A mandatory injunction can include a decree of possession when the plaintiff proves ownership and encroachment, regardless of specific prayers for possession.

ORDER

1. This civil second appeal is preferred against the judgement and decree dated 24.07.2019 passed by learned Additional District Judge No.5, Ajmer (for brevity, 'learned appellate Court') in Civil Appeal No.6/2017 (80/2007) CIS Registration No.372/2014 where by, while dismissing the appeal preferred by the appellants/defendants (for brevity, 'the defendants'), the judgement dated 08.03.2007 passed by learned Civil Judge (Junior Division) City-North, Ajmer (for brevity, 'the learned trial Court') decreeing the Civil Suit No.202/2003 filed by the respondent/plaintiff (for brevity, 'the plaintiff') for mandatory and permanent injunction, has been upheld.

2. The relevant facts in brief are that the plaintiff filed a suit stating therein that he was under ownership and possession of a plot admeasuring 369.38 square yards as described in Para No.1 of the plaint. It was alleged that on 10.08.2003, the defendants have gathered construction material towards eastern side of his plot and have started raising construction of a wall encroaching upon 30 feet of his plot. Therefore, the decree as aforesaid was prayed for.

3. The defendant in his written statement submitted that he has raised construction of the subject wall in the year 1981 and was repairing it and increasing its height. It was averred that the subject land was under his ownership and possession.

4. On the basis of pleadings of the parties, the learned trial Court framed three issues including relief.

5. After recording evidence of the respective parties, the learned trial Court decreed the suit vide its judgement dated 08.03.2007 which has been upheld and affirmed by the learned appellate Court vide its judgement and decree dated 24.07.2019.

6. Assailing the impugned judgement and decree dated 24.07.2019, learned counsel for the appellants would contend that the learned Courts have failed to appreciate that the suit filed by the plaintiff was barred by limitation inasmuch as they have raised construction of the subject wall in the year 1982 whereas, the suit was filed in the year 2003. He further submits that the learned Court erred in granting the decree of possession in absence of any such prayer. He, therefore, prays that the civil second appeal be allowed, the judgement and decree dated 24.07.2019 be quashed and set aside and the suit filed by the plaintiff be dismissed.

7. Heard. Considered.

8. Contention of learned counsel for the appellants as to the suit being barred by limitation does not merit acceptance. From the averments made in the written statement, which have been reiterated by the learned Courts, it does not borne out that any such objection as to the suit being barred by limitation was taken therein. Neither any issue was framed in this regard nor, from the testimony of the defendants, it is revealed that any such statement was made therein. Learned counsel for the appellants admits that no such contention was raised before the learned First Appellate Court as well. There are concurrent finding of facts that the defendants have started raising construction of the subject wall in the year 2003. Hence, contention of the learned counsel for the appellants qua the suit being barred by limitation is rejected.

9. The learned trial Court has, while deciding the issues no.1 & 2, recorded a categorical finding that the plaintiff was under ownership and possession of a piece of land admeasuring 369.38 square yards and the defendants have tried to raise construction of a wall in August 2003 encroaching upon a part of this land. It has been appreciated that vide registered sale deed dated 27.02.1981 (Ext. A-1), the defendants have purchased a plot admeasuring 474.08 square yards; but, in their testimony, they have claimed area of their plot to be 527 square meter meaning thereby, they have encroached upon a part of land of the plaintiff as they could not explain enhancement in the area of their plot otherwise. In view thereof, while issuing a direction to demolish the wa