The judgment emphasizes the stringent requirements for granting mandatory injunctions under Section 39 of the Specific Relief Act, 1963, and the necessity for strong evidence and prevention of irreparable or serious injury.

JUDGMENT

1. This second appeal preferred by the appellant/plaintiff was admitted for hearing on the following substantial question of law:

''Whether both the Courts below have erred in considering demarcation report (Ex.D.4) and in not considering sale deeds (Ex.P.2, Ex.P.11, Ex.P.13 and Ex.D.5) in its proper perspective while holding, the plaintiff failed to prove existence of public road and thereby dismissing the plaintiff''s suit?''

(For the sake of convenience, parties hereinafter will be referred as per their status shown and ranking given in the suit before the trial Court.)

2. The plaintiff filed suit only for mandatory injunction under Section 39 of the Specific Relief Act, 1963 stating inter alia that she has purchased the land from one Sardar Harbhajan Singh on 172 1983 and constructed a house admeasuring 30 ft. x 44 ft. shown in the map attached with the plaint as A, B, C, D and on northern side of her house, there is 10 ft. public road shown as Ka, Kha, Ga, Da and on that side, plot of the defendant is also situated. It was further pleaded that on 153 1999, the defendant has started construction on public road and has also collected stones, muroom , etc., and as such, the defendant be restrained from making construction and the construction already made be removed by issuing mandatory injunction which was opposed by the defendant by filing written statement stating that there is no public road existing and he is making construction on his own land.

3. The trial Court after appreciating oral and documentary evidence on record has held that the plaintiff has failed to prove the existence of 10 ft. public road on the northern side of her house and the defendant has made construction on his own land which is a part of Khasra No.329/11, area 11 decimals, and dismissed the suit. On appeal being preferred, the first appellate Court concurred with the findings of the trial Court and dismissed the appeal leading to filing of second appeal under Section 100 of the CPC in which substantial question of law has been framed which has been setout in the opening paragraph of this judgment.

4. Mr. Shashi Bhushan Tiwari, learned counsel appearing for the appellant herein/plaintiff, would submit that both the Courts below are absolutely unjustified in considering the demarcation report Ex.D4 and in not considering the sale deeds (Exs.P2, Ex.P11, Ex.P13 and Ex.D 5) in its proper perspective while holding that the plaintiff has failed to prove existence of public road and thereby dismissed the plaintiff''s suit.

5. Mr. Rahul Jha, learned counsel appearing for the respondent herein/defendant, would support the impugned judgment and decree.

6. I have heard learned counsel for the parties and considered their rival submissions made herein above and also went through the records with utmost circumspection.

7. Ex.D4 is demarcation report conducted by the Revenue Inspector at the instance of the defendant. Ex.P2 is kishtbandi khatauni of the year 1983 recorded in the name of Sardar Harbhajan Singh. Likewise, Ex.P11 is sale deed executed by Chunnilal in favour of Sardar Harbhajan Singh and Ex.P13 is sale deed executed by Sardar Harbhajan Singh in favour of plaintiff Shahzadi Begum. Ex.D5 is sale deed executed by Sahnu in favour of Sheikh Abdul Rahim & Sheikh Abdul Satar.

8. The trial Court as well as the first appellate Court, both, have considered the aforesaid documents and came to the conclusion that there is no such public road existing on the northern side of the plaintiff''s house and the defendant has made construction on his own land which is Khasra No.329/11. The plaintiff has claimed the relief of mandatory injunction.

9. Section 39 of the Specific Relief Act, 1963 states as under :

''S. 39. Mandatory injunctions. - When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach c