( 1 ) SINCE the matter involved a short point I decided to hear the arguments of the parties and to appreciate the position had also sent for the trial court records.

( 2 ) BY this judgement I shall dispose of both the aforesaid appeals as common questions are involved in these appeals.

( 3 ) THESE Second Appeals arise out of the judgement of the trial Court dismissing the suit of the plaintiff for perpetual and mandatory injunctions which decision has been upheld by the Senior Sub Judge vide the impugned order. To my mind the following substantial questions of law would arise in the present case:-

1. Whether in a case wherein the defendant has set up a defence of adverse possession, the courts below were correct in deciding the preliminary issue as to for the form of suit without recording of evidence? 2. Whether the court was correct in construing the principles of granting relief of mandatory injunction only when an act is apprehended and not when an act has already been committed?

( 4 ) IN this case, the plaintiff claiming to be landlord having inherited the temple complex, wherein the property in dispute is situated, had instituted a suit against the respondent who admittedly had been paying rent to the plaintiff even after the death of the earlier Mahant in respect of one room. The defendant-respondent after commencement of the lease in respect of a room encroached upon the verandah and passage meant for common use in front of the said one room let out to the defendant by keeping his luggage for which the defendants were served with notices dated 28. 8. 85 and 3. 9. 86 and despite service of such notices the respondents failed to clear the encroachment by removing the house-hold articles lying in the verandah and the passage or reply to either of these notices. Having thus failed to get the verandah and passage cleared by the efendants/respondents, plaintiff filed a suit for perpetual and mandatory injunction. The defendant filed his written statement talcing therein a preliminary objection that the suit is not maintainable in its present form, apart from other objections relating to locus standi of the appellant to file the suit, valuation for the purposes of court fee and jurisdiction and that the defendant had become the owner of the premises in dispute by adverse possession.

( 5 ) ONE of the pleas which appears to have weighed maximum with the trial court appears to be the defendant s plea of ownership by adverse possession for a period of more than 12 years. I need not dwell upon other pleas referred to in the trial court judgement which are not necessary for the purpose of the decision of the present appeal. The trial court proceeded to frame only one issue which reads as under:-

1. Whether the suit is not maintainable in its present form?

( 6 ) ON no other preliminary objection was any issue framed. For deciding the preliminary issue as above it was the only allegation in the plaint which should have been looked into.

( 7 ) THE trial court has placed its reliance on 1979 RLR (Note 28 ). That ruling was confined only to ascertain the question of valuation for the purposes of court fee and not the maintainability of the suit wherein it was held:-

"court Fees Act, Sec. 7 (iv ). For purposes of deciding the question of court fee and the maintainability of a suit only the allegations made in the plaint have to be taken into consideration the plaint has to be read as a whole and it is its substance which is to be guiding factor mere use of expression mandatory injunction in the prayer clause could not always be conclusive against prayer contemplating a decree for possession. "

( 8 ) I find that in that case the issue that was under consideration was one of court fee. In the present case, the trial court did not frame any issue on the plea of insufficient court fee or incorrect valuation of the suit. In the absence of an issue, he could not have proceeded to decide that preliminary objection under another issue