Mandatory injunction for removal of encroachment is barred by limitation if sought beyond the statutory period from the date of construction.

The respondent (plaintiff) filed O.S. No. 64 of 2013 seeking a declaration of ownership of 'B' schedule property, a permanent injunction, and a mandatory injunction to remove the appellant's (defendant's) construction on said property

Earlier, the respondent had filed O.S. No. 266 of 2011 for a declaration of ownership of a pathway, while the appellant filed O.S. No. 114 of 2011 for a permanent injunction

The Trial Court in O.S. No. 64 of 2013 granted the declaration but refused the mandatory injunction, finding the construction existed since 1985

However, the First Appellate Court (A.S. No. 123 of 2014) reversed this, granting the mandatory injunction on the grounds that the respondent only discovered the encroachment via the Advocate Commissioner’s report

The appellant challenged these findings in the Second Appeals

1. Whether the First Appellate Court was correct in holding that the respondent learned of the encroachment only through the Advocate Commissioner’s report and not in 1985, thereby granting the relief of mandatory injunction beyond the statutory period of limitation?

2. Whether the concurrent findings regarding the easementary nature of the suit pathway in O.S. No. 114 of 2011 and O.S. No. 266 of 2011 warrant interference under Section 100 of the CPC?

The Court applied Section 100 of the Civil Procedure Code (CPC), which limits High Court intervention in second appeals to cases involving substantial questions of law and prohibits interference with concurrent findings of fact unless they are perverse

The Court applied the principles of the Law of Limitation regarding mandatory injunctions and the doctrine of "Easement of Necessity," emphasizing that such a right should be restricted to the minimum extent required for ingress and egress and cannot be claimed as a "luxury"

The High Court found that the respondent had explicitly admitted during trial that the appellant's construction on the suit pathway was put up as early as 1985

Consequently, the Court held that the First Appellate Court’s finding—that the respondent only realized there was an encroachment after the Advocate Commissioner’s report—was a "clear perversity" and a failure to appreciate the evidence on record

Since the encroachment was known since 1985, the prayer for a mandatory injunction in 2013 was "hopelessly time barred"

Regarding the easementary rights, the Court noted that while the respondent established a right of access, they were already enjoying access despite the construction; therefore, equity did not favor a mandatory injunction for a delayed claim

It partly allowed S.A.(MD) No. 594 of 2021, setting aside the First Appellate Court's decree for a mandatory injunction and restoring the Trial Court's judgment, which granted only the declaratory relief

S.A.(MD) Nos. 97 and 98 of 2022 were dismissed, as the concurrent findings of the lower courts in those suits did not present any substantial question of law

No costs were ordered