Proper identification of properties based on respective title deeds supported by old survey plan and new survey plan is necessary to grant reliefs sought in a suit for injunction and counter claim for fixation of boundary and recovery of possession.

JUDGMENT :

This appeal has been filed under Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter) against the decree and judgment in A.S.No.5/2016, dated 23.3.2018 on the files of the Sub Court, Manjeri, arose out of the decree and judgment in O.S.No.79/2012 on the files of the Munsiff Court, Manjeri. The appellant herein is the defendant in the suit.

2. I shall refer the parties in this appeal as ‘plaintiffs’ and ‘defendant’ for convenience.

3. Heard the learned counsel for the appellant/defendant and the learned counsel appearing for the respondents/plaintiffs.

4. As on 13.9.2021, my learned predecessor admitted this appeal, raising the following substantial questions of law:

1. Has not the trial court grossly erred in holding that the plaintiffs are entitled for a decree for permanent injunction as prayed for, as they have proved their possession in the plaint schedule property in a suit, in which title over the disputed property was in issue?

2. Has not the first appellate court grossly erred in confirming the judgment and decree of the trial court which decreed the suit in which title with respect to the disputed property was in issue, when the properties of the plaintiffs and the defendant were not identified with reference to the title deeds relied on by the plaintiffs and the defendant?

3. Have not the courts below grossly erred in holding that the plaintiffs are in physical possession of the plaint schedule property on the basis of reports, sketch and plan submitted by the Commissioner, when the same reveal that the plaint schedule property was identified by the Commissioner as shown by the plaintiffs?

5. Plaintiffs instituted the suit, seeking relief of prohibitory injunction against trespass upon the plaint schedule property. According to the plaintiffs, the plaint schedule property originally belonged to one Manavikraman Thirumulpad, as per partition deed No.3067/1946 and the 1st plaintiff purchased right over the same, on the strength of sale deed No.3820/1980. Later, the 1st plaintiff sold 12 cents out of the said property, in favour of the 2nd plaintiff, who is the daughter of the 1st plaintiff and the 3rd plaintiff, who is the husband of the 2nd plaintiff.

6. According to the plaintiffs, defendant is in possession of the property on the southern side of the plaint schedule property and there is a ‘channel’ separating the plaint schedule property and the defendant’s property. Later, the 1st plaintiff constructed a granite foundation. While so, the defendant and his henchmen attempted to cut and remove trees on the northern side of the water channel and at this juncture, the present suit was filed, seeking permanent prohibitory injunction to restrain them from doing so.

7. Defendant appeared and filed written statement, raising counter claim. Defendant inter alia contended that the plaintiffs are claiming title and possession over the property belongs to the defendant. According to the defendant, plaintiffs made attempt to construct compound wall encroaching a portion of the defendant’s property and the boundary was attempted to be fixed by measuring the property through Village Officer, Wandoor. The allegation that the defendant attempted to demolish the wall, was denied. The defendant raised counter claim over B schedule property, on the strength of sale deed No.3720/1986. Accordingly, the defendant prayed for fixation of southern boundary of the plaint schedule property and B schedule property belonging to him. Further, mandatory injunction, directing the plaintiffs to remove the compound wall constructed by trespassing into the plaint B schedule property, also was sought for. Alternative relief of recovery of possession also was sought for, if any portion of the defendant’s property to be found in possession of the plaintiffs.

8. The learned Munsiff raised issues adverting to the contentions raised by both sides and recorded evidence. No witness was examined on the side