Mandatory injunctions necessitate a declaration of rights when contested; failure to recognize public use of a lane/passage may invalidate injunctive relief.

ORAL JUDGMENT :

This Second Appeal is against the divergent finding in a suit for permanent injunction and mandatory injunction.

2. The plaintiff sought decree for permanent injunction in respect of the property described in the schedule as property No.35 measuring 33 feet East-West and 75 feet North-South.

3. The mandatory injunction in respect of a lane/passage/passage which is said to be measuring 12 feet. It is not mentioned as to whether the measurement is in length or width.

4. In paragraph No.7 of the plaint and in the description to the suit property, the Western boundary of the suit property for which relief of injunction is sought is described as 12 feet lane/passage/passage and thereafter, the property of Siddegowda and Gangamma.

5. Defendant contested the suit and disputed the existence of lane/passage as alleged by the plaintiff.

6. After the trial, Trial Court granted relief of injunction in respect of the property bearing Sy.No.35 measuring 33 feet East-West X 35 feet North-South, though in the description of the property, the North-South measurement is shown as 75 feet.

7. The prayer for mandatory injunction in respect of the alleged lane/passage/passage is rejected.

8. Plaintiff filed appeal before First Appellate Court challenging the decree rejecting the prayer for mandatory injunction and defendant accepted the decree granting permanent injunction in respect of property bearing Sy.No.35 measuring 33 feet East-West X 35 feet North- South.

9. First Appellate Court in terms of the impugned judgment and decree allowed the appeal in part and set- aside the judgment passed by the Trial Court rejecting the relief of mandatory injunction and granted mandatory injunction in respect of 12 feet lane/passage/passage and directed removal of the constructions made therein.

10. This Regular Second Appeal is admitted on 06.06.2007 to consider the following substantial question of law:

"Whether the Lower Appellate Court was justified in granting a decree of mandatory injunction when there was no relief of declaration prayed by the plaintiff?"

11. Learned counsel appearing for the defendant/appellants would urge that in case the plaintiff is to seek mandatory injunction, it is incumbent upon the plaintiff to seek relief of declaration and without relief of declaration, there cannot be relief of mandatory injunction.

12. Learned counsel for the appellants would also submit that existence of 12 feet lane/passage/passage is seriously disputed by the defendant and the same is not established.

13. Even assuming the plaintiff’s contention based on the sale deed is accepted, the said sale deed does not refer to the existence of 12 feet lane/passage as contended by the defendant. At the most, the lane/passage which is mentioned in the sale deed is 9 feet which is shown as 3 gajas in the sale deed.

14. Referring to the recital in the sale deed, learned counsel for the appellants would urge that the property of the plaintiff at the most would extend to the Eastern boundary of the said lane/passage and not beyond or up to the western boundary of the said lane/passage. Thus, the plaintiff cannot claim ownership over the alleged lane/passage.

15. Learned counsel appearing for the respondents would contend that the plaintiff’s grandfather had purchased the property and in the sale deed reference is made to the existence of the lane/passage. It is urged that the plaintiff contended that even villagers are making use of the said lane/passage since long time as such the defendant has no right to put any obstruction on th