SHWETAMBAR JAIN MANDIR Vs. AJITKUMAR

JUDGEMENT

(1.) DEFENDANTS have suffered a decree from the lower appellate Court which had decreed plaintiff's suit. They are in second appeal under section 100 of CPC, against the judgment and decree of lower appellate Court passed by Second Additional District Judge, Dhar, dated 3.11.2000 passed in Civil Regular Appeal No. 112A/99 which results in reversal of the judgment and decree dated 14.8.1996 passed by Civil Judge .Class II, Dhar in C.S. No. 10A/96.

(2.) IN substance, the dispute in this case is that of encroachment. Case of plaintiff which is based on title, is that some portion of his land is in illegal possession of defendants (appellant) on which they have constructed one wall. The defendants denied this averment and set up a title in themselves.

(3.) THE only submission of L/c for the appellants (defendants) in support of this appeal was that mere suit for injunction without claiming possession was not maintainable. I do not agree. It is clear from the impugned judgment that on facts, the lower appellate Court dealt with this issue and categorically recorded this finding against the defendants. It was held that plaintiff was in actual possession of the land in suit and has thus all rights to sue defendants for injunction. When the finding of fact in relation to plaintiff being in possession is in favour of plaintiff, then such finding is binding on this Court in second appeal. Once I uphold this finding, namely that plaintiff was found to be in possession of suit land, then mere suit for injunction was rightly held to be maintainable for granting mandatory injunction.