Posted On by &filed under High Court, Kerala High Court.


Kerala High Court
C. Kunhammad vs C.H. Ahamad Haji on 31 October, 2000
Equivalent citations: AIR 2001 Ker 101
Author: D Sreedevi
Bench: D Sreedevi


JUDGMENT

D. Sreedevi, J.

1. This appeal is directed against the decree and judgment in A.S. No. 64/88 of the Sub Court, Kasaragod, which was filed against the decree and judgment in O.S. No. 208/82 of the Additional Munsiffs Court, Kasaragod. The plaintiff is the appellant.

2. The suit was filed by the plaintiff for possession of the portion of A schedule property which is alleged to have been trespassed by the first defendant for laying pipe line and for consequential mandatory injunction directing the first defendant to remove the pipe line within a time to be fixed by the Court and on failure of which to get it done through an officer of the Court at the expense of the first defendant. The plaintiff has also prayed for a decree of permanent injunction prohibiting the first defendant, his men and agents from trespassing Into or in any way interfering with the possession and enjoyment of the A schedule property by the plaintiff and defendants 2 to 9.

3. According to the plaintiff, the plaint A schedule property originally belonged to late Mammunhi Haji, the father of the plaintiff. He had executed a rent deed in the year 1968 in favour of the plaintiff and his brother one C. Ibrahim. In the said rent deed Mammunhi Haji reserved his right to take usufructs from the coconut trees and also to collect the rent from the three houses situated in the A schedule property. The plaintiff and his brother Ibrahim were in joint possession of the said property by paying rent. After the death of Ibrahim his legal representative who are defendants 2 to 9 are also enjoying the property along with the plaintiff. The plaintiffs father died on 13-10-1979. Thereafter, the plaintiff claims that he is in possession and enjoyment of the plaint schedule property. The first defendant is the owner

of the northern property. He had constructed a building in his property. But the Municipality has not granted licence to the first defendant on the ground that there is no proper drainage facility in that building. The first defendant approached the plaintiff to sell away a portion of the land for laying the pipe line. The plaintiff refused.

4. While so, when the plaintiff was away, the first defendant drew the pipe line through the plaintiffs property by digging a trench upto 65 feet. Hence the plaintiff has filed the above suit. The first defendant contended that the plaintiff has no right over the plaint schedule property. After his father’s death, it was in the possession of the plaintiffs brother Abdulla Haji who gave permission to the defendant and accordingly the defendant laid the pipe line through plaint A schedule property. It is also contended that the suit is bad for non-joinder of necessary parties as Abdulla Haji and Abdul Latiff who were in possession were not impleaded.

5. The trial Court, after taking evidence, decreed the suit directing the first defendant to surrender possession of plaint Aschedule property unlawfully trespassed by him within two months from the date of judgment. He was also directed to remove the pipe line by way of decree of mandatory injunction. Aggrieved by the said decree and judgment the first defendant filed appeal before the Additional Sub-Court, Kasaragod. Learned Sub Judge set aside the decree and judgment of the trial Court. Aggrieved by the said decree andjudgment, this appeal has been filed by the plaintiff.

6. According to the plaintiff, plaint schedule property having an extent of 30 cents comprised in R.S. No. 82/2 of Kasaragod Village originally belonged to his father Mammunhi Haji. Mammunhi Haji let out the property to the plaintiff and his brother Ibrahim as per rent deed dated 25-1-1968 after reserving his right to take the usufructs from the trees and to realise the rent in-respect of three buildings. After the death of Mammunhi Haji the plaintiff and Ibrahim were in possession and enjoyment of the property. Ibrahim is also now no more. His right devolved on defendants 2 to 9 and thus, the plaintiff claims that he and defendants 2 to 9 are in possession and enjoyment of plaint A schedule property.

7. The first defendant denies the plaintiffs possession. According to him, the prop-

erty was in the possession of Abdulla Haji, one of the sons of Mammunhi Haji. To prove that the plaintiff and Ibrahim were in possession of the property, they produced Exts. A2 to A14 rent receipts. On the basis of these rent receipts the learned Sub-Judge found that the plaintiff and Ibrahim were in possession and enjoyment of the property. The property was leased out for a period of 20 years and that expired on 25-1-1988. Therefore, it is submitted for the first defendant that the lease was determined by efflux of time and hence the plaintiff cannot claim to be in possession of the property. Even if the term of lease is over, the defendant has no case that the plaintiff was dispossessed. The plaintiff is a co-owner of the property and one co-owner can recover the property from the strangers in case there is trespass. It is submitted for the defendant that the prayer for recovery cannot be granted in this case since the property trespassed upon has not been described in the plaint. What is sought to be recovered by the plaintiff is a portion of plaint A schedule property trespassed upon by the first defendant for laying pipe line. In the plaint the plaintiff seeks to recover a strip of land used for laying the pipe for drainage. Plaintiff has no case that the defendant took forcible possession of the land. Even the first defendant has no case that he took forcible possession.

8. Learned counsel for the plaintiff submitted that eventhough the property to be recovered is not described in the plaint, it can be easily identified, as the property through which the pipe line was drawn. In order to grant an effective decree, the plaintiff has to specify the property with the necessary particulars in the plaint. Therefore, the trial Court has gone wrong in decreeing the suit for recovery without specifying the property to be recovered. Learned counsel for the plaintiff also submitted that he is entitled to get a decree of mandatory injunction under Section 39 of the Specific Relief Act. A mandatory Injunction can only be granted where the plaintiff shows very strong probability upon the facts that grave damages will accrue to him in the future and the damages will not be a sufficient or adequate remedy for the damages caused. In the decision in Redland Bricks Ltd. v. Morris (1970) AC 652 the house of Lords while dealing with mandatory injunction held as follows :

“Where the defendant has acted without

regard to his neighbour’s rights, or has tried to steal a march on him or has tried to evade the jurisdiction of the Court or, to sum it up, has acted wantonly and quite unreasonably in relation to his neighbour he may be ordered to repair his wanton and unreasonable acts by doing positive work to restore the status quo even if the expense to him is out of all proportion to the advantage there by accruing to the plaintiff.”

9. Two elements have to be taken into consideration for granting a mandatory injunction under Section 39 of the Specific Relief Act. In the first place, the Court has to determine what acts are necessary in order to prevent a breach of obligation; in the second place the requisite acts must be such as the Court is capable of enforcing. Caution is required in the grant of preventive relief. The exercise of power to grant mandatory injunction must be attended with the greatest possible caution and is strictly confined to cases where the remedy of damage is inadequate for the purposes of justice and the restoring of things to their former condition is the only remedy which will meet the requirements of the case. The court will not interfere except in cases where there are extreme serious damage caused which cannot be compensated. Eventhough the first defendant claims that he has laid the pipe with the permission of Abdulla Haji, there is absolutely no evidence on record. Hence, I have to find that the alleged permission from Abdulla Haji is false.

10. In this case, the defendants without the knowledge of the plaintiff laid the pipe line through the plaintiffs property. The compensation for the damages caused will not be an adequate remedy so far as the plaintiff is concerned. The mandatory injunction is the only remedy available to the ‘ plaintiff. Therefore, the plaintiff is entitled to get a decree of mandatory injunction directing the respondents to remove the pipeline already laid through the plaint schedule property. In the decision Maganlal v. Chhotalal (1901) ILR26 Bom 136 the plaintiff sued to restrain the defendants from erecting a certain door. The plaint contained a prayer for such other relief as the court might think fit. After filing the plaint the plaintiff applied for an interim injunction, which, however, was refused. The defendants thereupon erected the door and at the hearing contended that inasmuch as the

plaint prayed only to prevent the erection of the door and not for its removal when erected, the plaintiff could not obtain the falter relief in the suit, but must file a fresh suit. The lower Court dismissed the suit holding that on the erection of the door a new and different cause of action had arisen for which a fresh suit must be filed. The Court held that the Court could grant a mandatory injunction for the removal of the door. The Court has to take into consideration the comparative convenience and inconvenience which the granting or withholding the injunction would cause to the parties. Here, the plaintiff has sustained an injury which cannot be remedied by grant of compensation. Therefore, the decree dismissing the grant of mandatory injunction is liable to be set aside.

In the result, this second appeal is allowed and the decree and judgment in A.S. No. 64/88 are set aside and a mandatory injunction is granted directing the first defendant to remove the pipe line laid through the plaintiffs property within three months from today, failing which the plaintiff will be at liberty to get the same removed through Court and realise the expenses from the first defendant. First defendant is also restrained from trespassing into or in any way interfering with the plaintiffs; exclusive possession and enjoyment of the plaint A schedule property. In the circumstances of this case, the parties are directed to suffer their costs.


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