JUDGMENT/ORDER 1. Sri.Sangram S.Kulkarni., learned counsel for appellant and Sri.Shridhar Hiremath., learned counsel on behalf of Sri.G.I.Gachchinamath., for respondent No.7 have appeared in person. 2. This appeal is from the Court of the II Addl. Civil Judge (Sr.Dn), Hubli. 3. For the sake of convenience, the parties shall be referred to as per their status and ranking before the Trial Court. 4. The facts are quite simple and are stated as under: It is stated that the plaintiff is the absolute owner of immovable property measuring East-West 44 feet and North-South 28 feet towards the Western side and 27 1/2 feet out of CTS No.682/1, Ward Extension situated in Walvekar Plot, Near Ramnagar, Keshwapur, Hubli. The second defendant is the owner of the adjacent property under CTS No.683 and one Sri.Timmappa Naik has purchased the remaining Eastern portion of CTS No.682. It is contended by the plaintiff that a week before the filing of the suit, defendants 1 and 2 started digging up foundation pits abutting her property towards the Northern side. The husband of the plaintiff requested the defendants to show the building permit obtained from HDMC and other details regarding necessary setbacks to be left and exact measurements of the property to be constructed. But the defendants refused to do so and continued with the construction work. Plaintiff suspecting the bonafide, lodged complaint to the Commissioner, HDMC, and jurisdictional police on 8/6/1999 and 10/6/1999. In continuation, to settle the matter, the plaintiff requested some of the elderly persons in the locality to settle the matter and the elders advised both the defendants to get the property measured through the concerned Revenue Authorities and show the building permission to them. But the defendants did not bother to listen. Apprehending that defendants 1 and 2 will encroach upon the suit property shown as BCG in the hand sketch, the plaintiff filed a suit for a declaration and mandatory injunction directing defendants 1 and 2 to remove the encroached portion. On issuance of suit summons, defendants 1 and 2 appeared through counsel and filed a written statement. They denied the plaint averments. The first defendant contended that he has received the property from the second defendant by way of a Gift and is enjoying the suit property peacefully without any interference or hindrance. On issuance of suit summons, defendants 1 and 2 appeared through counsel and filed a written statement. They denied the plaint averments. The first defendant contended that he has received the property from the second defendant by way of a Gift and is enjoying the suit property peacefully without any interference or hindrance. They contended that they have demolished the old structure and constructed the building legally by obtaining building permission from the competent authority i.e., HDMC. They denied the alleged encroachment and violation of set-back Rules and Zonal Regulations. They specifically contended that if there is any violation or encroachment, the Competent Authority i.e., the Corporation would not have granted the approved plan and permission. Hence, the construction put up by them is in consonance with the permission of the Competent Authority. Among other grounds, they prayed for the dismissal of the suit. Based on the above pleadings, the Trial Court has framed the following issues: ISSUES 1. Whether plaintiff proves that, the defendants No.1 and 2 have made construction by making encroachment as alleged in para 12 of the plaint, on suit property illegally, in violation of set back rules as shown in plaint hand sketch? 2. Whether plaintiff proves that, the defendants are trying to make further encroachment on suit property, thereby obstructing her peaceful possession and enjoyment of suit property? 3. Is there any cause of action? 4. Whether Court fee paid is proper? 5. Whether the plaintiff is entitled to the reliefs sought? 6. What order or decree? To substantiate the claim, the husband of plaintiff one Mohammad Hanif Kolur was examined as PW1 and two more witnesses were examined as PW2 and 3 and produced twentytwo documents which were marked as Ex.P.1 to Ex.P.22. On the other hand, defendant No.1 was examined as DW1 and produced nine documents which were marked as Ex.D.1 to Ex.D.9. One Sri.Siddalingappa Ishwarappa Honnagudi was examined as CW1 and produced five documents Ex.C.1 to Ex.C.5. On the trial of the action, the Trial Court dismissed the suit. On appeal, the Appellate Court reversed the Judgment and Decree of the Trial Court. Hence, the first defendant has filed this Regular Second Appeal under Sec. 100 of C.P.C. 5. One Sri.Siddalingappa Ishwarappa Honnagudi was examined as CW1 and produced five documents Ex.C.1 to Ex.C.5. On the trial of the action, the Trial Court dismissed the suit. On appeal, the Appellate Court reversed the Judgment and Decree of the Trial Court. Hence, the first defendant has filed this Regular Second Appeal under Sec. 100 of C.P.C. 5. Sri.Sangram S.Kulkarni., learned counsel for the appellant submits that the Judgment and Decree of the Appellate Court are contrary to the law, facts, and evidence of the case proceedings between the parties to the lis. Next, he submits that the First Appellate Court while appreciating the evidence on record has erroneously concluded that the first defendant has encroached on the building in a setback and decreed the suit. It is submitted that the oral evidence does not establish the fact that the first defendant constructed the building in violation of the sanctioned plan. A further submission is made that the Trial Court appointed a commissioner to measure the property and give a report. The Court Commissioner's report shows that the first defendant has not encroached upon the property of the plaintiff. Learned counsel vehemently contended that the oral evidence of PWs1, 2 and 3 does not throw any light on the encroachment and the illegal construction. He submitted that the First Appellate Court based on surmises and conjectures has concluded that the first defendant has encroached and constructed the building in violation of the sanctioned plan and decreed the suit. Lastly, he submits that viewed from any angle, the Judgment and Decree of the Trial Court are unsustainable in law and the same require interference by this Court. Accordingly, he prayed that appeal may be allowed. 6. Sri.Shridhar Hiremath., learned counsel for respondent No.7 - Corporation has urged several contentions and submitted that appropriate order may be passed. 7. Heard the submissions and contentions put forth on behalf of the respective parties and perused the appeal papers & records with utmost care. The facts of the case have been sufficiently stated and the same does not require any reiteration. The suit giving rise to this appeal was filed by the plaintiff seeking the relief of declaration and a mandatory injunction as well as a Permanent injunction. Suffice it to note that the plaintiff filed a suit based on an apprehension that defendants 1 and 2 may encroach upon the suit property. The suit giving rise to this appeal was filed by the plaintiff seeking the relief of declaration and a mandatory injunction as well as a Permanent injunction. Suffice it to note that the plaintiff filed a suit based on an apprehension that defendants 1 and 2 may encroach upon the suit property. The first and main area of challenge is that there is no cause of action to initiate action and the second is that the First Appellate Court has failed to have regard to relevant considerations and disregarded relevant matters, in particular about Mandatory Injunction. This appeal raises interesting and important questions as to the principles on which the Court will grant quia timet injunctions particularly when mandatory. Quia timet means "because he fears". Quia timet is an injunction to restrain wrongful acts which are threatened or imminent but have not yet commenced. FLETCHER V. BEALEY - (1884) [28 Ch.D. 688 at P.698] stated the necessary conditions for equity courts to properly grant an injunction in such cases: 1. Proof of imminent danger; 2. Proof that the threatened injury will be practically irreparable; and 3. Proof that whenever injurious circumstances ensue, it will be impossible to protect the plaintiff's interests, if relief is denied. To obtain a quia timet injunction, there must be an immediate threat to do something. Plaintiff has brought an action against the defendants. The litigation relates to a mandatory injunction. A mandatory injunction is an order compelling a defendant to restore things to the conditions in which they were when the plaintiff's complaint was made. According to the definition given by Salmond, a mandatory injunction is "an order requiring the defendant to do a positive act for the purpose of putting an end to a wrongful state of things created by him, or otherwise, in fulfillment of the legal obligations, for example, an order to pull a building which he had already erected to the obstruction of plaintiff's rights". A right to a mandatory injunction that is, to a restorative mandatory injunction, arises if the following conditions are fulfilled: Firstly, the state of affairs which is complained of must ordinarily be such that earlier, before it arose, the plaintiff might have obtained a prohibitory injunction restraining the defendant from bringing it about, unless indeed such an injunction would earlier have been refused only on discretionary grounds which for one reason or another are found not to be decisive weight in the later proceedings for the mandatory injunction. Secondly, the state of affairs that might thus have been prohibited from coming about must be shown to have arisen by the time at which the material order is sought. Thirdly, it must not have become impossible for the defendant to restore the earlier position. Fourthly, it must appear that damages and other legal remedies are not sufficient, that is, that they would not put the plaintiff in substantially as favorable a position as if he had received equitable relief in specie. Fifthly, it must appear in all the circumstances, and particularly in view of equitable consideration, such as laches and hardship and inconvenience as between the parties, that the fairest and reasonable course is that the particular order which is sought should be granted. These conditions may be regarded as both necessary and sufficient, that is, wherever, they are all fulfilled-but only if they are all fulfilled - an injunction in the appropriate mandatory form will be granted. It is clear, therefore, that there is no real distinction between injunctions restrictive and mandatory, beyond this, that the order in the former is negative, and in the latter, it is positive: in the one, a wrongful act is forbidden, in the other, the performance of some act is enjoined, but the purpose and effect of both are identical, viz., restoration to the status quo ante. The object of injunctions is prevention, and they aim to maintain status-quo ante. This can usually be effected by a merely restrictive order, i.e., one which forbids the carrying out a threat of injury, or the repletion of an injurious act. Bearing these principles in mind I have examined the records in this case minutely and I have not failed to keep ever present in my mind the material propositions put forth by the parties to the lis. I have carefully perused the pleadings. Bearing these principles in mind I have examined the records in this case minutely and I have not failed to keep ever present in my mind the material propositions put forth by the parties to the lis. I have carefully perused the pleadings. The allegation is that the defendants have not left the setback and they have not constructed the building as per the sanctioned plan. On the other hand, the defendants specifically contended that there is no cause of action and they have obtained the necessary permission from the Competent Authority for the construction of the building, accordingly, they have left the setback and the construction is by the permission granted by HDMC. To substantiate the contention, the claim for mandatory injunction, the husband of the plaintiff was examined as PW1. He has deposed as under: In the cross examination, PW1 has deposed as under: Defendant No.2 was examined as DW1 and he has deposed that he constructed the property as per the permission granted by HDMC. A suggestion was made to him and he has deposed as under: PW2 has deposed as under: Suffice it to note that in the Trial Court, a Court Commissioner was appointed and five documents were marked through him as Ex.C.1 to Ex.C.5. Ex.C.4 and 5 are the Commissioner Report and it contains a memo of instructions given by the plaintiff and defendants and the scale map and the hand sketch. Counsel Sri. Sangram S. Kulkarni., in presenting his argument drew the attention of the Court to Ex.C.4 and strenuously urged that the Court Commissioner has given a report that Defendant No.1 has left a setback of 6 feet 6 inches towards North-West and 2 feet 6 inches towards South and the Commissioner has also given a clear report that the defendant No.1 has not encroached any suit land. Perused the Commissioner Report with utmost care. The Court Commissioner has reported as under: The report of the Commissioner depicts that the defendants have left the setback and there is no encroachment as alleged by the plaintiff. Based upon the oral and documentary evidence on record, more particularly taking note of the Commissioner's report, the Trial Court dismissed the suit. However, on appeal, the Appellate Court misdirected itself and on an erroneous assumption, placed reliance only on Points No.2 and 3 of the Commissioner's report and decreed the suit for a mandatory injunction. Based upon the oral and documentary evidence on record, more particularly taking note of the Commissioner's report, the Trial Court dismissed the suit. However, on appeal, the Appellate Court misdirected itself and on an erroneous assumption, placed reliance only on Points No.2 and 3 of the Commissioner's report and decreed the suit for a mandatory injunction. The situation complained of is about not leaving setbacks and not obtaining the necessary permission from the competent authority for the construction of the building. In my view, the state of affairs which is complained of does not give a right to a mandatory injunction. Let me answer the question about the cause of action. Suffice it to note that in the written statement the defendants specifically pleaded that there is no cause of action. Learned counsel Sri.Sangram S.Kulkarni., argued that there is no cause of action to file a suit. It is necessary to briefly consider the position which arises when submission of "No cause of action" is made. As is well known that a suit is always based on a cause of action. The expression 'cause of action' has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right but the infraction coupled with the right itself. Compendiously the expression means every fact that it would be necessary for the plaintiff to prove if traversed, to support his right to the judgment of the Court. It is a media upon which the plaintiff asks the Court to conclude in his favor. Bearing these principles in mind let me consider the cause of action pleaded by the plaintiff in the present case. The plaintiff stated that the cause of action for the suit arose on 19/6/1999 at about 6.30 p.m. when the plaintiff and her husband requested the defendants to show the building permission and keep the work suspended for a brief time. In the present case, the circumstances do not form the infraction of the right or the immediate occasion for the action. Therefore, the grievance alleged by the plaintiff gives no right of action at law. In the present case, the circumstances do not form the infraction of the right or the immediate occasion for the action. Therefore, the grievance alleged by the plaintiff gives no right of action at law. Hence, I have no hesitation in concluding that the action initiated by the plaintiff is a total abuse of the process of the Court. As already stated above, to obtain a quia timet injunction, there must be an immediate threat to do something. But in the present case, the Commissioner's report is clear about the setback and encroachment. The suit is one for a mandatory injunction. In the present case, the action is based on apprehension. It is relevant to note that there is no clarity about the infringement complained of by the plaintiff which can be remedied by means short of a total demolition of the construction complained of. There was no actionable wrong that might call into operation the auxiliary jurisdiction of the Court. It is needless to say that where the defendant has acted without regard to his neighbor's rights, or has tried to steal a march on him or her, or has tried to evade the jurisdiction of the Court or to sum it up, has acted wantonly and quite unreasonably about his neighbor he may be ordered to repair his wanton and unreasonable acts by doing positive work to restore status-quo even if the expense to him is out of all proportion to the advantage thereby occurring to the plaintiff. But in the instant case, the entire claim is based on the setback and the permission of the competent authority. Needless to say, an action was brought for a mandatory injunction because she fears. It is pivotal to note that the First Appellate Court relied upon only on points No.2 and 3 of the Commissioner's Report and concluded that there is encroachment and directed to remove the encroachment i.e., directed to leave set back of one meter and not 6 inches after encroached 2 feet of the plaintiff's property and the defendants further restrained by an order of permanent injunction from putting up any further construction in the property of the plaintiff and in his own property without leaving set back prescribed under relevant rules. In my view, the Appellate Court ought to have carefully verified the pleadings and the material proposition put forth by the parties to the lis to ascertain whether the defendants have acted unreasonably and that there was actionable wrong. In Halsbury's Laws of England, it is stated: "An injunction is a judicial remedy by which a person is ordered to refrain from doing or to do a particular act or thing. In the former case, it is called a restrictive injunction, and in the latter a mandatory injunction." Mandatory Injunction is an equitable relief and such relief must be granted judiciously and not arbitrarily. The essential ingredients while granting a Mandatory Injunction are: 1. Prima facie case; 2. Balance of convenience; 3. Irreparable injury. The law about a grant of injunction namely prohibitory or mandatory is quite settled. For claiming prohibitory as well as mandatory injunction, the plaintiff must establish a strong prima-facie case in his or their favor. The plaintiff is also to establish that the balance of convenience in granting injunction lies in his favor and in case, the injunction is refused, irreparable injury would be caused to the plaintiff or the plaintiffs. Unless these three conditions are established, no injunction mandatory or prohibitory can be granted. If the conditions are not fulfilled, an injunction cannot be granted in favor of the plaintiff. As is well known that two elements must be considered for the grant of a mandatory injunction: 1) What acts are necessary to prevent a breach of the obligation: and 2) Whether these acts are such as the court is capable of enforcing. The plaintiff must show that there has been a breach of obligation, i.e., legal obligation, and that it is necessary to maintain the status quo. The obligation should normally be towards the plaintiff. A neighbor's construction on his land does not owe any obligation to the plaintiff seeking a challenge to the construction. The Appellate Court while granting a mandatory injunction has failed to weigh the case on the 'Triple Test'. The Appellate Court has erred while granting a mandatory injunction, as it has failed to consider the essential elements of the same. The plaintiff did not prove the prima-facie case of encroachment. To summarize, I can say only this much this is not a case of encroachment at all. The Appellate Court has erred while granting a mandatory injunction, as it has failed to consider the essential elements of the same. The plaintiff did not prove the prima-facie case of encroachment. To summarize, I can say only this much this is not a case of encroachment at all. As already noted above, a neighbor's construction on his land does not owe any obligation to the plaintiff seeking a challenge to the construction. The substantial questions of law framed by this Court are answered accordingly. Resultantly, the Regular Second Appeal is allowed. The Judgment and Decree dtd. 5/2/2008 passed by the II Addl. Civil Judge (Sr.Dn), Hubli in R.A.No.156/2004 is set-aside. The Judgment and Decree dtd.:26/10/2004 passed by the Court of I Addl. Civil Judge (Jr.Dn), Hubli in O.S.No.302/1999 is confirmed.