IMPORTANT POINTS
When opposite party admits existence of a Will proving thereof or its probate becomes immaterial.
Any co-owner can maintain a suit for injunction and protecting the property.
When directions are issued to do substantial justice which does not adversely affect the opposite party, non consideration of substantial questions of law formulated dos not vitiate a decision u/s 100, CPC.

JUDGMENT

A.M.KHANWILKAR, J.

1. This is third round of proceedings between the parties in relation to property bearing Survey No.2063 at Anchamada Village, Thiruvananthapuram, admeasuring around 79 cents. The father of Respondent No.1 was the owner, who, during his life-time sold 20 cents of the said land to a third party. The remaining 59 cents were purportedly given by the father of Respondent No.1 to him and his brother Achuthan Nair by a registered Will. The present proceedings pertain to the said 59 cents of land bearing Survey No.2063 (for short “suit property”). The Appellants are in occupation of the neighbouring property bearing Survey No.2061 and have constructed a building thereon.

2. Respondent No.1 had filed a suit before the Munsiff Court in the year 1975 being O.S. No.1004 of 1975 against the predecessor of the Appellants in respect of the suit property. That suit, however, was dismissed on 11.11.1977 against which Respondent No.1 preferred an appeal before the District Court but was unsuccessful due to dismissal of the appeal on 29.02.1980. In the intervening period, the predecessor of the Appellants filed a suit for injunction against Respondent No.1 in respect of the suit property, being O.S. No.1069 of 1976. This suit, however, was dismissed on 25.03.1978 by the Munsiff Court at Trivandrum. The predecessor of the Appellants filed an appeal against the said decision before the District Court which, however, was dismissed on 20.03.1981. Thus, both sides were unsuccessful in getting relief of injunction against the other party in their respective suits.

3. Respondent No.1 however, filed a fresh suit (from which the present appeal arises) being O.S. No.547 of 1981 before the Munsiff Court at Trivandrum for relief of mandatory injunction and prohibition against the Appellants. In this suit, it has been asserted by the Respondent No.1 that his father bequeathed 59 cents of the property described in Schedule B to the plaint to him and his brother by way of a registered Will. Thus, asserting title over the 59 cents in Survey No.2063, Respondent No.1 sought a mandatory injunction against the Appellants and also a direction that the Appellants shall remove the portion of the building on the western side of the suit property, being an encroachment made by the Appellants. Respondent No.1 further prayed for reliefs of injunction and declaration that he was entitled to put up a boundary wall to separate the two Survey Nos. namely 2061 and 2063, owned and occupied by the respective parties. Respondent No.1 also sought a prohibitory injunction against the Appellants from entering upon the suit property which was in possession of the Respondent No.1.

4. The Appellants resisted the said suit by filing their written statement. According to the Appellants, Respondent No.1 was not representing his brother Achuthan Nair and the suit for mandatory injunction on the basis of title was bad for non joinder of necessary parties. The Appellants asserted that they were in occupation/possession of Survey No.2061 which had a clear boundary separating the property allegedly owned and occupied by Respondent No.1. Further, the matter in issue in the present suit was already considered in the previous suits filed by the parties and could not be re-agitated once again between the parties. The parties produced evidence in support of their respective claims. After considering the rival contentions and the evidence on record, the Trial Court, by the judgment and decree dated 09.02.1990, was pleased to decree the suit in the following words:

“In the result a mandatory injunction is issued directing the defendants to demolish the portion of their building that abuts on the plaint B Schedule property as seen in Exhibit C1 (a) plan. The defendants are also directed to remove the newly erected bathroom and latrine to fill up the pit as shown in Exhibit C1 (a) plan. In case the defendants will not abbey the injunction within a period of three months fro