A suit for mere mandatory injunction without a prayer for possession or a declaration of title is not maintainable.

T. LAKSHMINARAYANA REDDY, J.

( 1 ) THIS is an appeal against the decree and judgment passed in a. S. No. 59 of 1978 on the file of the Additional District Judge, Mahabubnagar, dated 9-12-1980. Defendants 1 to 18 are the appellants The appeal arose in the following circumstances:

( 2 ) THE present respondent filed the suit under Section 39 of the specific RELIEF ACT, 1963 for a mandatory injunction against defendants 1 to 18 to pull down and to remove the temporary huts raised by them in the land bearing S. No. 1073 situated at Wanaparthi The plaintiff s case in brief is, that the land of 1 acre 8 guntas in the above survey number originally belonged to Raja Rameswara Rao, the 19th defendant. He gave this land to the plaintiff thirty years ago for the purpose of construction of a house. The plaintiff constructed a house therein in a partion; and the rest of the land, an extent of 3507 sq. yards remained vacant. He was paying a special land assessment for the same under the Land Revenue Act. He became the owner because of his exclusive possession for over thirty years. In January 1976, defendants 1 to 18 erected scattered temporary huts in suit site, overnight. Hence the suit.

( 3 ) IT is the case of defendants 1 to 18 that the suit land does not belong to the 18th defendant. It is not true that the plaintiff is in possession of the suit land of 3507 sq. yards for the last thirty years; and that he perfected his title by prescription; that the suit land is Gowthan land, that the defendants erected their huts in it in or about the year 1900 and since then they are in continuous possession of the same. It is not true that they raised their huts in January 1976.

( 4 ) THE 19th defendant filed a written statement stating that he was the owner of the land; and he gave it to the plaintiff thirty ycars ago free of costs for the purpose of house construction.

( 5 ) DEFENDANT Nos. 20 and 21 filed and written statement that Raja rameswara Rao, the 19th defendant was the owner till 1953; that in 1954-55 i. e. , at the time of the preparation of the record of rights, the plaintiff has become the holder of the suit land by virtue of long standing possession. Suqsequently, in 1956-57, Nazim Zamabandi exempted the suit land from the payment of land revenue and converted the same into Gowthan as none paid the land revenue; and as the suit land was made uncultivable and lying fallow; and that the suit land thus continued as Gowthan area till this day.

( 6 ) THESE being the respective cases of the parties, the trial Court formulated necessary issues and ultimately found that the plaintiff is entitled for mandatory injunction and decreed the suit as prayed for.

( 7 ) AGAINST the trial Court, decree and judgment, defendants 1 to 18 took the matter in appeal to the District Court. The Additional District judge confirmed the judgment and decree of the lower Court, in its judgment, dated 9-12-1980 in A. S. No. 59 of 1978. Against the decree and judgment of the Additional District Judge, Mahabubnagar the present Second appeal is preferred by defendants 1 to 18.

( 8 ) THIS being a Second Appeal, we are only concerned with the question of law, the same being whether the suit tor mere mandatory injjunclion is maintainable ?

( 9 ) IN the trial Court, issue No 7 is whether the plaintiff is entitled to mandatory injunction as prayed for. The trial Court found that a mandatory injunction without praying for a declaration of title and for recovery of possession is maintainable. The first appellate Court also, without much of a discussion held, that the suit for ejectment is not necessary in cases of this nature; and that the learned District Munsif was right in granting a decree for mandatory injunction for pulling down the hutments which came into existence overnight.

( 10 ) LET us, therefore, now, advert ourselves to the question as to whether, a suit for mere mandatory injunction under Sec. 39 of the specific RELIEF ACT, 1963 without a prayer for possession o

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