A suit for mandatory injunction can be maintainable without a recovery of possession claim; limitation starts when the plaintiff recognizes non-compliance.

JUDGMENT

This appeal arises out of the judgment in A.S.No.34/2010 of the Additional Sub Court-I, Ernakulam, which reversed the dismissal of O.S.No.1449/2006 of the Additional Munsiff Court-I, Ernakulam.

2. The brief facts necessary for the disposal of the appeal are as follows:

2.1. The plaintiff filed a suit for fixation of boundary, permanent prohibitory injunction and mandatory injunction. According to the plaintiff, the plaint schedule property belonged to one Karunakara Kaimal and as per the Will executed by the Karunakara Kaimal, the property devolved upon Govinda Kaimal. The defendants’ mother Madhavi was a kudikidappukari of Karunakara Kaimal and Madhavi got assigned her kudikidappu right. Govinda Kaimal gave possession of the balance item of the property to the father of the plaintiff, Parameswaran Kutty. Even though Govinda Kaimal bequeathed the right over the said properties to one Bharathi Amma, the possession over the same continued with the father of the plaintiff. Bharathi Amma accepted the possessory right over the plaint schedule property and assigned right, title and interest in favour of Parameswaran Kutty by Sale Deed No.2043/1990 of Maradu S.R.O and after the death of Parameswaran Kutty, his legal heirs relinquished the right over the plaint schedule property in favour of the plaintiff as per relinquishment Deed No.2756/1997 of Maradu S.R.O. The plaintiff thus purchased the jenm right over the plaint schedule property. On 11.06.2005, when the plaintiff planted two coconut saplings in the plaint schedule property, the same was seen plucked by the defendants the next day. Thereafter, the defendants erected a water tank in the premises, and since the request to remove the same was unheeded, the suit was instituted.

2.2. The defendants resisted the suit by contending that, the plaintiff had purchased jenm rights of the property and a separate sub division number was also assigned to the plaint schedule property by the Revenue Department due to the influence exerted by the plaintiff who was working under them. Since the defendants were neither served with notice nor given an opportunity of hearing, their rights were not affected. The re-survey records regarding the plaint schedule property is in the name of the mother of the defendants. The right of the plaintiff, if any, is lost by adverse possession. It is also contended that the suit for mandatory injunction was barred by limitation and that the plea for fixation of boundary sans a prayer for recovery of possession is not maintainable. The defendants 2 and 3 filed a separate written statement contending that the plaintiff is not in possession of the property and for more than 20 years, the plaint schedule property was openly enjoyed by them. It was further contended that there was no request by the plaintiff to remove the water tank existing in the plaint schedule property till the filing of the suit and therefore, the claim is unsustainable.

2.3. On behalf of the plaintiff, Exts.A1 to A11 documents were produced and PW1 to PW3 were examined. Exts.C1 and C2 are the reports of the Advocate Commissioner and Ext.C2(a) is the plan. The surveyor was examined as CW1. The 1^st defendant was examined as DW1. On appreciation of the oral and documentary evidence, the Trial Court came to the conclusion that the plaintiff has not made out a case and therefore, dismissed the suit. Aggrieved, the plaintiff preferred A.S.No.34/2010 before the Additional Sub Court-I, Ernakulam, which was allowed by reversing the findings of the Trial Court and decreeing the suit, and the defendants were issued with a permanent prohib