A plaintiff must provide evidence of current possession to succeed in a suit for injunction, and failure to do so results in dismissal. Mandatory injunctions are not appropriate for cases solely seeking prohibitory relief.

JUDGMENT :

EASWARAN S., J.

1. This appeal arises out of the judgment and decree in O.S.No.402/1999 on the files of Munsiff Court, Attingal and A.S.No.129/2005 on the files of Sub Court, Attingal.

2. The brief facts necessary for the disposal of the appeal are as follows:

2.1. The plaintiff/1^st respondent is a company represented by its Director Ramaswamy Sekhar. The plaintiff/1^st respondent herein sued the defendant/appellant herein in a suit for permanent prohibitory injunction restraining the appellant from trespassing into the plaint schedule property together with his men. The case of the plaintiff is that the plaintiff is in absolute possession of Item Nos.1 and 2 of the plaint schedule property by virtue of Title Deed No.268/1993. The plaintiff is a company registered under the provisions of the Companies Act, 1956 and that they are doing export business in granite. It is contended that, since the plaintiff-company was situated in Banglore, the defendant taking advantage of the absence was trying to trespass into the property and therefore, it is necessary to restrain him from entering into the property committing heist.

2.2. The suit was resisted by the defendant denying the averments contained in the plaint, wherein the possession of the plaintiff was also denied specifically by the defendant. According to the defendant, no cause-of-action is made out for maintaining the suit against the defendant. On behalf of the plaintiff, Exts.A1 to A20 documents were marked and PW1 to PW4 were examined. On behalf of the defendant, Exts.B1 to B11 documents were marked and DW1 to DW6 were examined. Ext.X1 is the building tax assessment register and Ext.X2 is the account statement. The plaintiff did not take out any Advocate Commissioner for ascertaining the possession, but the defendant during the pendency of the suit took out an Advocate Commissioner, who then filed Ext.C1 report.

2.3. Based on the oral and documentary evidence, the Trial Court decreed the suit by granting a mandatory injunction directing the defendant to surrender the vacant possession of the suit property together with building within one month. Aggrieved by the judgment and decree, the defendant preferred A.S.No.129/2005 before the Sub Court, Attingal, which came to be dismissed by judgment dated 03.02.2012. The First Appellate Court surprisingly found that as on the date of institution of the suit, the defendant was in possession of the plaint schedule property, but declined to interfere with the decree on the ground that the defendant does not have title over the plaint schedule property. Aggrieved, the defendant has come up in the present appeal.

3. On 10.04.2012, while admitting the appeal, this Court framed the following questions of law for consideration:

“(1) Did not lower appellate court go wrong in confirming the trial court judgment and decree for mandatory injunction after finding that plaintiff is guilty of suppression of material facts which disentitle the plaintiff for a discretionary relief of injunction as per Sec.41(i) of the Specific Reflief Act?

(ii) Did not courts below act legally and with material irregularity in granting a mandatory injunction to restore status quo anterior to the date of suit?

(iii) Is not finding of the lower appellate court that appellant's status is that of a rank trespasser is unsupported by pleadings and evidence on record hereby making the same a finding based on no evidence?

(iv) Is not observations of courts below that appellant had no claim over the property is absolutely illegal as there is specific plea raised regarding right over the plaint schedule property based on