TMI Blog2019 (9) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... e defendants, which has not been done by the plaintiff in the instant case. As per Article 113 of the Limitation Act, right to sue accrues when there is an accrual of the rights asserted in the suit and an unequivocal threat by the defendant to infringe the right asserted by the plaintiff in the suit and the period of limitation is 3 years - In the instant case, even though the revision petitioner/plaintiff admits that the defendants had completed the construction over the suit property at the time of disposal of petition, they did not file a petition to amend the plaint for inclusion of the prayer for recovery of possession from the defendants. In the instant case, on the date of filing of amendment petition, admittedly the revision petitioner/plaintiff was not in possession of the suit property - On the other hand, the respondents/defendants have put up construction over the suit property and they have also alleged in their written statement that as per the proceedings of the Board of Revenue in G.O.Ms.No.2953, Public Works Department dated 30.09.1947, the suit property was transferred to the Police Department and thus, they have exclusive right over the suit property. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure praying to appoint an advocate commissioner to inspect the suit property and to measure the illegal construction made by the defendants, with the help of a Taluk Surveyor and a Chartered Civil Engineer. They also filed another application in I.A.No.118 of 2010 under Order VI Rule 17 of the Code of Civil Procedure praying to amend the plaint to include the prayer of mandatory injunction directing the respondents/defendants to remove the construction put up by them in the suit property. 4. The 2nd respondent/2nd defendant filed his counter in both the petitions and the same was adopted by the respondents/defendants 1 and 3. The contention of the respondents is that since the defenants had questioned the very title of the plaintiff in their written statement, the suit filed by the plaintiff for a bare injunction is not maintainable and that the petition filed by the revision petitioner/plaintiff under Order VI Rule 17 praying to include the prayer of mandatory injunction in the suit is barred by limitation. 5. Their contention in the petition in I.A.No.72/2010 is that since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... moval of the construction put up by them in the suit property. 9. Per contra, Mr.N.Vijayaraghavan, learned Advocate General, appearing for the respondents contended that when the defendants have questioned the title of the plaintiff in their written statement, the plaintiff did not seek for the relief of declaration of their tile to the suit property and for recovery of possession from the defendants and on the contrary, the suit was filed for a bare injunction, which cannot be maintained. His further contention is that the petition in I.A.No.118/2010 filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure praying to amend the plaint for inclusion of the prayer of mandatory injunction directing the defendants to demolish the construction put up by them in the suit property is also barred by limitation since the plaintiff is in know of the fact that the defendants have already put up construction over the suit property at the time of filing a writ petition in W.P.No.5766 of 1999 before this court. He further drew the attention of this court to the prayer in the petition in I.A.No.118 of 2019, which reads that For the reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be observed that the revision petitioner/ plaintiff had filed the suit in O.S.No.852/1998 for a bare injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit property. It is also relevant to note that in the petition in I.A.No.118 of 2010, the revision petitioner had alleged that at the time of disposal of CRP No.3027 of 1999 by this court on 25.11.1999, the respondents submitted before this court that they had completed construction in the suit property. 12. In the decision in Bodi Reddy Vs. Appu Gounder reported in 1970(2) MLJ 577 , Honourable Justice M.M.Ismail, as he then was has observed thus, A prayer for a mandatory injunction may be made by a plaintiff in different situations. Broadly, it may be in two categories of cases. One is, where the defendant has trespassed on the plaitniff's land and put up a construction, the plaintiff, who is entitled to recover possession of his land, may in a suit for ejectment ask for a mandatory injunction as incidental to the principal relief which he has prayed for. In such a case, the encroacher who puts up the construction on another's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endant. In all these cases, the primary relief which the plaintiff can have in a suit instituted by him is the mandatory injunction directing the defendant to remove the construction put up by him, and the prayer for mandatory injunction in such a suit is neither ancillary nor incidental, but that is the only manner in which the injury suffered by the plaintiff can be remedied or rectified. Such suits can be very properly described as suits for injunction as distinguished from the first category, namely, suits in ejectment or for possession based on trespass or encroachment on the part of thte defendant. Where the primary relief claimed is a mandatory injunction and the injunction having been originally an equitable relief and subsequently the grant thereof being in the discretion of the court, it is certainly open to the court to see whether the plaintiff could be adequately compensated by the award of damages and whether there are other circumstances present in the case to justify the award of damages to the plaintiff instead of granting a mandatory injunction. 13. In the instant case, the revision petitioner/plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X
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