The court held that mandatory injunction can be granted based on possession claims without requiring a prior declaration of title, provided the plaintiff substantiates ownership rights.

JUDGMENT :

H.P.SANDESH, J.

1. This matter is listed for admission. I have heard the counsel appearing for the appellants. This second appeal is also filed against the concurrent finding.

2. The factual matrix of the case of the plaintiff before the Trial Court is that, late Paddu Handthi and the defendants have been in possession and enjoyment of the land bearing Survey No.38/16. The specific case of the plaintiff before the Court is that, item Nos.1 and 2 of plaint ‘A’ schedule properties and other properties were granted on occupancy right to A. Vamana Kamath who is the father of the plaintiff. He has executed a registered settlement deed dated 02.08.2007 in favour of the plaintiff pertaining to plaint ‘A’ schedule properties and other properties. The plaintiff purchased item No.3 of plaint ‘A’ schedule property from Sanjeeva Kamat and Vrinda Kamanth through a registered sale deed dated 08.11.2003. Since the date of acquisition by the plaintiff, he has been in actual possession and enjoyment of the plaint 'A' schedule property.

3. It is contended that the portion of survey No.38/16 of Kalathur village measuring 1.75 acres and 25 cents, now bearing Survey No.38/31 (1.15 acres) and Survey No.38/32 (85 cents), situated immediately next to item No.1 of the plaint ‘A’ schedule properties belongs to the defendants who are the children of late Paddu Handa and Linga Handa.

4. It is further contended that, taking undue advantage of the non availability of a boundary wall or fence which separates the defendants properties and item No.1 of the plaint ‘A’ schedule property, the defendants started raising boundary disputes in the year 2013 and scheming to trespass into a portion of the said item No.1 of plaint ‘A’ schedule properties. Therefore, the plaintiff filed an application before the Survey department for measurement of item No.1 of plaint ‘A’ schedule properties. After knowing about the visit of Surveyor, the defendants, with the help of their henchmen, trespassed into the portion of item No.1 of the plaint ‘A’ schedule property on 01.12.2014 by using old fencing materials and forcibly started erecting a sort of fence separating the plaint ‘B’ schedule property from the remaining portion of item No.1 of plaint ‘A’ schedule properties.

5. It is also contended that on the basis of application, the Surveyor appointed by the Survey department visited the Plaint ‘A’ schedule properties on 02.12.2014, fixed the boundary marks of the plaint ‘A’ schedule property and made it clear to the defendants that they had in fact trespassed into the plaint ‘B’ scheduled properties. In spite of repeated requests, the defendants refused to stop erecting the fence. Hence, plaintiff gave a petition to the jurisdiction police. But the police declined to interfere in the matter, since it is a civil matter. Thereafter, the defendants also threatened to trespass into item Nos.2 and 3 of the plaint ‘A’ schedule property and also the remaining portion of item No.1. Since the defendants claim possession of those properties or claim any right over the same, prayed to grant the relief.

6. The defendants in the written statement contend that they have been in possession to the extent of 3.40 acres from time immemorial, continuously, peacefully without any interference by any person. In the Hadbust sketch of the Tahsildar clearly shows that the defendants have been in possession and enjoyment of 3.40 acres of land in Survey No.38/16. In the said sketch, to the south-western side of the above property, Survey No.38/25 measuring 18 cents is situated, which is also in the exclusive possession and enjoyment of the defendants from time immemorial.

7. From the sketch and topography of the land, it is clear that no person can enter Survey No