JUDGMENT:- This appeal by special leave by the plaintiffs is directed against a judgment dated October 14, 1968 of the Bombay High Court by which the High Court set aside the decrees of the Courts below and dismissed the plaintiffs suit.

2. The plaintiffs had filed the present suit praying for a permanent and mandatory injunction directing the defendant to remove the encroachment in the nature of erection of fencing and thorny bushes in the land in possession of the plaintiffs and restRaming them from interfering with the possession of the plaintiffs. A prayer for recovery of Rs. 500 as damages was also made by the plaintiffs.

3. The facts and circumstances of the case have been detailed in the judgments of the Courts below and it is not necessary for us to repeat the same.

4. It appears that in the original plaint filed by the plaintiffs there was some inter se dispute between the three plaintiffs who claimed to be rival heirs of Radhabai who was in possession of the property after the death of her husband. In view of the pleadings a large number of issues were framed by the trial Court in the present suit. As the plaintiffs realised that for the purpose of getting a simple mandatory injunction it was not necessary to raise a controversy about the title inter se between the plaintiffs, they sought an amendment to the plaint which may be extracted thus :

"The plaintiffs further state that in order to restrict the controversy to the material issues between the parties in this case, plaintiffs I and 2 do not press their title to the Gadhi and further to the reliefs claimed in the suit on the foot of the respective adoptions set out above and they further agree that if the claim made in the suit is well founded, a decree be passed in favour of plaintiff No. 3 only as the next reversioner of Radhabi. This withdrawal on the part of plaintiffs Nos. I and 2 is done without prejudice to their rights and only for the purposes of this suit with a view to avoid trial of unnecessary issues."

5. In view of this amendment a very large number of issues framed by the trial Court became unnecessary and the only question to be determined was whether there was an encroachment on the land of the plaintiffs as alleged in the plaint and, if so, a permanent and mandatory injunction could be granted against the defendant.

6. The suit was contested by the defendants on various grounds in which the title and possession of the plaintiffs was also challenged. Both the trial Court and the appellate Court concurrently found that the defendants had neither title nor possession. The Courts below also found as a fact that plaintiff No. 1 was in possession of the lands in dispute and the defendant had undoubtedly encroached on the land by putting up fencing and accordingly granted decree for injunction and damages. When the matter came up to the High Court in second appeal, the only point which survived for consideration was whether on the finding of fact arrived at by the Courts below, a permanent and mandatory injunction against the defendants could be granted. The High Court did not and, in fact, could not have disturbed the findings of fact arrived at by the Courts below against the defendant but dismissed the suit mainly on the ground that as the Courts below had found plaintiff No. 1 alone in possession of the lands in dispute, no injunction could be granted in favour of plaintiff No. 1 in view of the amendment sought by the plaintiffs by which all the three plaintiffs agreed that plaintiff No. 3 may be taken to be in possession of the land in dispute.

7. In our opinion, the view taken by the High Court is extremely technical and against the very spirit of the pleadings of the plaintiffs. So far as the defendants were concerned, the question of the title of plaintiffs 1, 2 and 3 inter se was not at all relevant. In order to succeed in the suit, it was sufficient for the plaintiffs to show that the land was in possession of the plaintiffs or any of them and as t