1. These second appeals emanate from the judgments and decrees in two suits; viz., O.S.Nos.538 of 1986 and 842 of 1986 filed before the Munsiff's Court, Cherthala. Appellant is the 1st plaintiff in O.S.No.538 of 1986 and the 1st defendant in O.S.No.842 of 1986. Contesting respondents are the opposite parties to the suits.

2. Brief facts are as follows: O.S.No.538 of 1986 is a suit for permanent prohibitory injunction. Plaint schedule property, with other items, originally belonged to Areepparambathu Raghava Menon. He bequeathed the plaint schedule property in favour of the plaintiffs' mother, Gouri Amma Bhavani Amma, by executing a Will dated 17.08.1122 M.E. After his death, the Will took effect and the property devolved on the legatee. There was a partition in the thavazhi of Bhavani Amma and D schedule in the deed of partition was set apart to the share of the plaintiffs. Since the 1st plaintiff was residing away, his younger brother, the 2nd plaintiff, was looking after the property. When the plaintiffs started construction of a building in the property, the defendants obstructed. Hence the suit for prohibitory injunction.

3. In the written statement the defendants contended that the plaint schedule property never formed part of survey No.186/5A-2, having an extent of 1.53 acres. It formed part of 2.63 acres in survey No.186/5A. It is included in 63 cents, on the northern extremity of 2.63 acres of land. 63 cents mentioned above was not included in the Will. It is pertinent to note that execution of the Will by Raghava Menon was not disputed at all. Plaintiffs' mother did not get any right over 63 cents of land. Plaint schedule property was kept in common, as item No.37 of A schedule in a partition deed of the year 1100 M.E. That property had been used by the family members as a cremation ground. Thereafter, members of the family started using it for some rituals, like “paravaippu” and “thalapoli” in connection with “arattu” procession of Cherthala Devi Temple. Plaintiffs are not entitled to construct any building in the plaint schedule property.

4. The contentions raised in the plaint in O.S.No.842 of 1986 are identical to the plea in the written statement in O.S.No.538 of 1986. The contesting defendants in O.S.No.538 of 1986 are the plaintiffs herein. They reiterated their contentions and claimed an injunction decree against the defendants (plaintiffs in O.S.No.538 of 1986) from making any construction in the property.

5. Defendants in the above suit contended that they are entitled to the property by virtue of the bequest by Raghava Menon in favour of their mother and also by subsequent partition in the family.

6. Ideally, these two suits should have been tried jointly. Instead, they were tried separately. Suit filed by the appellant and another (O.S.No.538 of 1986) was dismissed and the suit against the appellant and others (O.S.No.842 of 1986) was decreed. Hence they preferred A.S.Nos.91 of 1989 and 98 of 1990 before the Court of Subordinate Judge, Cherthala. The appeals were heard jointly and disposed by a common judgment. Pending the appeals, 2nd plaintiff in O.S.No.538 of 1986 died. The lower appellate court confirmed the judgments and decrees passed by the trial court and dismissed the appeals.

7. Heard the learned Senior Counsel appearing for the appellant and the learned counsel for the respondents.

8. Learned Senior Advocate contended that the lower appellate court erred in not considering the scope and legal effect of Exts.B1, A8 and A9 documents. Documents are referred to in the order in which they are marked in O.S.No.538 of 1986. It is further contended that the lower appellate court committed a grave mistake in proceeding on the basis that the appellant did not prove his title and possession to the suit property merely for the reason that there is a difference in survey number shown in the plaint as well as in the documents. It is the definite contention that the court below failed to advert to the recit