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2007 (12) TMI 490 - SC - Indian LawsSuit for permanent and mandatory injunction - Disputed tittle of ownership - Jurisdiction under Section 151 of the Code of Civil Procedure - encroached portion of the suit property by erection of structure - decree of permanent injunction - Respondents contended that they are owners of a portion of Survey No. 1008/1 - appellants who are the owners of the abutting land bearing CTS No. 4823/A-1 had encroached upon a portion - Plaintiffs purchased the said plots by a deed of sale dated 7.11.1984, whereas the date of purchase made by the defendants dated 17.8.1992 HELD THAT:- The High Court opined that the Trial Court could exercise discretion in this behalf. It is again one thing to say that the courts could pass an interlocutory order in the nature of mandatory injunction in exercise of its jurisdiction under Section 151 of the Code of Civil Procedure on the premise that a party against whom an order of injunction was passed, acted in breach thereof; so as to relegate the parties to the same position as if the order of injunction has not been violated, but, it is another thing to say that the courts shall exercise the same power while granting a decree permanent injunction in mandatory form without deciding the question of title and/or leaving the same open. How, in the event the structures are demolished, it would be possible for the appellants to work out their remedies in accordance with law in regard to the title of the property has not been spelt out by the High Court. We, therefore, are of the opinion that the interest of justice would be subserved if the impugned judgments are set aside and the matter is remitted to the learned Trial Judge for consideration of the matter afresh. The plaintiffs may, if they so desire, file an application for amendment of plaint praying inter alia for declaration of his title as also for damages as against the respondents for illegal occupation of the land. It would also be open to the parties to adduce additional evidence(s). The learned Trial Judge may also appoint a Commissioner for the purpose of measurement of the suit land whether an Advocate - Commissioner or an officer of the Revenue Department. Before us, additional documents have been filed by the appellants showing some subsequent events. It would be open to the defendants to file an application for adduction of additional evidence before the Trial Judge which may be considered on its own merits. Appeal is allowed.
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