A suit cannot be dismissed for lack of pleadings if supported by documents; the advocate commissioner's report is valid evidence unless challenged.

JUDGMENT :

EASWARAN S., J.

The appeal is preferred by the plaintiffs aggrieved by the dismissal of O.S.No.16/2006 as per judgment dated 31.01.2012 by the Munsiff’s Court, Perumbavoor, as confirmed by the first appellate court (Sub Court, Perumbavoor) in A.S.No.47/2012 by judgment dated 23.08.2013.

2. The brief facts necessary for the disposal of the appeal are as follows:

The appellants/plaintiffs filed a suit for declaration of title, recovery of possession, and permanent prohibitory & mandatory injunction. In the year 1991, the predecessor of the plaintiffs, Sri.Gopalapanicker, purchased a two storied building and property as per sale deed No.2665/91 of SRO, Perumbavoor. The said Gopalapanicker entrusted that building to the 1^st plaintiff for running textile business. In the year 1994, Sri.Gopalapanicker bequeathed the said property to the 1^st plaintiff as per Will Deed No.38/1994 of SRO, Perumbavoor. The plaint schedule property is situated in re-survey No.4 in Block No.78 of Perumbavoor Village. In the rear side of the aforesaid two storied building, there is a courtyard and there exists a pit for flow of rain water to the drainage on the side of M.C. Road. In the year 2005, a portion of the property was acquired by the Government for the development of M.C.Road. Since the 1^st plaintiff shifted his business to A.M Road, Perumbavoor, he was unaware of the consequential developments in the property. Later, it was found that the defendants’ shop room was demolished for development of the M.C. Road and that the defendants had constructed a new shop room by trespassing into the plaint schedule property and hence, the suit.

3. The defendants entered appearance and contested the claim of the plaintiffs by filing a written statement, wherein it was contended that the plaintiffs have not stated the extent of the property acquired by the Government for development of the M.C. Road. It was further contended that in the rear side of the defendants’ building, there is vacant land having an extent of 4 sq.metres. The attempt of the plaintiffs is to obtain possession of that property. The title of the property was traced through the document of the year 1966 by which the father of the 1^st defendant obtained 32 sq. metres of property in old survey No.256/14/4 and 256/14C/2. It was further contended that in the year 1972, Kunjahammed, the father of the 1^st defendant, gifted that property to his wife-Sabiyu, son-Anvar and daughter- Nabeesu (1st defendant) as per Gift Deed No.858/72 of SRO, Perumbavoor. Thereafter, in the year 1991, the properties were partitioned among the aforesaid three persons and the 1^st defendant obtained 52 sq. metres of property and the shop rooms therein. Out of the 52 sq. metres of property, 40 sq. metres of property is entered in re-survey No.5 of Block No.78 and the remaining 12 sq. metres of property in re-survey No.4 of Block No.78. When re-survey was conducted, 12 sq. metres of property in re-survey No.4 was incorrectly entered in the thandapper account of the 7^th plaintiff, and accordingly, a complaint was lodged before the re-survey adalat and the same was corrected by the revenue authorities. Therefore, it was prayed that the suit may be dismissed.

4. On behalf of the plaintiffs, Exts.A1 to A3 documents were marked and PW1 to PW3 were examined, whereas on behalf of the defendants Exts.B1 to B11 documents were marked and DW1 was examined. Advocate commissioner was taken out for local inspection, who filed Exts.C1 series and C2 & C2(a) reports and sketches.

5. The trial court, on appreciation of evidence, framed the following issues for consideration:

“1. Whether the plaintiffs are entitled to get recovery of possession of item No.1 of A schedule on the strength of title?

2. Whether the plaintiffs are entitled to get a mandatory injunction as prayed for?

3. Whether the permanent prohibitory injunction is allowable?

4. Reliefs as costs?”

6. On appreciation of material evidence, the trial court concluded that the plaintiff