1. The question for determination in this second appeal is whether the mandatory injunction granted by the lower Courts against the defendant was properly granted. There is really no serious dispute about the facts of the case. The dispute relates to a lane of about 5½ feet in width. It is admitted that the lane is the common property of both he parties. It is also clear that on a previous occasion defendant threatened to deal with the lane in a manner not ??? with its being the common property and thereupon an, injunction was issued against him. The injunction, however, issued in that cases does not cover the present case. The facts, so far as the present case is concerned, are, as found by the lower Courts, that 10 or 12 years ago the defendant who owned apparently both the properties on either side of this lane, put up a sort of a platform as a sort of a roof or covering for the lane and built a thatched shed thereon. About 1921 he altered the tiled shed into a terraced structure. There is also some question about a pial, that has been put up by the defendant on the common lane.

2. The pial is not of a very large dimension. So far as the pial itself is concerned, though it seems to be clear that it is not a very recent construction, still the lower Courts have issued a mandatory injunction for its removal. I do not feel persuaded that the damage to the defendant by its removal can at all be regarded as anything serious so as to justify the continuance of the infringement of the rights of the plaintiff. On a balance of convenience, which alone is the principle on which such cases can ultimately be decided, I have not the slightest hesitation in this case that, so far as the pial is concerned, nothing has been shown by the defendant why the removal of it, which has been ordered, should not be allowed to stand. There are no equitable considerations whatever with regard to it. I, therefore, refuse to interfere with that part of the judgment which relates to the pial.

3. As regards, however, the terrace that has been put up, the same also has been ordered to be demolished and removed by the mandatory injunction issued by the lower Courts. It is clear from the admitted facts and from the findings of both the Courts that the lane has been used by both the parties only as a passage. If it was used as a passage, and if, as is admitted, it is only 5½ feet in width, it can be used only as a passage for human beings for going in and coming out and possibly for cattle, and even as a passage it will not be available for other purposes. I put the question to the learned vakil for the respondent how his enjoyment of this common lane has been interfered with by the defendant putting up that shed or terrace over the lane. He has not been able to answer it. He merely, in answer, referred to his legal right. Of course the legal right is assumed, but when it is a question of the relative convenience or inconvenience and the extent of damage to the one party of the other, the Court is bound to take into consideration the extent to which, by reason of the encroachment of the common rights committed by the defendant, the plaintiff's enjoyment or accustomed user has been inconvenienced or interfered with. I have not been shown anything on which it is possible to say that the manner in which the plaintiff has been enjoying or using the property has been in the slightest degree interfered with or inconvenienced.

4. Again, there is the fact found and practically admitted that this shed was put up originally by the defendant 10 or 12 years ago. There seems to be some dispute as to whether there was or was not some objection on the part of the plaintiff when this shed was put up. But I will assume for the purpose of the decision in this case that some objection was made. Assuming, then, that in spite of the objection the defendant put up the shed 10 or 12 years ago, we have then in this case the obvious fact that the plaintiff lay quiet till 1921 when this suit was instituted. I do not propose to put it on any ground of acquiescence, nor on any ground of estoppel. I do not think there are facts in this case on which the one or the other can be found in favour of the defendant. Yet there is undoubtedly this laches on the part of the plaintiff. In all matters of equitable relief the Court is entitled to take the laches of the party seeking relief into consideration in granting or refusing it. I have not the shadow of a doubt in my mind that English Courts of equity having before them such a case as this, in which the plaintiff has been sleeping over his rights for 10 or 12 years, would undoubtedly have refused the remedy by way of mandatory injunction. If indeed in this case it had been, shown that what was done by the defendant in 1920 or 1921, namely, the putting up of the terrace, constituted in its nature any further or increased interference by the defendant with the plaintiff's rights, one may disregard the lapse of time between the original structure and the institution of the suit. But this is clearly not a case in which the new structure put up can possibly be regarded, as in any manner tending to further deprivation of the plaintiff's rights. On this ground alone, the laches, therefore, it seems to me that the plaintiff is clearly dis entitled to the relief claimed by way of mandatory injunction. Again I am not at all sure that having regard to the circumstances of this case sufficient material or any material whatever has been placed before the lower Courts on which they could have come to the conclusion that it was a proper case for mandatory injunction. Undoubtedly, the discretion to be exercised by the Courts of law in granting or refusing the mandatory injunctions is a judicial discretion and it must be exercised on principles which are capable of enunciation.

5. In this case, however, it seems to be perfectly clear that both parties having been using the lane only as a common passage for both parties, it cannot possibly be regarded that there has been any interference with such user by the putting up of the structure. Undoubtedly there is the infringement of the legal right. That is not what I am referring to. What I am referring to is the actual inconvenience and discomfort caused to the plaintiff by reason of this unlawful act on the part of the defendant. There is no evidence at all with regard to what may be regarded as any special source of inconvenience or discomfort caused either to the plaintiff or any person that may, on his behalf, be entitled lawfully to use this common lane. The utmost that one can think of is that, if this portion of the passage is covered over by terrace, the sunlight and the pouring rain may not fall on the passers by on this portion of the passage. I do not feel persuaded that this can really be regarded as an inconvenience or source of discomfort. Farther, viewing the question as one of balance of convenience or damage, what is the benefit that will accrue to the plaintiff by the mandatory injunction being confirmed? Only the sentimental satisfaction that the plaintiff has won in the case and spited the defendant, insisting upon the demolition of the structure built wrongfully by the defendant. Beyond that sentimental satisfaction I fail to see anything at all which I can possibly regard in this case as a real substantial benefit that is likely to accrue to the plaintiff by this mandatory injunction. On the other hand, so far as the defendant is concerned, the demolition of that structure would mean to him the demolition of property worth, let us say, as stated above Rs. 1,000. I am unable to regard such damage as anything other than substantial. If, on the one hand, we have substantial damage to one of the parties to the extent of Rs. 1,000 and on the other hand we have only the sentimental satisfaction to the other party of having succeeded in a cursed and unseemly dispute, I should have no difficulty in the choice. There is also the further element of inconvenience in this case so far as the defendant is concerned, namely, that this terrace has been practically used for the last so many years as a link between the two properties belonging to him. I must, therefore, take it that these two properties have been continued to be enjoyed by the defendant linked by this connecting structure that has been put up by him. What other changes in the two buildings might have to be effected if this connecting link building should be demolished it is difficult to say. I believe I have now referred to all the circumstances and features in such a case as this that should weigh in the mind of a Court in coming to a conclusion whether or not the proper thing to do is to grant a mandatory injunction. A number of cases have been cited to me in the course of the discussion of this appeal. I do not think, however, that the cases are very helpful, because after all in such matters the decision must depend to is very large extent on the facts of each particular case because the facts of no case, when they come to be examined, are at all like the facts of another case. However, I may refer to the case of Shamnugger Jute Co. Ltd. v. Ram Narain Chatterjee(1). It seems to me unnecessary to quote from the judgment of the learned Judges (Wilson and Porter, JJ.) in that case at any very great length. The learned Judges say as follows, at p. 199:

The granting of injunctions is now regulated by Sections 54 and 55 of the Specific Relief Act. But those sections have never been understood as introducing new principles of law into India, but rather as an attempt to express in general terms the rules acted upon by Courts of equity in England, and long since introduced in this country, not because they were in accordance with equity and good conscience.

6. Again at p. 200 the learned Judges refer to the principle as well settled that in granting or withholding an injunction, Courts exercise a judicial discretion and weigh the amount of substantial mischief done or threatened to the plaintiff, and compare it with that which the injunction, if granted, would inflict upon the defendant, I respectfully agree to the principle thus enunciated and in the foregoing discussion of the case I have done no more than apply that principle to the facts of the case before me. In the case of Ulagappan Ambalam v. Chidambaram Chetty(2), the learned Judges clearly lay down that it is the duty of a plaintiff seeking mandatory injunction not only to have objected to the construction of the building complained of but also to have taken legal proceedings immediately to stop the progress of the work. I do not refer to that passage in the judgment for any reason that it is applicable to the facts of the present case, but only to indicate that the question of the laches of the plaintiff has been considered in such a light that the learned Judges regarded that to escape the charge of laches, it is not sufficient for the plaintiff to show merely that he objected, but he must also further show that he resorted to legal proceedings at the earliest possible moment. The learned vakil for the respondent referred to the case of Subbayya v. Somalingam(3). I do not think that the discussion in that case has any bearing on the facts of the present case. What the defendant put up was merely a small koradu and pial, and it is difficult to see how the removal of a koradu and pial could possibly be regarded as causing so much damage to the plaintiff as to take the case out of the ordinary run of infringement of legal rights and persuade the Court to refrain from granting a mandatory injunction. As I have already observed, each case has to be determined only on its own facts, and so doing I have come to the conclusion in this case that the mandatory injunction granted by the lower Courts with respect to the terrace or shed over the passage erected by the defendant cannot be maintained. I, therefore, dissolve the injunction so far as that structure is concerned. So far as the pial is concerned, the mandatory injunction will stand.

7. The learned vakil for the respondent argued that, if the Court should come to the conclusion that this is not a proper case for an injunction, still in view of the finding that there has been an infringement of the legal right of the plaintiff, it must be regarded as a case for the grant of damages to him. No doubt damages are not asked for, but it seems to me that it is unnecessary. Having regard to the provisions of the Specific Relief Act, the Court is empowered, whenever it should come to the conclusion that it is not a proper case for injunction, to grant damages instead, and I have no means by which to assess these damages. What I have got is that the building which has been put up by the defendant over the passage is worth about Rs. 1,000. But what the value of the infringement thereby of the right of the plaintiff is there are no materials for assessing. I can only do my best, and so doing I fix the sum of Rs. 100 as the sum payable as damages by the defendant to the plaintiff in lieu of the mandatory injunction.

8. As both parties have succeeded and failed in part, I direct that each party do bear his or her own costs in the appeal.

P.R.S/R.D

9. Injunction dissolved.