Principles governing grant of mandatory injunction.

Appellant is the legal heir of the deceased defendant in O.S.No.476 of 1989, on the file of District Munsif’s Court, Madurai Taluk.

2. Suit filed by respondent (plaintiff) was one for declaration that the suit property is a common pathway belonging to both plaintiff and defendant, and consequently, to grant a permanent injunction restraining the defendant from interfering with the plaintiff’s possession and enjoyment of the same, and also for a mandatory injunction to remove a septic tank which was constructed within the pathway.

3. Defendant disputed all the claims of plaintiff.

4. It is better to summarise what is stated in the pleadings.

5. It is said that the suit property is a common lane and a rough plan was also produced along with the plaint, showing the location. Respondent’s house is situated on the southern side of the common lane, and defendant’s house is situated on the northern side. It is said that the plaintiff’s house is more than 100 years old, and defendant’s house is more than 125 years old. Plaintiff’s building is Madras terraced. The walls of his building are made up of brick and mud mortar. It is said that the building was allotted to plaintiff’s share in the registered partition deed dated 23. 1987. The northern boundary of the plaintiff’s house property is described as the common lane and the house of the defendant. It is alleged that on the night of 20.6.1989, defendant clandestinely arranged to construct a latrine and a septic tank in the said common lane. On 26. 1989, plaintiff found that the defendant had completed the construction of a septic tank in the suit common lane and had dug earth for the purpose of laying foundation for a latrine to be constructed in the common lane. Even though the same was protested, it was not of much use. Therefore, plaintiff sent a petition to the local Panchayat and also sent a telegram to the Town Panchayat. Even though the Panchayat directed the defendant to stop the construction of the proposed latrine and action will be taken against her, it was not heeded to. On 26. 1989, defendant has shifted the location of the proposed latrine within her own space in the north of the suit common latrine, but did not remove the septic tank clandestinely constructed on the night of 20.6.1989. It is said that the septic tank is about five feet deep, and between the septic tank and plaintiff’s northern wall, there is a gap of only one foot. Thus, according to plaintiff, defendant had encroached two feet into the suit common lane. The construction of a septic tank within the common lane is illegal and unwarranted, and it will obstruct the plaintiff’s enjoyment of the suit common lane. Further, it will cause serious damage to the plaintiff’s building. It is, therefore, prayed that the defendant should be directed to remove the septic tank. It is on these allegations, reliefs stayed above were sought for.

6. In the written statement of defendant, who died later, she contended that the septic tank was not constructed in the common lane, but the same was constructed only in her property. It is further said that the plaintiff never protested about the location of the septic tank, and he took objection only for the location of the latrine just adjoining his northern east to west wall. This defendant voluntarily agreed to shift the latrine and accordingly constructed the same within her own property. Even before the complaint was made, the construction of the septic tank was over. The septic tank will not at all affect the plaintiff’s property, and the apprehension is only imaginary. It is also said that the conduct of the plaintiff shows that he has acquiesced the construction of the septic tank within the property.

7. In the additional written statement, she has fur- ther said that there is no common lane as alleged by plaintiff, and he has no right over the space claimed as common lane. It is part of the defendant’s property and the connection of the latrine to the sep