50 decimeter (approximately) above the second floor of the building, it has also been pleaded that defendant No, 1 has no right, title and interest on the ground floor of the house and the above act of the defendant was illegal and would cause irreparable loss to the plaintiffs and the above performa defendants as they would not be able to build on the ground floor nor they would be able to raise their second floor inasmuch as the above slab will be an obstruction to the construction by the plaintiffs and the above performa defendants According to the plaintiffs unless the pillars and the slab are removed, right of the plaintiffs and the performa defendants will be prejudiced as they will be deprived of the right of enjoyment.
The plaintiffs prayed for a mandatory injunction against defendant No. 1 directing him to remove the above pillar and the slab. 3. The suit was contested only by defendant No 1. According to the contesting defendant the building was only two storeyed one and that entries of ownership in the revenue record in favour of the plaintiffs and others were wrong, illegal and collusive and were made behind his back It has also been stated that the ground floor was in exclusive possession of defendant No. 13 as owner and prior to that alongwith the father of the plaintiff, Jai Dev It is admitted that the first floor of the building is in possession of defendant Nos. 1 and 13. Defendant No 1 has stated that he only replaced the wooden pillar which was in existence by brick pillar on the verandah of the suit land as the said wooden piller had become eaten and life lost. It was so done to provide support to the structure of this building. It has been denied that the defendants have encroached the space Other allegations of the plaintiffs have been denied and it has been pleaded that the plaintiffs have no right, title or interest in the suit land and no injury has been caused to the plaintiffs by the action of the defendants. 4. The learned trial Court framed as many as five issues and held that the building was two storeyed one and not three storeyed, as alleged and that there was only a narrow space between the ceiling of the second floor and the roof which is only called as Talah and cannot be treated as a separate floor of the building It was also held that the plaintiff was never in possession of the alleged third floor of this building either by himself or through his predecessor in interest. However, it was held that the plaintiffs are co-sharers of the building. The trial Court also accepted the statement of the defendant that he replaced the wooden pillar by a concrete pillar and as such there was no encroachment on the suit land.
However, it was held that the plaintiffs are co-sharers of the building. The trial Court also accepted the statement of the defendant that he replaced the wooden pillar by a concrete pillar and as such there was no encroachment on the suit land. Regarding the slab, it was held that there was an aerial encroachment by extending the slab towards the house in dispute On this finding the learned trial Court partially decreed the suit directing defendant No. 1 to remove the portion of the slab that extends or over-hangs the house in dispute. The learned lower appellate Court by the impugned judgment in appeal affirmed the decree of the learned trial Court passed in the suit, namely, C. S. No. 59 of 1982. 5. As stated above, being aggrieved by the decree of both the courts below, the appeal has been filed by the defendant. Civil revision has been filed by the plaintiffs being aggrieved by a part of the findings of the learned lower appellate Court that the land in question belongs jointly to the parties to the litigation. 6. Out of the pleadings of the parties, out of the issues one issue was framed as to whether the plaintiffs were the owners in possession of the land in suit. On going through the pleadings I am of the opinion that this issue was rightly framed in view of the dispute between the parties. The parties also adduced evidence on this issue. Therefore, the findings of the learned trial Court on this issue cannot be faulted. Moreover, it was necessary to determine the present dispute. Therefore, the civil revision filed by the plaintiffs has no merit and is liable to be dismissed which I hereby do. 7. Regarding the decree for demolition of the extended portion of the slab, the learned Counsel for the appellant has urged that this decree is illegal inasmuch as it could have been compensated by money In support the learned Counsel placed reliance on the decision of the Rajasthan High Court in Narain Dass v. Atma Ram, AIR 1974 Raj 144. I entirely agree with the learned Counsel for the appellant that if the injury can be compensated with money the court need not grant any mandatory injunction.
I entirely agree with the learned Counsel for the appellant that if the injury can be compensated with money the court need not grant any mandatory injunction. The most important point in this appeal is that the plaintiffs are accepting that in the event they want to raise any construction in future the slab in question will prevent them to do so. There is nothing 6n record to show that they intend to construct any building at present. Otherwise no inconvenience has been proved by extending the slab. Therefore, the demolition of the slab at this stage is not necessary. The impugned decree is modified to the extent that whenever the plaintiffs want to construct any building, defendant No. 1 shall demolish the portion of the slab as per the decree. The decree stands modified to the above extent. I may add here that in the decree also no time limit has been fixed for demolition of the slab. 8. With the above modification of the decree, the appeal is also disposed of. 9. In the result the Civil Revision is dismissed and the appeal is dismissed with the modification of the decree, as stated above. Revision dismissed.