CHANDAN Vs. RISALA AND OTHERS

JUDGEMENT

(1.) This is plaintiff's second appeal whose suit for the grant of the permanent and mandatory injunction was decreed by the trial Court, but in appeal, the relief of mandatory injunction was disallowed.

(2.) The dispute between the parties relates to the site shown as A, E, F, G, H and C in the site plan, Exhibit P.1. According to the plaintiff, it is a common compound meant for both the parties. As the defendants were bent upon encroaching upon a portion of this property for their exclusive use; hence the present suit. The suit was resisted inter alia on the ground that the compound in front of the defendant's house was meant for them alone and that they were justified in raising the chabutra on the same. The trial Court found that the said site was a part of the common compound meant for the common use of the parties and that no party had a right to raise construction thereon. Consequently, the plaintiff's suit was decreed. In appeal, the learned Additional District Judge affirmed the said finding of the trial Court, but declined to grant the relief of mandatory injunction, mainly on the ground that no case for special damage was made out by the plaintiff and, therefore, he was not entitled to the discretionary relief of mandatory injunction. Dissatisfied with the same, the plaintiff filed the second appeal in this Court.

(3.) The learned counsel for the appellant contended that since the site, in dispute, was incapable of partition, the plaintiff was entitled to the relief of mandatory injunction as well. On the other hand, the learned counsel for the respondents submitted that no such plea was taken, nor was there any such finding given by either of the Courts below and, therefore, it could not be urged on behalf of the appellant that the site, in dispute, was not capable of partition. Thus, this Court vide order dated November 30, 1983 framed the following additional issue :