The main legal point established in the judgment is that a suit for a mandatory injunction can be maintainable without a prayer for declaration of title if the plaintiff's title to the property is not disputed.

Challenge in this second appeal is made to the judgment and decree dated 18.04.2002, passed in A.S.No.16 of 2002, on the file of the Principal District Court, Coimbatore, confirming the judgment and decree dated 15.06.2001, passed in O.S.No. 1529 of 1995, on the file of the Second Additional District Munsif Court, Coimbatore.

2. Parties are referred to as per their rankings in the trial Court.

3. Suit for mandatory injunction.

4. The case of the plaintiff, in brief, is that the plaintiff has purchased site number 23 measuring 2400 square feet comprised in S.F. No.461 of the suit village by a registered sale deed dated 04.11.1991, from Arumuga Gounder and the same was handed over to him and the defendant has purchased site number 24 situated on the east of the site number 23 purchased by the plaintiff and the defendant while putting up construction in his property, taking advantage of the absence of the plaintiff, put up a temporary structure in the site belonging to the plaintiff with asbestos roofing and the encroachment made by the defendant in the site belonging to the plaintiff is illegal and improper and therefore, the plaintiff issued a legal notice dated 20.06.1995, calling upon the defendant to remove the unauthorised construction put up by him in the site belonging to the plaintiff and despite receiving the same, the defendant has not chosen to send any reply. However, gave assurance that he would remove the construction put up by him. However, inasmuch as the defendant has failed to carry out his assurance, the plaintiff left with no other alternative, has been constrained to lay the suit for appropriate reliefs.

5. The case of the defendant, in brief, is that the suit laid by the plaintiff is not maintainable either in law or on facts. It is true that the plaintiff has purchased site number 23 in the suit village as claimed in the plaint. The defendant had purchased the site number 24 by way of a sale deed dated 05.2.92 and the vendor of the plaintiff as well as the defendant is the same person and he owned various extent of sites in the area and accordingly, the site number 24 alienated by the vendor was purchased by the defendant and hence, the defendant has not encroached into the plaintiff's site number 23 as alleged in the plaint and on the other hand, the defendant has put up a temporary shed only in the site purchased by him as above stated and inasmuch as the notice sent by the plaintiff is based on unfounded facts, the defendant had not chosen to respond to the same and ignored it and the construction put up by the defendant in his site was done long back and the plaintiff had never objected to the same at any point of time and hence, the plaintiff is not entitled to the reliefs sought for.

6. In support of the plaintiff's claim PWs 1 and 2 were examined, Exs.A1 to A4 were marked. On the side of the defendant, DWs 1 to 3 were examined, Exs.B1 to B9 were marked. Exs.C1 to C3 were also marked.

7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the Courts below were pleased to accept the plaintiff's case and accordingly, granted the relief sought for by the plaintiff. Aggrieved over the same, the defendant has preferred this second appeal.

8. At the time of admission of the second appeal, the following substantial question of law was formulated for consideration:

“Without a prayer for declaration of title, is a suit for a mere mandatory injunction maintainable?”

9. It is not in dispute that the plaintiff has purchased the site number 23 and similarly, it is also not in dispute that the defendant has purchased the site number 24 and it is found that both the plaintiff and the defendant had purchased their respective sites from the same vendor Arumuga Gounder and it is further noted that Arumuga Gounder had owned various sites in the area and accordingly, forming the lay out plan of the area as sites, he had sold the site to various persons inc