The plaintiff was entitled to the relief of mandatory injunction as the construction obstructed the plaintiff's way, and the plea raised by the defendants regarding granting of final relief could not be countenanced.

ORDER

1. This writ petition has been filed by the petitioners/defendants aggrieved against the orders dated 20.10.2022 (Annex.7) and 02.11.2022 (Annex.9) whereby the trial court has passed mandatory injunction directing the defendants to remove the wall in question.

2. The suit was filed by the respondent No.1/plaintiff seeking permanent and mandatory injunction in relation to construction raised by the petitioners. It was, inter-alia, prayed that the petitioners/defendants be directed to remove the wall marked as ’E’ to ’F’ and the way being used by the plaintiff, be reopened. It was, inter-alia, indicated in the suit that the defendants have raised construction over the way in question, which pertain to the plaintiff’s property.

3. The petitioners/defendants filed response, inter-alia, seeking to contend that the plaintiff has encroached the land and, therefore, he was not entitled to seek any relief.

4. The trial court by its order dated 20.10.2022 (Annex.7) with reference to the material available on record and the pictures, which were produced before it, came to the following conclusion and directed as under:

5. The appellate court also observed that in case the plea raised by the petitioners regarding the respondent making any encroachment over the land has any substance, the same be taken care of by the court while deciding the application under Order 39 Rule 1 and 2 CPC.

6. Learned counsel for the petitioners made submissions that two courts below fell in error in accepting the application and orders for mandatory injunction. Submissions have been made that grant of mandatory injunction would result in granting final relief to the plaintiff, which could not have been granted by the said court. Further submissions have been made that the respondent/plaintiff has encroached over the land in question, which it claims to be owned by the petitioners and, therefore, on that count, passing of the orders by the two courts below are not justified.

7. Counsel for the respondent No.1/plaintiff made submissions with reference to photographs that a bare look at the same would reveal that only with a view to obstruct the way of the plaintiff, the construction has been raised by the defendants; and that as the user of the plaintiff was affected, the trial court was justified in granting mandatory injunction and sufficient reasons in this regard have been recorded by the said court, which has been upheld by the first appellate court, which do not call for any interference.

8. I have considered the submissions made by the counsel for the parties and have perused the material available on record.

9. Both the courts below, being fully aware of the fact that it was seeking to pass a mandatory injunction, have thoroughly examined the aspect, as to whether in the circumstances such a mandatory injunction should be granted or not; and have as noticed hereinbeofre, categorically come to the conclusion that as the way of the plaintiff has been obstructed by the defendants by overnight raising construction, the plaintiff was entitled to the relief of mandatory injunction and consequently passed the orders impugned.

10. The plea sought to be raised by the petitioners regarding granting of final relief cannot be countenanced in the circumstances of the case, wherein two courts below have concurrently come to the conclusion that the nature of the activities undertaken by the petitioners was required to be checked and the plaintiff was entitled for the way for using his property and, therefore, the passing of the mandatory injunction by the court cannot be faulted. An attempt was made by the petitioners that the trial court may be directed to decide the proceedings within one month and till such time, the order impugned may not be implemented. The plea raised, may appear to be attractive, however, cannot be accepted looking to the conduct wherein, the two courts below have concurrently found that the way of the plaintiff from accessing the property itself ha