IMPORTANT POINT
A plaintiff can seek a mandatory injunction to remove encroachments on property even if the suit is effectively for recovery of possession, provided the plaintiff has established title and is willing to pay the appropriate court fees.

JUDGMENT :

(P.B. Balaji, J.)

The plaintiff in a suit for mandatory injunction, seeking a direction to remove the Hanuman Statue in the suit property and other superstructures in the suit property, is the appellant herein, having initially succeeded before the trial Court and having subsequently suffered a reversal finding before the first appellate Court. The parties are described as per their litigative status in the suit. The brief material facts to adjudicate the second appeal and cross objection are as follows:-

2. The plaintiff claims to be the owner of the suit property, having obtained a decree in O.S.No.68 of 1986 in a suit for specific performance. The plaintiff also claimed to have got possession of the suit property through Court on 28.04.1987. The plaintiff has dealt with portions of the suit property, having sold several house sites to various individuals. Having sold 52,100 sq.ft, the plaintiff retained 1,26,496 sq.ft. The defendants trespassed into the property, retained by the plaintiff and erected a Hanuman Statue and a shed, spread over an extent of 0.05 cents approximately.

3. The plaintiff gave a police complaint on 20.04.2010 and filed a petition before this Court in Crl.O.P.No.15052 of 2011, seeking a direction to take legal action. This Court, by order dated 23.10.2023 directed the police to register the case and accordingly, a case was registered in Cr.No.269 of 2013 against the first defendant. The defendants are using God sentiment to usurp the suit property, which belongs to the plaintiff.

4. Pending the suit, an application was filed, seeking amendment of the plaint to include various structures put up in the entire extent of 4 acres and 10 cents. The said amendment application was allowed. The plaintiff, therefore prayed for mandatory injunction to remove the Hanuman Statue and also other superstructures, illegally put up by the defendants in the entire extent of 4 acres and 10 cents, though he had come to Court initially only to remove the encroachments put up in an extent of 5 cents.

5. The suit was resisted by the first defendant, who filed a written statement, contending that the plaintiff was not having any title to the suit property. According to the first defendant, the decree in O.S.No.68 of 1986 would not bind the defendants as they were not parties to the said suit. According to the defendants, the suit property amongst other properties originally belonged to Rama Padayachi and after his death, his sons orally partitioned the properties in the year 1934. Further, in the said partition, the suit property along with the other properties were allotted for performance of charities.

6. Further, it is the specific contention of the first defendant that in order to defraud the laudable objects to perform charities, one of the heirs of Rama Padayachi viz., Krishnasamy Padyachi has concocted a sale agreement with the plaintiff. The plaintiff took only paper delivery and was not in physical possession as the entire property was only in enjoyment of the heirs of Rama Padayachi. According to the first defendant, he is carrying on grinder, sugarcane and also chips business in the suit property and before him, his ancestors were doing the said business. The second defendant claims to be doing hotel business in the suit property.

7. It is further contended by the first defendant that the plaintiff filed a suit in O.S.No.45 of 2004 for permanent injunction against the first defendant and in the said suit, an Advocate Commissioner was appointed and in and by his Report, he had stated that row of shops have been constructed in the suit property and the said suit was subsequently dismissed, after contest, holding that the plaintiff was not in possession and enjoyment of R.S.No.98/3A, measuring 4 acres and 17 cents. According to the defendants, in the said R.S.No.98/3A, Hanuman Temple exists and the defendants have got electricity service connection from Tamil Nadu Electricity Board also for the said Survey n