A suit for injunction in respect of a vacant site is not maintainable without a prayer for declaration of title.

1. The plaintiffs are the appellants. The Plaintiffs filed the suit for permanent injunction.

2. The case of the plaintiffs is as follows: — The suit property belonged to the mother of the plaintiff by virtue of sale deed dated 7.12.54 wherein the defendant has signed as a witness. The mother of the plaintiffs died in the year 1972 leaving behind her the plaintiffs and their sister as legal heirs. From the date of purchase till her death, the mother of the plaintiffs was in enjoyment of the properties. The first schedule property forms part of second schedule property. After the death of the mother, a partition took place on 20.11.74 and in the said partition, the southern portion of the second schedule was allotted to the first plaintiff and the northern portion of the second plaintiff. The first schedule property is an exclusive lane of the plaintiffs meant and used as a pathway lane of the plaintiffs and the same is described in the plan as ESDF. The second schedule lies west of the first schedule, and it is described as ABCD. In between the first schedule and vacant site of the defendant on the east, there is a common wall belonging to both plaintiff and defendant and it is described as BD in the plan. The defendant has no right of title in the suit property. There is a wall of the plaintiff on the west of their exclusive lane i.e., first schedule property. The Defendant has replaced his old roof on his property that lies east of the common wall BD. In doing so, he has put up roof as to project it into the first schedule lane because of that water has fallens from the roof on the first schedule lane. On 19.11.78. the defendant has also planted pegs on the first schedule property. The plaintiffs objected to the same and sent notice on 27.1.79 asking the defendant to remove the projection. The defendant on receipt of the notice has removed both the roof and pegs. On 25.8.80, the defendant has tried to put up a new roof into the first schedule property The defendant has not respect for law. Therefore, the suit is filed for injunction.

3. The case of the defendant is as follows: —

The plaint plan is not correct. The mother of the plaintiffs was entitled to 2-3/4 cents on the west of the defendants property. There is no pathway to the east of the property purchased by the plaintiffs mother. The defendant purchased the property an extent of 75 feet north south and 30 feet on the south of east west and 20 feet on the north i.e., extent of 4-3/4 cents. After purchase, he has put up a mud wall on the north south. The defendant is entitled to 224/2 feet on the west of the said mud wall. The above vacant site was intended for draining the roof water of the defendants house. The plaintiffs attempted to put up wall on the west and thereafter, in the presence of panchayatars Pegs were intalled and it was decided that the plaintiff has to keep the wall put up by the plaintiffs on the north of that property as common wall. The plaintiff is entitled to the property only on the west of ESDF shown in the plaint plan. The common wall lies only on EF. The plaintiffs are entitled to 2-3/4 cents only on the west of the said wall. The defendant has been in enjoyment of the property EBDF and that he also perfected title by adverse possession.

4. On the above pleadings, the trial Court has framed 10 issues. On a consideration of oral and documentary evidence, the trial Court dismissed the suit. The plaintiffs preferred an appeal in EX A.S. No. 64/83. The learned Subordinate Judge. Tenkasi by judgment dated 17.7.85 dismissed the appeal. The plaintiffs who lost in both the Courts have come forward with this Second Appeal.

5. The following substantial question of law was formulated while admitting this Second Appeal.

“Whether the Courts below are right in holding that the suit for a mere injunction is not maintainable without a prayer for declaration on the facts and in the circumstances of this case”.

6. The plaintiffs have filed this suit for