Illegal Construction Cannot Be Protected by Replacing Removal Decree With Compensation Never Claimed by Plaintiff: Supreme Court
High Court Cannot Create a New Relief in Second Appeal or Direct Execution Court to Assess Compensation After Setting Aside the Executable Decree
The Supreme Court has held that a High Court cannot replace a decree directing removal of an illegal encroachment with an order requiring the successful plaintiff to accept monetary compensation, particularly when no such relief was sought and the plaintiff did not consent to it.
A Bench comprising Justice S.V.N. Bhatti and Justice Atul S. Chandurkar set aside the Punjab and Haryana High Court’s judgment in two second appeals concerning walls and a lintel allegedly constructed illegally on property adjoining the plaintiff’s house.
The Supreme Court found that the High Court had reversed concurrent decrees on irrelevant considerations, created an entirely new relief and directed the Executing Court to perform an exercise unsupported by any subsisting decree.
The matters were remanded to the High Court for fresh consideration in accordance with Section 100 of the Code of Civil Procedure.
Dispute Over Wall and Lintel Construction
The original plaintiff, Om Parkash, instituted the first civil suit in 1996 seeking a mandatory injunction directing the defendants to remove walls allegedly constructed by encroaching upon common open space beyond his house.
He claimed that the construction obstructed the passage of water and interfered with air and light available through the ventilators of his house.
The Trial Court decreed the suit in February 2006 and directed the defendants to remove the encroaching walls. It also restrained them from carrying out further construction over them.
The first Appellate Court upheld the decree.
In a separate suit filed in 2000, the plaintiff alleged that the defendants had placed the lintel of a school building upon the wall of his house. The Trial Court directed removal of the lintel and restrained the defendants from placing any lintel on the plaintiff’s walls in future.
This decree was also affirmed in appeal.
High Court Converts Injunction Into Monetary Compensation
The defendants filed two regular second appeals before the Punjab and Haryana High Court.
In its first decision, the High Court directed the defendants to pay ₹10,000 in one case and ₹7,000 in the other, along with interest, representing half of the alleged construction cost. Upon payment, the disputed wall was to be treated as common between the parties.
The Supreme Court set aside that decision in 2013 because the High Court had modified the decrees without examining the merits and without framing substantial questions of law.
The matters were remanded for fresh adjudication.
However, after remand, the High Court again set aside the decrees for removal of the constructions. This time, it directed the Executing Court to appoint or rely upon a valuer, assess the value of the offending construction and require the defendants to deposit that amount for payment to the plaintiff’s legal heirs.
The plaintiff’s legal heirs challenged this decision before the Supreme Court.
Compensation Was Never Claimed
The Supreme Court noted that the plaintiff had specifically sought mandatory injunctions for removal of the allegedly illegal wall and lintel.
He had not claimed damages or compensation as an alternative relief.
The High Court could not compel the plaintiff’s legal heirs to accept money in place of the decrees obtained by them, particularly when they had never consented to such a settlement.
The Court held that judicial relief must remain connected to the pleadings, prayers and issues raised by the parties. A court cannot create a new case or substitute the relief granted after trial with a remedy that was never requested.
The direction to compensate the plaintiff at the cost of preserving the allegedly illegal construction therefore amounted to an impermissible rewriting of the dispute.
Executing Court Cannot Act Without an Executable Decree
The Supreme Court also found a fundamental defect in the High Court’s direction to the Executing Court.
Once the decrees passed by the Trial Court and affirmed by the first Appellate Court were set aside, no executable decree remained in force.
In the absence of a decree directing payment of compensation or valuation of the construction, the Executing Court could not be asked to independently assess the value of the wall and order payment.
An executing court is required to enforce the decree as passed. It cannot create a new substantive liability or undertake a valuation exercise unsupported by the decree.
The course adopted by the High Court therefore had no basis under Order XXI CPC.
High Court Repeated an Error Already Corrected by Supreme Court
The Supreme Court observed that the High Court had earlier attempted to substitute the removal decrees with monetary compensation.
That approach had already been set aside by the Supreme Court in 2013.
Despite the earlier remand, the High Court again adopted substantially the same course by directing valuation and compensation instead of deciding the second appeals on their legal merits.
The Supreme Court held that the High Court could not indirectly repeat what had already been found impermissible.
Decision Based on Incorrect Factual Premise
The High Court had proceeded on the assumption that the Trial Court had found the disputed wall to be common between the parties.
The Supreme Court found this assumption factually incorrect.
The Trial Court had not declared the wall common. On the contrary, it had found that the defendants failed to establish any right, title or interest in the land on which the wall had been constructed and had consequently ordered its removal.
The High Court’s decision was therefore based, in part, upon a finding that did not exist in the Trial Court’s judgment.
No Proper Substantial Question of Law
The Supreme Court further noted that although the High Court referred to three questions proposed by the defendants, its judgment did not clearly indicate that those questions had been formally framed and treated as substantial questions of law.
Nevertheless, the High Court concluded by stating that the substantial questions had been answered in favour of the defendants.
The Supreme Court held that a regular second appeal must be decided strictly within the framework of Section 100 CPC.
The High Court cannot interfere with concurrent factual findings unless a substantial question of law arises, is properly formulated and is thereafter adjudicated.
In the present case, the decrees were reversed without following this mandatory statutory framework.
Supreme Court Remands Second Appeals
The Supreme Court set aside the High Court’s common judgment dated 2 May 2016.
However, since the High Court had not adjudicated the second appeals properly on their merits, the Supreme Court did not finally decide the underlying property dispute.
Both second appeals were remanded to the Punjab and Haryana High Court for reconsideration in accordance with Section 100 CPC.
Considering that the appeals had been pending since 2008, the Supreme Court requested the High Court to decide them expeditiously.
Key Legal Principle
A court cannot substitute a decree for mandatory injunction with monetary compensation when:
- compensation was never claimed;
- the successful party did not consent to accept money;
- the substituted relief is inconsistent with the pleadings and decree; and
- no legal basis exists for directing the Executing Court to assess compensation.
A High Court deciding a second appeal must also frame and decide a substantial question of law before interfering with concurrent decrees.
Why the Judgment Matters
The ruling reinforces the principle that courts must decide the dispute actually brought before them.
Judicial discretion cannot be used to impose a compromise, create an alternative remedy or protect an allegedly illegal construction merely because it has existed for a long time.
The judgment also clarifies the limited jurisdiction of an Executing Court. Execution proceedings cannot be used to create rights or liabilities that do not form part of the decree.
Most importantly, the decision reiterates that the High Court’s jurisdiction under Section 100 CPC is confined to substantial questions of law and cannot be exercised as a general power to reassess facts or redesign the relief granted by the lower courts.
Case: Rajat Kumar and Others v. S.D. Adarsh Jain Kanya Maha Vidyalaya Sadhaura and Others
Citation: 2026 INSC 648
Court: Supreme Court of India
Case Numbers: Civil Appeal Nos. 19552–19553 of 2017
Bench: Justice S.V.N. Bhatti and Justice Atul S. Chandurkar
Date: 19 June 2026
Result: Appeals allowed; High Court judgment set aside and second appeals remanded for fresh consideration
