In injunction suits, courts must prioritize evidence of title and possession, ensuring proper property identification; reliance on flawed survey reports leads to miscarriages of justice.

JUDGMENT :

EASWARAN S., J.

1. The appeal arises out of the judgment and decree in O.S.No.170/1992 on the files of Munsiff Court, Koyilandy as confirmed in AS No.21/2011 by the Subordinate Court, Koyilandy.

2. Brief facts necessary for the disposal of the appeal are as follows: O.S.No.170/1992 was filed for permanent prohibitory injunction restraining the defendents from trespassing into the plaint schedule properties. Plaintiffs claimed that they derived the right title and interest over the plaint schedule properties by virtue of a partition deed 1464/1949. The suit property is a coconut garden and the northern portion is a rocky area measuring about 50 cents. The southern portion of the property of the defendants is also a rocky area and defendants started blasting rocks from their property and made an attempt to encroach into the rocky area belonged to the plaintiffs on 30.6.1992. Apprehending further action, the suit was filed. The defendants contested the suit contending that the predecessor of the plaintiffs had no right in title and interest over the property. The schedule attached to the plaint is not in confirmity with the description of the property shown in item No.7 in the partition deed of 1949. The scheduled attached to I.A No.894/1992 is filed for temporay injunction was also shown differently with ulterior motive. In the schedule, apart from measurement shown as 25 x 75 kole another measurement is shown as 15x85 ½ kole and there is no mention in the plaint regarding the devolution of right title and interest regarding Chandappan or the plaintiffs in respect of the excess property shown by the measurement as 15x85 ½ kole. The plaintiffs are required to prove the title over item No.7 in the partition deed. An additional written statement was also filed contending that the defendants have got properties comprised in re-survey No.73/1, 25/3A and 25/3B.

3. On behalf of plaintiffs Exts.A1 to A16 were produced and PWs 1 to 4 were examined. Exts.B1 to B4 series were produced on behalf of defendants. Exts.C1 to C7 are the reports and plans of the Advocate Commissioner along with surveyor's plans. Ext. X1 is the file related to loan No.6438 of Koyilandi Service Co-operative Bank. Initially the suit was dismissed against the plaintiffs and thereafter they preferred appeal wherein the first appellate court set aside the judgment and decree and remanded the suit for fresh consideration. On remand, yet another Advocate Commissioner was appointed for measuring the plaint scheduled property. Exts.C8 to C11 are the Commissioners' reports and Surveyor's plans. The trial court after remand found that on consideration of Ext.C8 plan and Ext. C10 report, there were inconsistent statements and that it is not possible to identify the plaint schedule property with reference to the report and therefore declined reliefs to the plaintiffs. While doing so, the trial court also went into the question of title of the plaintiffs and found that going by the documents produced along with Ext.X1 file, the property having a measurement of 15x85 ½ kole does find place in schedule to the document, and therefore, held that the plaintiffs does not have any right over the extent and accordingly the suit was dismissed. Aggrieved the plaintiffs preferred AS No.21/2011. The first appellate court also concurred with the findings of the trial court and going by Ext.A1 document itself it is not possible to conclude that the plaint schedule property is comprised in two plots and therefore dismissed the appeal. Aggrieved, the presen