JUDGMENT

The appellant herein are the plaintiff and the respondents herein are the defendants before the trial Court.

2. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

3. The brief facts, leading to the filing of this Second Appeal, are as follows:

According to the plaintiff, the suit property is the Well and it is appurtenant space situated in S.F.No.325/2. In which, the plaintiff has got 1/4th undivided share. According to the plaintiff, the defendants encroached into the suit property by putting up a Wall measuring 3 feet. It is the further submission that the defendants have no right what so ever in the suit property, therefore, he prayed for an injunction restraining the defendants and their men not to disturb the peaceful possession and enjoyment of the property and also for mandatory injunction, for the removal of encroachment.

4. The said suit was resisted by the defendants by contending that they are the absolute owners of the property situated in S.F.No.325/1 and that they did not make any encroachment into the suit property, and that only with the personal enmity, the plaintiff instituted the suit against the defendants, hence prayed to dismiss the suit.

5. Based up on the above pleadings, the trial Court has framed the following four issues:

1) Whether the plaintiff is having the possession and enjoying of the suit property?

2) Whether the plaintiff is entitled to get the relief of permanent injunction, as prayed for?

3) Whether the plaintiff is entitled to get the relief of mandatory injunction, as prayed for? and

4) To what other reliefs, the plaintiffs are entitled to?

6. Before the trial Court, the plaintiff examined 2 witnesses as P.W.1 and P.W.2 and marked 3 documents as Ex.A1 to Ex.A3. On behalf of the defendants, 1 witness was examined as D.W.1 and 10 documents were marked as Ex.B1 to Ex.B10.

7. After considering the pleadings, material on record and evidence, the trial Court has dismissed the suit with the finding that there is no proof as to the encroachment.

8. Aggrieved with the order of the trial Court, the plaintiff /

appellant has filed an appeal in A.S.No.35 of 2006. However, the first Appellate Court has confirmed the trial Court decree and dismissed the appeal on the finding that, since the defendant has purchased the undivided share of the suit property, during the pendency of the suit, he became the co-owner, therefore, no injunction could be sought for against the co-owner and also he rejected the relief of mandatory injunction.

9. Against the concurrent finding, the plaintiff / appellant has come up before this Court by way of this Second Appeal.

10. After hearing either side, this Court has admitted the second appeal, on 16.03.2023, on the following substantial question of law:

“(a) Whether the Courts below were right in dismissing the suit when the encroachment over the suit property by the respondents is established by the report of the Advocate Commissioner submitted in the first appeal?

(b) Whether the suit property being an impartible and a common property to be enjoyed by the plaintiff and the defendant, the question of refusing to grant injunction on the ground of co-

ownership, will it arise?

(c) Whether the Trial Court is correct in dismissing the suit on the alleged inconsistent pleadings about cause of action, without considering the substance of the pleadings and without considering that it does not in any manner affect the merits of the case?”

11.1. The learned counsel for the appellant / plaintiff would submit that the suit property is a Well and it's appurtenant space, he would also submit that the suit property is impartible one, and that even the co-owner cannot put up any construction of their own, without the consent of all the co-owners. It is the further submission of the learned counsel for the appellant / plaintiff that admittedly, when the defendant has no right over the suit property, at the time of filing the suit, his subsequent acqu