MANDAVI DEVI CHANDRAKAR Vs. TARENDRA KUMAR

JUDGEMENT

(1.) This second appeal preferred by the defendants was admitted for hearing on the following substantial questions of law:

(2.) Plaintiff No. 1 is the nephew of defendant No. 1. The two plaintiffs filed a civil suit for mandatory injunction and for defendants to hand over the possession of the suit property to them after removal of the superstructure stating inter alia that they are the title-holders of the suit property bearing khasra No. 464/2 and 459/2 and are in possession of the said suit property in which defendants have illegally encroached upon by constructing a house and also by affixing stone cutting machinery on some part of the land for which they have also obtained an electricity connection illegally without taking permission from the Municipal Corporation, Mahasamund and if the defendants are not stopped from raising the said construction, plaintiffs' entry into their own house would become difficult, as such, the defendants be restrained from constructing the house and mandatory injunction be granted in their favour for removing the superstructure and then delivering the possession of the suit property to them.

(3.) Defendants set up a plea that the suit property fell in their share during the family partition held in the year 1965-66 vide Ex. D/1 dated 30/05/1983, as such, plaintiffs' bare suit for mandatory injunction without seeking the relief of declaration of title is not maintainable and is liable to be dismissed.