KAZI MAHAMAD GULAM REZA Vs. NAROTAM KUBER

JUDGEMENT

(1.) The learned District Judge has decided the second issue against the present appellants upon the ground that they have forfeited their right to have the projecting eaves removed on account of the delay in the institution of the suit. And he relies upon the judgment of this Court in Chatur Kasalchand V/s. Dhana Jetha (1891) P.J. 287 and upon Benode Coomdree Dossee V/s. Soudaminey Dossee (1889) I.L.R. 16 Cal.252 and Haji Syed Muhammad V/s. Gulab Rai (1898) I.L. R. 20 All. 345. But mere delay is no bar to a legal remedy unless it amounts to a waiver or abandonment of the right sought to be enforced or to acquiescence in the act complained of-see Peer Mahomed Dewji V/s. Mahomed Ebrahim (1904) I.L. R. 29 Bom. app. 245, where the pertinent authorities are cited; also The Advocate General V/s. Karmali (1904) I.L.R. 29 Bom. app. 133. As was said in Lindsay Petroleum Go. V/s. Hurd (1874) L.R. 5 P. C. 239 "In every case, if the argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any Statute of Limitations, the validity of that defence must be tried upon principles substantially equitable."

(2.) In the present case certain facts are admitted which in law are sufficient to negative the inference of waiver, abandonment or acquiescence by the plaintiffs as to their right which has been encroached upon by defendant's projection, When the projection was begun and completed the first three plaintiffs were minors and they are still minors. Plaintiff No. 4, their mother, is a parda lady. Assuming that their mother was their guardian at the time of the defendant's act complained of, it is not the practice of the Courts in India or of the Privy Council to press either against an infant or a Hindu or Mahomedan female a presumption by acquiescence in a rival claim from the mere non-contestation for a limited time of an adverse title: Ramamani Ammal V/s. Kulanthai Natchear (1871) 14 M.I.A. 346. And the same law ought to hold good as to waiver or abandonment. And mere laches unless it amounts to one of these throe is not sufficient to disentitle a person to equitable relief: Claek and Chapman V/s. Hart (1858) 6 H. L. 633. And further "where there is a vested right or interest in any party the principle of law as now firmly established is that he cannot waive or abandon that right except by acts which are equivalent to an agreement or license." Palmer V/s. Moore (1900) A.C. 293 of these there being no evidence in the case the plaintiff's are entitled to relief either by way of mandatory injunction or damages.

(3.) We think the case is one where a mandatory injunction ought to have been granted. As pointed out above, one of the plaintiffs having been a parda lady and the others minors when the defendant made the projection in question, the equities so far are in their favour and there is no reason why they ought to be denied relief by injunction when the result of such denial is to let a trespasser put a value or money's worth on plaintiffs property and deprive them of it against their will. That cannot be done. Jethalal Hirachand V/s. Lalbhai Dalpatbhai (1904) I.L. R. 28 Bom. 298. We modify the District Judge's decree and restore that of the Subordinate Judge with the exception that in place of the following, namely, "and that the defendant do cut off the portion of the eaves of his roof in so far as it projects over the plaintiffs land and wall " the following words should be substituted, namely, " in the event of the plaintiffs building or wishing to build upon the land which is interrupted by the projecting eaves and the column of air which is interrupted by such eaves the defendant do remove the said projecting eaves."