An injunction suit is not maintainable when the title is contested, necessitating a declaratory judgment before granting injunctive relief.

JUDGMENT :

Easwaran S., J.

The defendants in a suit for injunction concurrently non-suited by the Principal Munsiff Court, Alappuzha, in O.S.No.299/2013 as well as by the Addl. District Court-II, Alappuzha, in A.S.No.45/2018, have come up in the present appeal.

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

2.1. The respondent herein/plaintiff obtained 3 acres and 7 cents in Survey No.698/2A, 698/2B, 698/2C, 698/2D, 698/2F, 695/3 and 695/2 of Pazhaveedu Village, Ambalappuzha Taluk as per partition deed dated 21.08.1969. In addition to this, it is claimed that he also derived right, title and interest over 10 cents of land in Survey No.698/2A. The devolution of the title is traced to a sales certificate issued by the District Court, Alappuzha in O.S.No.1/1098 in the year 1065 ME. It is further contended that the defendants, with the intention to trespass on the property and encroach upon it, threatened the plaintiff that if the plaintiff obstructs their attempt to demarcate the property through the village officials, they will be forced to trespass onto the property.

2.2. The defendants resisted the suit contending that the property owned and possessed by the defendants and other co- owners are included in the boundaries mentioned in the plaint schedule property. The plaintiff has no right, title or possession over the property and that the plaintiff is not entitled for the relief sought for. It is further contended that, the defendants’ grand father one Kunjamutti was the absolute owner of property covered by Sale Deed No.148/1085 ME. After the death of Kunjamutti and his wife, their right devolved upon her son, the defendants’ father. After the death of the defendants’ father, his right devolved upon his children, the defendants/appellants herein and the portion of the property mentioned in Sale Deed 148/1085 ME was also included in the plaint schedule property. The defendants have right and possession over 9.97 acres of property in Survey Nos.698/1A, 698/1B, 698/2A, 698/2B, 698/2C, 694/13A, 694/14B, 694/14C, 694/14D, 694/16A, 695/12, 699/10A and 699/2 as per Sale Deed No.148/1085 ME. It is also contended that his properties are also included in the Partition Deed No.628/1112 ME.

2.3. On behalf of the plaintiff, Exts.A1 to A53 documents were produced and PW1 to PW7 were examined. On behalf of the defendants, Exts.B1 to B5 were produced and DW1 to DW6 were examined. Exts.C1 and C2 series are the reports and Mahazars produced by the the Advocate Commissioner. Ext.X1 series to Ext.X18 are the exhibits marked through third party, the revenue authorities. On the basis of the oral and documentary evidence, the Trial Court framed the following issues:

1. Whether the plaintiff is having possession over the plaint schedule property ?

2. Whether the plaintiff is entitled to get a prohibitory injunction as prayed ?

3. Reliefs and costs ?

2.4. The Trial Court, on appreciation of the oral and documentary evidence, especially Ext.C1 report of the Advocate Commissioner, concluded that the plaintiff has proved possession and therefore, decreed the suit. Aggrieved, the defendants preferred A.S.No.45/2018 before the Addl. District Court-II, Alappuzha. The First Appellate Court, on reappreciation of the evidence, concluded that the defendants’ predecessor did not derive any property in Survey Nos.695/2 and 698/2 and therefore, proceeded to dismiss the appeal. Aggrieved by the dismissal of the appeal by the Addl. District Court-II, the defendants have come up in the present appeal.

3. Heard, Adv.T.Krishnanunni – learned Senior Counsel, assisted by Adv.Nivedhitha Prem V., appearing for the appellants and Adv.Grashious Kuriakose, learned Senior Counsel, assisted by Adv.Jayasree K.P., appearing for the respondent.

4. On 08.03.2021, this Court framed the following substantial questions of law for consideration:

1. Whether the Trial Court and the First Appellate Court justified in arriving at the finding that the suit for injunction