In a suit for injunction simpliciter, only possession needs to be established, and the question of title must be addressed in a separate comprehensive suit.

JUDGMENT :

EASWARAN S., J.

The defendants in a suit for injunction before the Munsiff Court, Parappanangadi has come up in the present appeal aggrieved by the reversal of the judgment and decree in O.S.No.51/2003 of the Munsiff Court, Parappanangadi by the Additional District Court-III, Manjeri in AS No.80/2009.

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

The respondent/plaintiff instituted the suit for injunction contending that the plaintiff is in possession of the property covered by the 3^rd schedule to document No.1342/1963. The 5^th schedule in the document is allotted to one Damodaran Nair. The plaintiff's mother Meenakshi Amma purchased 6 cents of property from one Chathangattu Kuruppath Velayudhan Nair and also obtained properties as per partition deed No.1342/1963. The properties mentioned in the name of Damodaran Nair is mistakenly written in the partition deed as 31 cents whereas the actual measurement is only 23 cents. The plaintiff's mother died intestate and that the plaintiff is the only one legal heir. The property obtained by plaintiff and her mother as per partition deed and the property obtained by plaintiff's mother as per document No.152/1967 is scheduled in the plaint. Thus the plaint schedule property has a total extent of 44 cents in re-survey No.11/2010. The 1^st defendant is not the wife of Damodaran Nair and the 2^nd defendant is not his daughter as he died a bachelor without issues. On 25.10.2002 the defendant cut down certain plantains and pappaya trees in the plaint schedule property which lead to the filing of the criminal complaint and later since the threat to trespass continued, the suit is instituted. The defendants entered appearance and contested the suit to contend that the plaintiff never obtained 44 cents of property. Damodaran Nair obtained 31 cents of property as per partition deed No.1342/1963 and out of 31 cents, 23 cents was sold to Narayanan Nair as per sale deed in the year 1971. The defendants have no knowledge regarding deed Nos.270/1974 and 2822/1991. Since there are no boundaries on all sides of the plaint schedule properties, the same were lying in common. In the basic tax register it is clear that the properties comprised in Re-survey No.11/10 is in the name of Damodaran Nair.

3. On behalf of plaintiff Exts. A1 to A3 series were produced and PWs 1 to 3 were examined. On behalf of defendants Exts.B1 to B6 were produced and DWs 1 and 2 were examined. Exts.C1 and C2 are the reports of the Advocate Commissioner and Exts.C1(a) and C2(a) are the sketches prepared by the Advocate Commissioner. While PW3 was examined, a petition dated 01.08.2002 written by the 2^nd defendant was produced which was marked as Ext.X1 wherein it is alleged that the 2^nd defendant has admitted that the plaintiff is in the possession of the plaint scheduled property. On the basis of the oral and documentary evidence, the trial court framed the following issues.

“1.Whether, the plaint schedule description is correct?

2. Whether the plaintiff has possession over plaint schedule properties?

3. Whether the plaintiff is entitled to get a decree for permanent prohibitory injunction as prayed for?

4. What order as to costs?”

4. The trial court held that since the plaintiff could not prove the identity and possession of the property, she is not entitled for the injunction as prayed for. Aggrieved the plaintiff preferred AS No.80/2009. The first appellate court relying on the oral testimony of DW1 who admitted the handwriting of the 2^nd defendant in Ext.X1 document, held that the plaintiff has proved that she is in possession of the property. Further, the first appellate court by referring to item No.5 of Ext.A1 partition