K. SREEDHAR RAO, J.

( 1 ) THE appeal arises out of the judgment and decree of the 7th Addl. City Civil Judge, Bangalore passed in O. S. No. 6191/92. The appellant is the plaintiff- filed the suit for mandatory injunction against the defendant 1 to 3 in the suit for their eviction from the suit premises described A and B schedule of the plaint. A schedule property consists of a house property bearing No. 98 khata No. 264/129 of Kodihaili, 16th 'b' Main Road, Indiranagar, Bangalore is a vacant portion of the land adjoining the A schedule property. Defendants No. 1 and 2 are made respondents in this appeal as respondents No. 1 and 2. The 4th defendant was the father of the appellant since dead he is not made a party in this appeal, defendant No. 5 mother is made third respondent in the appeal.

( 2 ) IT was the contention of the plaintiff before the trial Court that the suit schedule property is his exclusive property and out of grace he had allowed the defendants/respondents to reside in the suit schedule house jointly with him. After some time when the plaintiff found it inconvenient to accommodate the defendants No. 1 and 2 he requested them to vacate and get out of the house. Defendants No. 1 and 2 took a obdurate posture contending that they have joint interest in the property and refused to leave the house. In the given situation the plaintiff states that the defendants started cooking separately in the house. But all of them are residing jointly in the same premises. In other words it is not the case of the plaintiff and the defendants that defendants No. 1 and 2 are in exclusive possession of any portion of the house as such. Defendants No. 1 and 2 categorically contended that the suit property is the joint family property and that they have joint right in the said property. In the context of the disputed facts the trial Court formulated the following issues :1. Does plaintiff prove his lawful possession of the suit property on the date of suit? 2. Does plaintiff prove that defendants 1 and 2 are in occupation of part of the suit property with his consent temporarily? 3. Does plaintiff prove that defendants are interfering with his possession of the suit property? 4. Is plaintiff entitled to the reliefs as prayed for? 5. What decree or order?

( 3 ) THE trial Court answered issue Nos. 1 and 2 partly in affirmative. However, dismissed the suit on the ground that the suit for mandatory injunction is not a tenable relief and the plaintiff should have asked for the relief of possession to oust the defendants. Being aggrieved, the present appeal is filed.

( 4 ) ON going through the impugned judgment and pleadings of the parties, I find that the trial Court has not clearly comprehended the disputed factual issues and legal questions that emerge out of them. The case of the plaintiff indicates that the defendants No. 1 and 2 were permitted to stay in the house gratuitously and it was in the nature of a licence. When he finds that their stay becomes inconvenient he asked them to go out, for which they refused and continued their stay. Thereby according to the plaintiff the stay of defendants No. 1 and 2 becomes one of a trespasser.

( 5 ) FROM the facts and contentions put forth by both the parties, it is clear that none of the parties is in exclusive occupation of any of the portion of the house property. It appears that defendants No. 1 and 2 although are cooking separately in different rooms each one of them has unimpeded access for enjoyment of all the portions of the house. Therefore, from the facts and material it indicates that plaintiff is not deprived of the possession of the property. In other words, the plaintiff and defendants are in joint possession and enjoyment of the property. In a given situation, it would be preposterous to make a demand on the plaintiff to seek the relief of possesion, as he is already in joint possession and not deprived of the effective possession.

( 6 ) THE case of the defendant precisely indicat

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