Counterclaims can be valid against non-parties in possession, and mandatory injunctions should preserve rather than change existing conditions.

These Original petitions filed by the plaintiff/petitioners by challenging the order passed by the Munsiff Court, Thiruvalla in O.S.No.299/2024 and having dismiss the I.A.No.1/ 2024, filed by the plaintiff and allowing the I.A Nos.3 and 4 filed by the defendant, which was upheld by the District judge, Pathanamthitta in C.M.A Nos.5,7 and 12/2025 dated 02.04.2025.

2. Heard the arguments of the learned Senior counsel for the petitioner and the respondents.

3. The case of the plaintiff before the Trial court is that, plaintiff said to be mother of the original owner who has a son said to be in abroad filed a suit against the defendant restraining the defendant from interfering the schedule property and trespassing to the schedule property belongs to the petitioner No. and after issuing some notice the defendant appeared and filed written statement along with counter claim under Order VIII Rule 6A of the Code of Civil Procedure (CPC) and contending that the pathway which was leading to the property of the defendant towards northern side, access to the Panchayath road and plaintiff have to obtaining the ad interim injunction obstructing the pathway who is having is per denied for almost 15 years for acceptance to his property situated on the southern side of the plaintiff property and also putting up the compound wall with a gate by dumping rubbles and excavating pathway, therefore, filed a injunction application I.A.Nos.3 and 4 of 2024 against the plaintiff for obstructing the defendant from using the pathway for ingress and egress to the defendant property and I.A 3 of 2024 granting mandatory injunction to remove the obstructions. The trial court after hearing the arguments of the learned counsel for the plaintiff as well as defendant, both the I.A.No.1/2024 filed by the plaintiff for injunction against the defendant and I.A.No.3, 4 and 5 of the defendant and pass the impugned common order but dismissing the application of the plaintiff for granting injunction and allowed the applications I.A.Nos. 3 and 4 filed by the defendant and directed the defendant to demolish the obstruction to remove the compound wall and rubble and also not to interfere with the using of the pathway by the defendant.

4. Feeling aggrieved by the same, the plaintiff approached the District Judge by filing C.M.A.Nos.5/2025,7/2025 and 12/2025 which also came to dismiss and 2/2025, accordingly the plaintiff before this court.

5. The learned Senior counsel appearing for the plaintiff seriously contended mainly on three grounds that the defendant has not filed any counter claim for a mandatory injunction but has filed only an interlocutory application for seeking a mandatory injunction, which was allowed, which is not correct. Even otherwise, the original owner was not made a party in the counterclaim, and the injunction has been granted against the original owner, who is not a party, and further contended that the defendant is having access to the property on the southern side of his property without using the same. The defendant wants to enter the property of the plaintiff and use the road, which is on the northern side of the plaintiff’s property. The trial court as well as the first appellate court did not properly appreciate the evidence on record. The commission report clearly reveals there is a panchayat road on the southern side of the property of the defendant. Such being the case, there is ingress and egress available to the defendant, and an alternative way is also available. Such being the case, granting a mandatory injunction is against the law and there is no counterclaim in the suit. Therefore, prayed for