Relief of mandatory injunction granted by lower court was justified.

1. Defendant is O.S.No.238 of 1979, on the file of District Munsifs Court, Paramakudi, renumbered as O.S.No.107 of 1983, District Munsifs Court, Manamadurai, is the appellant.

2. Suit filed by plaintiff was to declare the title of the plaintiff over the plaint schedule property and to recover the same. He also prayed for a mandatory injunction to direct the defendants to demolish the construction put up by them in the suit property. Plaintiff also sought for consequential reliefs.

3. In the plaint, it is averred that on 10.2.1957, large-area of property was purchased by plaintiff along with 19 others and there was a partition between the purchasers, as evidenced by Ex.A-2 dated 20.1.1959. As per the said deed, the 10th schedule item was allotted to the plaintiff. Schedule 21 was retained in common by all the purchasers. Item 2 in schedule No.21 is situated on the northern side of Item 1 in 10th schedule Item allotted to the plaintiff. At the time when the partition was effected, there was a move to provide a road and that is why that Item was left in common. The original idea was to provide about 25 feet width of road to be formed by the Municipality. But later, the Municipality provided only a 15 feet width of road and the remaining area was left in Item 2 of Schedule 21. Whileso, as per Ex.B-1, the defendant purchased Item 1 of the 10th Schedule and became its owner. When there was some property left after construction of the road, it was orally agreed between the 20 purchasers that the property touching the respective schedules will be taken over by them, and, on the basis of this agreement, the plaintiff became the owner of the plaint schedule property. Admitting the title of the plaintiff over the schedule item, defendants offered to purchase the property as per Ex.A-5 dated 27.9.1969. The total consideration payable was Rs.1,250 out of which Rs.600 was paid as advance. But, due to various reasons, the sale could not take place, and finally, the agreement was also cancelled. The advance amount paid under the agreement was also returned to the defendant. Whileso, defendants, without any authority, proceeded with the construction of a building within the plaint schedule property. A notice was issued to the defendants to refrain from proceeding with the construction. In spite of it, defendants were very adamant in proceeding with the same. Suit was, therefore, filed for declaration of title and other reliefs aforementioned.

4. In the written statement filed by the defendants, they admitted that they purchased Item 1 of the 10th Schedule as belonging to the plaintiff. They also admitted that Item 2 in Schedule 21 is situated on the northern side of the property purchased by him. They also agreed to have entered into an agreement for sale and also the subsequent cancellations. According to them, they did not purchase the property, because, the other co-sharers did not permit the defendants to purchase the same, and since the property was left in common, the title of the plaintiff was not clear. They said that they believed the representation of the power of attorney of the plaintiff who was a legal practitioner. But when there were other demands by the other co-sharers, they withdrew from the agreement. They also said that waited for a long time to get finalisation of the lay-out and that also did not come into effect within the expected period. Under the above circumstances, they thought it fit to cancel the agreement. In the written statement, it was further said that the plaintiff alone cannot maintain the suit since the other purchasers are also necessary parties. They also said that they have put up a construction, and the plaintiff who is the owner of the adjoining property, remained a silent spectator when the construction was going on. They also pleaded that due to acquiescence on the part of the plaintiff, a decree for mandatory injunction cannot be granted. They further denied the absolute title of the p