The main legal point established in the judgment is the entitlement to a mandatory injunction under S. 39 of the Specific Relief Act to remove a trespassing pipeline from the property.

JUDGMENT :- This appeal is directed against the decree and judgment in A.S. No. 64/88 of the Sub Court, Kasaragod, which was filed against the decree and judgment in O.S. No. 208/82 of the Additional Munsiff's Court, Kasaragod. The plaintiff is the appellant.

2. The suit was filed by the plaintiff for possession of the portion of A schedule property which is alleged to have been trespassed by the first defendant for laying pipe line and for consequential mandatory injunction directing the first defendant to remove the pipe line within a time to be fixed by the Court and on failure of which to get it done through an officer of the Court at the expense of the first defendant. The plaintiff has also prayed for a decree of permanent injunction prohibiting the first defendant, his men and agents from trespassing into or in any way interfering with the possession and enjoyment of the A schedule property by the plaintiff and defendants 2 to 9.

3. According to the plaintiff, the plaint A schedule property originally belonged to late Mammunhi Haji, the father of the plaintiff. He had executed a rent deed in the year 1968 in favour of the plaintiff and his brother one C. Ibrahim. In the said rent deed Mammunhi Haji reserved his right to take usufructs from the coconut trees and also to collect the rent from the three houses situated in the A schedule property. The plaintiff and his brother Ibrahim were in joint possession of the said property by paying rent. After the death of Ibrahim his legal representative who are defendants 2 to 9 are also enjoying the property along with the plaintiff. The plaintiff's father died on 13-10-1979. Thereafter, the plaintiff claims that he is in possession and enjoyment of the plaint schedule property. The first defendant is the owner of the northern property. He had constructed a building in his property. But the Municipality has not granted licence to the first defendant on the ground that there is no proper drainage facility in that building. The first defendant approached the plaintiff to sell away a portion of the land for laying the pipe line. The plaintiff refused.

4. While so, when the plaintiff was away, the first defendant drew the pipe line through the plaintiff's property by digging a trench upto 65 feet. Hence the plaintiff has filed the above suit. The first defendant contended that the plaintiff has no right over the plaint schedule property. After his father's death, it was in the possession of the plaintiff's brother Abdulla Haji who gave permission to the defendant and accordingly the defendant laid the pipe line through plaint A schedule property. It is also contended that the suit is bad for non-joinder of necessary parties as Abdulla Haji and Abdul Latiff who were in possession were not impleaded.

5. The trial Court, after taking evidence, decreed the suit directing the first defendant to surrender possession of plaint A schedule property unlawfully trespassed by him within two months from the date of judgment. He was also directed to remove the pipe line by way of decree of mandatory injunction. Aggrieved by the said decree and judgment the first defendant filed appeal before the Additional Sub-Court, Kasaragod. Learned Sub Judge set aside the decree and judgment of the trial Court. Aggrieved by the said decree and judgment, this appeal has been filed by the plaintiff.

6. According to the plaintiff, plaint schedule property having an extent of 30 cents comprised in R.S. No. 82/2 of Kasaragod Village originally belonged to his father Mammunhi Haji. Mammunhi Haji let out the property to the plaintiff and his brother Ibrahim as per rent deed dated 25-1-1968 after reserving his right to take the usufructs from the trees and to realise the rent in- respect of three buildings. After the death of Mammunhi Haji the plaintiff and Ibrahim were in possession and enjoyment of the property. Ibrahim is also now no more. His right devolved on defendants 2 to 9 and thus, the plaintiff claims