In a suit for mandatory injunction, unauthorized construction by a third party on the plaintiff's land does not automatically constitute possession in favor of the defendant that would require a prayer for recovery of possession; if the plaintiff's possession is established, the injunction is sustainable.

J U D G M E N T

The defendants 2, 4, 5, 11, 12, 14, 15 in OS No.449/1993 on the files of the Principal Munsiff’s Court, Kozhikode-I, a suit for mandatory and perpetual injunction, have come up in the present second appeal. The plaintiff traced her title to Document No. 150/78 executed by one Vazhavalappil Muthoran assigning his jenm right over the property for a valid consideration. On 23.02.1993 the defendants had constructed a lamp and thara on the south-eastern portion of A schedule property which is described as B schedule to the plaint. There was a complaint before the police authorities and since no action was taken, the suit was instituted. The defendants 1 to 5 came up with the contention that the plaintiff does not have an exclusive right over the property. The further contention is that the plaintiff has no manner of right to direct the defendants to remove the structures and the allegation that a police complaint was filed, was also denied. The appellants who were arrayed as defendants 2, 4, 5, 11, 12, 14 and 15 filed an additional written statement denying the plaint averments on amendment. The trial court, on appreciation of the oral and documentary evidence came to the conclusion based on Exts.C1 and C2 report and plan that the plaint schedule property has a well-demarcated boundaries on all four sides and that the identity of the plaint A schedule property is not disputed and thus proved. As regards the issue whether the plaintiff has got exclusive possession of the plaint schedule property, the trial court on appreciation of evidence came to the conclusion that the plaintiff has successfully proved the possession. The commissioner also found that the construction presently made in the plaint schedule property is a new installations. Thus, the trial court concluded that the contention of the defendants is that a portion of A schedule property is being used for conducting festival in the temple. Resultantly, the trial court concluded that the constructions made by the defendants were without the consent and concurrence of the plaintiff and that the defendants did not have any manner of right to use the plaint A schedule property for the purpose of the temple as claimed by them. Accordingly, the suit was decreed. An appeal was preferred by defendants 2, 4, 5, 11, 12, 14 and 15 alone. The appellate court also concurred with the findings of the trial court and dismissed the appeal and hence the present second appeal.

2. Heard Sri.Jayesh Mohankumar, the learned counsel appearing for the appellants.

3. The learned counsel appearing for the appellants though vehemently pointed out that in a suit for mandatory injunction, when the possession is admittedly with that of the defendants, the courts below were not justified in decreeing the suit without the prayer of recovery of possession. The findings of the trial court are purely based on surmises and conjectures and largely on probabilities and not based on any material evidence.

4. This Court has bestowed its anxious consideration to the above argument and is of the view that this appeal does not involve any substantial question of law for consideration.

5. The contention of the appellants that the absence of relief for recovery of possession is fatal to the suit does not impress this Court for multiple reasons. The finding rendered by the courts below on appreciation of material evidence is that the plaintiff is in possession of the plaint A schedule property. Once the trial court has found that the plaintiff is in possession of the property, necessari