A mandatory injunction can be issued under O. 39, R. 1, Civil P. C., but the court must exercise its discretion judiciously and consider factors such as the prima facie existence of a right and its infringement, irreparable injury, and the balance of convenience.

( 1 ) THE defendant is the appellant before me. The respondents filed the suit for a declaration that the irrigation `bode marked in the plaint plan A, B, C, D is used by the plaintiffs for irrigating their land, and for the issue of a permanent injunction restraining the defendant from interfering with the said `bode. It was alleged inter alia, that the land of the plaintiffs R. S. No. 346 marked as `p in the plaint plan and the defendants land R. S. No. 345/1, marked as `q in the plaint plan, originally belonged to one family. On partition, plot `p fell to the share of the vendors of the plaintiffs and the plot `q fell to the share of the defendants predecessors-in-title. At the time of partition, for the purpose of irrigating plot `p the bode described as A, B, C, D was an easement of necessity. The plot `p was purchased under the sale-deed Ex. A-1 dated 31-5-39 by the plaintiffs. The existence of the bode is mentioned in the said sale-deed. The vendors of the sale-deed had agreed to widen the bed of the bode. The plaintiffs and their predecessors-in-title were irrigating the land with the water that flows through the said A, B, C, D bode, for over the statutory period peacefully, uninterruptedly and as of right to the knowledge of the defendant and his predecessor-in-title. The plaintiffs land had no other source of irrigation nor there exist any vents to draw irrigation water from the neighbouring lands. Since the defendant has been interfering and is threatening to close the bode claiming of the title to the bode and right to take water through the plaintiffs land and for the issue of a permanent injunction was prayed for.

( 2 ) THE suit resisted by the defendant alleging inter alia that there was no bode in existence nor the plaintiffs land at any time used to get water through the bode on the land of the defendant. The plaintiffs with the assistance of nearly 200 people dug the bode for the first time on 26-5-66 a few days prior to the suit. The defendant immediately lodged a complaint with the police and issued necessary notices. It was therefore contended that the plaintiffs neither have any title nor have they any easementary rights either by way of necessity or by prescription, and in the circumstances, no injunction can be issued against the defendants.

( 3 ) THE plaintiffs obtained an interim injunction which existed during the pendency of the suit.

( 4 ) THE trial Court after framing appropriate issues and recording the evidence adduced by the parties, dismissed the plaintiffs suit, holding that the recitals of Ex. A-1 do not support the contention of the plaintiffs that the bode was in existence at the time when the said document was executed. On interpretation of the document it was found by the trial Court that the vendors had undertaken for the first time to dig the bode. It was further held that P. W. 2 admitted that on the date of the sale-deed, there was no bode in existence on the land of the defendant. It was also held that the plaintiffs have failed to prove that they have acquired rights in the A, B, C, D bode by grant or as an easementary right by prescription. A further finding was recorded that the suit bode was newly dug by the plaintiffs on 26-5-66 and that it was not in existence prior thereto. It is upon these findings that the trial Court dismissed the suit.

( 5 ) DISSATISFIED with that judgment, the plaintiffs carried the matter in appeal to the Subordinate Judges Court, Narsapur. Before the appeal was filed, the defendant in view of the findings given in his favour by the trial Court, closed the bode. On the date of the appeal there was no bode in existence. An application was filed before the appellate Court by the plaintiffs praying for a direction in the form of a mandatory injunction directing the defendant to dig the bode in his land which he had closed. That application was opposed by the defendant on the ground that in view of the categorical findings of the trial Cour