Co-owners cannot obstruct each other's rights to common property; they can seek mandatory injunction against encroachments.

J U D G M E N T

This Second Appeal is filed against the judgment and decree dated 07.10.1998 in A.S.No.54 of 1996 on the file of the Principal Subordinate Court, Tirunelveli, confirming the judgment and decree dated 31.07.1995 in O.S.No.1248 of 1988 on the file of the Additional District Munsif Court, Tirunelveli.

2.The Appellants herein is the defendant in O.S.No.1248 of 1988 on the file of the Additional District Munsif Court, Tirunelveli. Originally, the suit was filed by the plaintiffs seeking declaration, mandatory injunction and other reliefs.

3.For the sake of convenience, the parties are described as per their ranking in the Trial Court.

4. The brief case of the plaintiffs in O.S.No.1248 of 1988 is as follows:

The plaint second schedule property belongs to the plaintiffs viz., Subbulakshmi Ammal and Mallika and the defendant viz., Lourdusamy jointly. Originally, item Nos.1 and 2 of the first schedule properties and the second schedule property belonged to one Subbiah Asari. Then, the said property was exchanged through various hands, later, it came to the hands of one Gandhimathi Ammal and her son Muthukumar, who in turn executed a sale deed on 22.04.1981 in favour of the first plaintiff. In the said sale deed, the second item of the first schedule property was sold. The first plaintiff in turn, sold the same to the second plaintiff on 20.02.1982. Consequently, the first plaintiff became the owner of the first item and the second plaintiff became the owner of the second item of the first schedule properties. The second schedule property, there was a path-way, which was originally owned by one Muthiah Asari and subsequently, it came to the hands of one Varaprasatha Ammal, who is the predecessor-in-interest of the defendant. The defendant developed with an intention to grab the property shown as D.1, C.1, D and C and thereby, occupied the entire area which lies on the Southern side of the second schedule property. In fact, the property shown as D.1, C.1, C and D is also the common path-way being used by the plaintiffs and the defendant. The defendant took advantage of the absence of the plaintiffs for 3 days when they were on a pilgrimage to Tiruchendur and constructed a sump and a stair-case encroaching the second schedule property. Hence, the suit is filed by the plaintiffs for declaration that they are entitled to the lane mentioned in the suit second schedule property and also for mandatory injunction for demolition of the stair-case and sump put up by the defendant in the suit second schedule property.

5. The defendant has filed written statement stating as follows:

The suit is not maintainable. The plaintiffs had to prove the averments in the plaint. The rough sketch is misleading. The common pathway shown as A, B, C and D is not correct. In fact, the common pathway belongs to the plaintiffs and the defendant is only A, B, C1 and D1. The plaintiffs have no right over the property belonging to the Municipality and the Well situated therein. The Well was used by the defendant and the people living in Devakirupai Street. The defendant has never objected the right of the common pathway exercised by the plaintiffs. The construction was put up by the defendant only with the knowledge and consent of the plaintiffs and hence, the suit may be dismissed.

6. Based on the pleadings, the trial Court framed the following issues :

'' 1. Whether, the plaintiffs are entitled to get a relief of declaration and injunction in respect of plaint second schedule property ?

2. Whether the plaintiffs are entitled to get mandatory injunction in respect of plaint second schedule property ?

3. To what other reliefs the plaintiffs are entitled to ?''

7. After framing issues, during trial,