A suit for injunction and mandatory injunction is maintainable without a prayer for declaration of title or recovery of possession when the plaintiff admits encroachment in the plaint, provided that the plaintiff has rushed to court as soon as the defendant started construction and that there is no necessity for the plaintiff to seek a declaration of title or recovery of possession.

Srinivasan, J.

1. The main question of law that is argued by learned Counsel for the appellant is that the plaintiffs have to fail as they have not prayed, for declaration of title or recovery of possession as, according to learned Counsel for the appellant, it is admitted in the plaint that the defendant had already encroached on the suit property.

2. The prayer in the plaint was for grant of an injunction restraining the defendant from interfering with plaintiffs' possession and fore mandatory injunction for removal of the construction already made by the defendant and marked as A.B. in the plan attached id the plaint. It is contended by learned Counsel for the appellant that in paragraph 6 of the plaint, it is admitted that the defendant had already trespassed on the suit property. The following sentence is relied upon by the learned Counsel:

6. The space claimed by the defendant is marked as A.C. on the south and CD. on the west. In spite of all the above fact the defendant has started construction on 25.5.1977 and in fact has already encroached on the portion marked A.B. in the plan by putting up a construction and is continuing in her nefarious act in spite of plaintiffs protest.

Learned Counsel submits that the aforesaid averment would constitute an admission on the part of the plaintiffs that the defendant has trespassed upon the suit properly and without a prayer for declaration of title and recovery of possession, the suit for bare injunction and mandatory injunction is not maintainable.

3. I do not agree with this contention. The sentence referred to above should not be torn away from the context and read independently of the rest of the plaint. The entire plaint must be read for understanding the aforesaid sentence. It is slated in the plaint clearly that the plaintiffs were in uninterrupted possession and enjoyment of the suit property from 1946, the date of the purchase by Marudayiammal, the mother of the plaintiffs. These is, reference thereafter to the defendant giving trouble to the plaintiffs since 1974 when she purchased her property. Then, it is mentioned in the plaint that the plaintiffs preferred a police complaint against the defendant and after enquiry, the defendant was warned not to put up any construction in the plaintiffs property, and an undertaking was also taken from the defendant to that effect At that stage, the plaint refers to the putting up of construction by the defendant on 25.5.1977. It is stated that the defendant started the construction on that day and in spite of protest by the plaintiffs, the defendant went on constructing. The suit was filed on 13.6.1977 and an order of interim injunction was obtained by the plaintiffs immediately. The order was served on the defendant on 15.6.1977. In spite of the order, the defendant proceeded with the construction and completed the same. In the cause of action paragraph it is stated by the plaintiffs that the cause of action arose on 25.5.1977 when the defendant began construction, and on 14.6.1977 when the defendant violated the order of interim injunction made by the court and encroached upon the plaintiffs' properly. Thus the prayer in the plaint for injunction and mandatory injunction should be read along with the other averments made in the plaint. If the entire plaint is read, it is clear that the plaintiffs have rushed to the court as soon as the defendant started construction. It is not as if the defendant encroached upon the property and squatted on the same for some time, and thereafter began to construct thereon. The encroachment it self was by commencement of the construction on the disputed property. Hence, there is no necessity for the plaintiffs to seek a declaration of their title or recovery of possession. If the impugned construction is removed, the plaintiffs will be certainly in possession as the property is adjacent to their admitted property and it is really part of the same. The courts below have taken the correct view o