JUDGMENT :

1. The plaintiff in O.S.No.447 of 2007 are the appellants. Challenge is to the judgment of the Appellate Court, reversing that of the trial Court and dismissing the suit filed by the plaintiffs, seeking mandatory injunction, requiring the defendants to close the doorways in the first item of the second schedule and to remove illegal construction shown as the second item of the second schedule properties.

2. According to the plaintiffs, the suit property was purchased by their father, in the name of their grand mother, namely, Peer Fathumal. It is also claimed that the second defendant, who is the brother of the plaintiffs father, along with other brothers filed a partition suit in O.S.No.3 of 1983, in which, the suit property was also shown as items 4 & 5 of sixth schedule. Though the suit for partition was dismissed by the trial Court, upon appeal by the second defendant and his brothers in A.S.No.237 of 1991, this Court granted a preliminary decree for partition, declaring 4/6th share of the plaintiffs in O.S.No.3 of 1983 in the sixth schedule property. A review application was filed by the present plaintiffs' father, seeking review to confine the decree in respect of Items 4 and 5 of 6th schedule property and the said review application was allowed by this Court. It is also stated that the judgment in the review application was challenged in Special Leave Petition and the Honourable Supreme Court had remanded the matter to this Court for reconsideration, since the legal representatives of one of the heirs was not brought on record. It is not in dispute that the Review application remanded by the Honourable Supreme Court is still pending. While things stood thus, according to the plaintiffs, the first defendant, who is the son of the second defendant, who had purchased the property, on the western side of the suit property, had unauthorizedly constructed over the western wall of the suit property and had also made certain openings in the suit property. Claiming that he had no right to do so, the plaintiffs has come up with the present suit.

3. The suit was resisted by the defendants contending that the plaintiffs who are not the absolute owners of the suit schedule property, are not entitled to maintain the suit. It is their further contention that the second defendant is a sharer and therefore the plaintiffs cannot complain about the construction made.

4. At trial, the 1st plaintiff was examined as PW 1 and Exs.A1 to A3 were marked. The first defendant was examined as DW 1 and Exs.B.1 to B9 were marked. A Commissioner was appointed by the trial Court. His report and plans were marked as Exs.C1 to C3.

5. The learned trial Judge, upon consideration of evidence on record, concluded that the action of the first defendant in putting up construction over the western wall of the suit schedule property amounted to infringement of the right of the plaintiffs and therefore, he is liable to be removed the said construction. On the said conclusion, the learned trial judge granted a decree for mandatory injunction as prayed for.

6. Aggrieved the defendants preferred an appeal in A.S.No. 37 of 2014. The learned Appellate Judge, upon reconsideration of the evidence of record, concluded that the plaintiffs, who are not the absolute owners of the property, cannot seek a decree for mandatory injunction. The absence of prayer for declaration of title was also made a ground to reject the claim of the plaintiffs. On the said conclusion, the learned Appellate Judge, allowed the appeal and dismissed the suit.

Hence, this Second Appeal.

7. At the time of admission, the following substantial questions of law were framed.

i. Whether under the Mohammaden Law, the son, the 1st defendant is entitled to claim any right during the life time of father, the 2nd defendant and whether the lower Appellate Court is right in not deciding the same while reversing the judgment and decree of Trial Court?

ii. Whether admittedly the 1st defendant is not the co-owne