A mandatory injunction requires specific issues to be framed regarding disputed existence before being granted.

JUDGMENT :

ANANT RAMANATH HEGDE, J.

1. This appeal is against the concurrent finding in a suit for declaration of title and mandatory injunction. Initially, the suit was filed against two defendants, later defendant No.3 is impleaded as party on the premise that defendant No.3 has purchased the property adjacent to the suit property during the pendency of the suit. Thereafter, the plaint is amended by incorporating prayer No.3(a) and 5(a).

2. Initially, when the suit was filed, the plaintiff sought declaration that the wall on the Northern side to the plaintiffs' property separating the property of the plaintiffs and defendants No.1 and 2 is the common wall and sought injunction against defendants No.1 and 2 from damaging the said common wall and in addition also sought mandatory injunction to restore the common wall to the original state.

3. After impleading defendant No.3, plaintiff contended that defendant No.3 has blocked the passage shown as Schedule-2 in the plaint and alleged that the passage measuring about 3 feet in width and 13 feet in length is encroached by defendant No.3.

4. Defendant No.3 contested the suit and disputed the existence of passage. The Trial Court came to the conclusion that the passage is blocked and decreed the suit in part and declared that the Northern wall between the property of the plaintiffs and defendants is a common wall of plaintiffs and defendants and directed defendant No.3 to demolish the wall constructed by defendants No.2 and 3 and to restore the common wall. In addition to that, Trial Court also directed defendant No.3 to remove the passage shown in Schedule-2 property.

5. Defendants No.2 and 3 filed two separate appeals namely R.A. No.66/2006 and R.A.No.114/2008 respectively. The appeals are disposed of by a common judgment and consequently both appeals are dismissed.

6. Aggrieved by the aforementioned judgments and decrees, defendant No.3 is before this Court in the present Second appeal. The appeal filed by defendant No.2 before this Court in RSA No.1005/2013 is dismissed on 20.01.2017 for non-prosecution.

7. This appeal was admitted on 13.02.2020 to consider the following substantial questions of law:

(a) Whether the Courts below committed an error in directing the defendants to evacuate the construction put-up in the passage as alleged by the plaintiff?

(b) Whether the Courts below failed to consider that upon the plaintiff purchasing suit item No.1, the efficacy of continuing schedule item No.2 and 3 as passage would not arise?

8. The Trial Court framed following issues on 16.08.2000 based on the pleadings:

(1) Whether the plaintiffs prove that they are the owners in possession of the suit schedule property as on the date of the suit?

(2) Whether the plaintiffs prove that the plaintiffs property and the defendants property are separated by common wall on the northern side of suit schedule property?

(3) Whether the plaintiffs proves that the defendants have attempted to meddle with the common wall and damaged the same as alleged?

(4) Whether the plaintiffs are entitled for the relief of declaration as prayed?

(5) Whether the plaintiffs are entitled for the relief of permanent injunction restraining the defendants from damaging or destroying the common wall situated on the northern side of the suit schedule property?

(6) Whether the plaintiffs are entitled for mandatory injunction directing the defendants to restore the common wall to its status - quo - ante?

(7) Whether the plaintiffs are entitled for damages as prayed?

(8) What order or decree?

9. It is noticed that de