The court upheld the principle that the grant of mandatory injunction in a suit for temporary injunction should be based on the evidence of ownership and possession of the property.

JUDGMENT :

R.S.A. No.517 of 2015 has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.446 of 2014 dated 04.02.2015 on the files of the Court of the Additional District Judge-III, Thiruvananthapuram arose from the decree and judgment in O.S. No.32 of 2000 dated 30.11.2005 on the files of the Munsiff Court, Attingal. The appellants herein are the defendants and respondents are legal heirs of the plaintiff in O.S. No.32/2000.

2. R.S.A. No.518 of 2015 has been filed under order XLII Rule 1 read with Section 100 of CPC, challenging the decree and judgment in A.S. No.450 of 2014 dated 04.02.2015 on the files of the Court of the Additional District Judge-III, Thiruvananthapuram arose from the decree and judgment in O.S. No.2 of 2000 dated 30.11.2005 on the files of the Munsiff Court, Attingal. The appellants herein are the plaintiffs and respondents are defendants 2 and 3 in O.S. No.2 of 2000 and legal heirs of the 1st defendant.

3. Heard the learned counsel for appellants as well as the learned counsel appearing for contesting respondents, in detail.

4. I shall refer the parties in these appeals as “Sri. Balakrishnan and another” and “Sri.Dileepkumar and others” for convenience.

5. At the time of admission, my learned predecessor, as per order dated 03.06.2015, admitted these appeals by formulating the following substantial questions of law:

i. Whether the courts below erred in granting a decree for mandatory injunction in a suit for prohibitory injunction simplicitor without any allegation or poof that the appellant after passing of temporary injunction order trespassed into the property and reduced the property in to their possession ?

ii. Whether the courts below were legally correct in presuming that Sreedharan, the title holder of the property was dead, by invoking Sections 107 & 108 of Evidence Act?

6. In this matter, Sri.Dileepkumar filed O.S. No.32/2000, at the first instance claiming absolute title over the entire plaint schedule property on the strength of documents duly executed by Sreedharan and in continuation of the same, by the subsequent assignees. Accordingly, the relief of vacant possession of the plaint schedule property from Sri.Balakrishnan and another was sought for.

7. Thereafter, Sri.Balakrishnan and another filed O.S. No.2/2000 seeking the relief of prohibitory injunction asserting possession over the plaint schedule property on contending that Sreedharan, who is the uncle of Balakrishnan, entrusted the same with him and therefore he has got right of possession over the plaint schedule property.

8. The trial court tried both cases together, treating O.S. No.2/2000 as the leading case. PW1 examined and Ext.A1 marked on the side of the plaintiffs. DWs 1 to 3 examined and Exts.B1 to B16 marked on the side of the defendants. Ext.C2 marked as court exhibits.

9. Finally, the trial court dismissed the right claimed by Sri.Balakrishnan and another including the plea of adverse possession and limitation, while holding that Dileepkumar and Ayyappan Bhanu perfected title over plaint schedule property and thereby they were entitled to the relief of vacant possession of the same. Accordingly, O.S. No.2/2000 was dismissed and O.S. No.32/2000 was allowed directing the defendants therein to surrender vacant possession of the said property and building therein within one month.

10. Though, appeals filed challenging the verdict of trial court vide A.S. Nos. 446 and 450 of 2014, the Appellate Court also dismissed the said appeals as per common judgment dated 04.02.2015.

11. To be on the crux of the matter, originally, Sri.Dileepkumar filed suit before the Vacation Court, Thiruvananthapuram on 24.12.1999 seeking the relief of permanent prohibitory injunction on asserting title and possession over the same. The same Court transferred the case to the Munsiff Court, Thiruvananthapuram and renumbered the suit as O.S. No.32/2000. As on 03.0