The distinction between ownership rights and easementary rights must be maintained, and mandatory injunctions can only be issued with proper evidence of rights, as established by decrees of lower courts.

JUDGMENT :

T.V. THAMILSELVI, J.

This second appeal has been filed to set aside the judgment and decree dated 06.10.2023 passed in AS No. 26 of 2023 on the file of the VI Additional Judge City Civil Court at Chennai, confirming the judgment and decree dated 27.10.2022 in O.S No. 1954 of 2016 on the file of the V Assistant Judge (FAC), City civil Court at Chennai.

2. The respondent herein filed a suit in O.S No. 1954 of 2016 on the file of the V Assistant Judge (FAC), City civil Court, Chennai, for the relief of permanent injunction and for mandatory injunction directing the defendants to remove the unauthorized shed put up by the defendants in the common running passage area of the suit property. The said suit was contested by the defendants by filing the written statement. After considering the oral and documentary evidence the Trial Court decree the suit. Challenging the said findings, the defendants preferred the appeal in AS No. 26 of 2023 before the City Civil Court, Chennai, which independently analysed oral and documentary evidence dismissed the appeal. Challenging the concurrent findings, the appellants/defendants preferred this second appeal.

3. This Court admitted the second appeal with the following substantial questions of law:

a) Whether both the Courts were right in refusing to consider the presumption under Sec.90 of the Indian Evidence Act, 1872 with respect to the proof and genuineness of Ex.B4 dated 12.11.1934 registered as Doc.No.2749/1934 in the office of Subregistrar, Mylapore, when there is no arbitrariness, capriciousness or perversity in drawing the said presumption which was refused by the Trial Court?

b) Whether the Courts can grant the relief of mandatory injunction in the absence of declaratory relief in violation of Sec. 34 of the Specific Relief Act?

c). Whether the Courts below were right in ignoring Ex.B4, which is binding on the Plaintiffs having been executed by their predecessor in interest?

d). Whether the Lower Appellate Court can ignore the recitals of Ex.B4 which is a validly registered document and pass adverse findings by just reading the nomenclature of the document?”

4. The brief facts of the plaintiff case as follows:

The subject matter of the suit property is a common passage measuring on the North by 10 feet width and running on the west side by 70 feet as described in the suit schedule. The case of the plaintiff is that, she is absolute owner of the suit property which is a building consisting of ground floor plinth area 468 square feet and 497 square feet on the first floor situated at bearing Old No.29, New No. 30-B, Musiri Subramanian Road, (Oliver Road), Mylapore, Chennai - 600 041 which is a dead end property along with a common passage of about 10 ft width by 70ft running passage on the Northern side for ingress and egress from Musiri Subramanian Road(Oliver Road). The plaintiff purchased the suit property from Premalatha, daughter of G.Narayanasamy, through sale deed dated 23.01.2013, since then, she is in possession and enjoyment of the suit property along with common passage without any hindrance, the said common passage also mentioned as one of the boundary of her sale deed and using the same for ingress and egress to reach the Oliver Road from their respective properties. While so, the defendant often causing nuisance to the plaintiff and attempted to encroach the common passage of the suit property more particularly, he obstructed to have ingress and egress and regress to the suit property by park their car in