BAI SAMRAT Vs. SARDARSANG HAMABHAI

JUDGEMENT

(1.) The suit was brought by the appellants, as usufructuary mortgagees, claiming relief by way of a permanent injunction to restrain the defendants from obstructing them in the enjoyment of their right as such mortgagees.

(2.) The Subordinate Judge who tried the suit found upon the evidence that in the Samvat year 1962 the defendants did obstruct and adopted "a really ingenious method" of harass" ing and harming the plaintiffs. Accordingly he granted injunction only in respect of the produce, which the plaintiffs entitled to get in respect of their mortgage for the Samvat year in question. But as to the future years, the Subordinate Judge rejected the claim for injunction upon the ground that there was nothing to show that the defendants intended to invade or would invade the plaintiffs right.

(3.) There was an appeal by the defendants and cross-objections were made by the plaintiffs. So far as the injunction granted by the Subordinate Judge in respect of the produce of one year was concerned, the lower appellate Court held that the plaintiffs were not entitled to that relief, having regard to the provisions of Section 54 of the Specific Relief Act. In other words, in the opinion of the appellate Judge, remedy by way of injunction was not the proper relief, because the plaintiffs could get damages in respect of the wrong. Now, that view would be correct if we were to look to the interruption or obstruction for the single year, and if that interruption or obstruction was not evidence, either by itself or taken with other circumstances, of a threat on the part of the defendants to continue to invade the rights of the plaintiffs in future years, so as to destroy them altogether as the rights of the usufructuffry mortgagees. On this point the lower appellate Court may usefully be referred to the decision of this Court in Apaji Patil v. Apa (1902) 4 Bom. L.R. 534 : I.L.R. 26 Bom. 735 where Jenkins C. J., after quoting the provisions of Section 54 of the Specific Relief Act, says:-" It appears to us that where a legal right, violated by another under colour of title, is established, the recurrence of violation cannot in ordinary cases be adequately met by damages, nor can those damages be satisfactorily ascertained." Therefore, if such actual invasion of the right as has taken place and other circumstances of the case show that the invasion is likely to continue, then to say that the plaintiffs ought to sue for damages every time that the right is invaded is to drive them to a multiplicity of suits, whereas Section 56 says the proper remedy in such a case is by injunction. So the ground given by the lower appellate Court for reversing the decree of the Subordinate Judge fails.