A suit for bare injunction is not maintainable when the title to the property is under a cloud; the plaintiff must instead seek a declaration of title. Appellate courts will not interfere with concurrent findings of fact unless perversity or a total lack of evidence is demonstrated.

JUDGMENT :

P.B. Balaji, J.

1.The plaintiff, who suffered concurrently before the trial Court and the first appellate Court, in a suit for permanent injunction, is the first appellant herein. The appellants 2 to 6 are the legal heirs of the deceased first appellant / plaintiff.

2. The second appeal was admitted by me on 17.04.2026 on the following substantial questions of law:

I. Is not the Courts below misread Exhibit A.4 insofar as the right of the appellant's mortgage right is concerned?

II. Is not the Courts below committed an error in dismissing the suit without lookin into the basic fact that the decree for redemption in respect of ¼ of 90 cents in Survey No.2521 having not been redeemed and delivering is in respect of B schedule of 60 cents, in O.S.No.393 of 1982 which there is no mortgage?

3. I have heard Ms.J.Anandhavalli, learned counsel for the appellants, legal representatives of the plaintiff / first appellant and Mr.K.N.Thampi, learned counsel for the contesting first respondent/ first defendant.

4. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

5. For better appreciation and adjudication of the second appeal, the following relevant facts are culled out:

The property in old survey No.2521, R.S.No.147/1A in Methukummal village, originally belonged to one Puthalathu Veedu, under partition deed dated 28.07.1975, to which, the plaintiff was a party, the plaintiff being allotted B schedule properties to the said partition deed. According to the plaintiff, his entitlement was half jenmom right and ¼ mortgage right, totalling 3/4^th share in old survey No.2521. The plaintiff claimed to be in possession of the suit property, paying land tax. The plaintiff also put up a building after obtaining sanction from the local panchayat and was residing there, by paying building taxes to the panchayat. Referring to the partition deed, the plaintiff also contends that parents of the plaintiff had a mortgage right, which was released in favour of the plaintiff. The plaintiff earlier filed a suit in O.S.No.398 of 1982 for partition and other reliefs against the first defendant, who was the fifth defendant in the said suit. A preliminarily decree was passed and thereafter a final decree was also passed on 12.10.1999. In the said suit, the second defendant herein was the first defendant and the third defendant's father was the second defendant. The original extent of land in old survey No.2521 is 90 cents, however, after re-survey, the available extent is only 78 cents. An Advocate Commissioner was appointed in O.S.No.398 of 1982 and plot Nos.A and A1 were allotted to the plaintiff having a total area of 39 cents and his ¼ mortgage right, according to the plaintiff, falls in plot No.B of an extent of 19.5 cents. The plaintiff is in possession of the said plot No.B and the mortgage had also become time barred and thus the plaintiff cannot be even evicted except by due process of law. Alleging that the first defendant is attempting to forcibly dispossess from the plaintiff, from plaint A schedule property, the suit came to be filed.

6. The first defendant filed a written statement contending that the partition deed relied on by the plaintiff does not in any manner affect the right of the first defendant to plaint A schedule property. The plaintiff, though party to the partition deed, was not allotted any suc