JUDGMENT

Dated this the 27th day of September, 2022 This appeal has been directed against the judgment and decree in A.S. No.99/2012 on the file of Sub Court, Ottappalam which in turn arose out of judgment and decree in O.S. No.131/2009 on the file of Munsiff- Magistrate's Court, Pattambi.

2. The appellants are the defendants and the suit was one for permanent prohibitory injunction. (Parties would hereinafter be referred as per their status before the trial court.) The plaint schedule property originally belonged to the mother of the plaintiff as well as the 1st defendant as per the partition deed No.1365/94 of Thrithala Sub Registrar Office dated 27.4.1994. The mother of the plaintiff executed a registered will No.117/1994 of Thrithala S.R.O. dated 25.11.1994 in favour of the plaintiff. Mother expired on 04.10.2002. Thereby, plaintiff is in absolute possession and enjoyment of the plaint schedule property.

3. The plaintiff has been residing in the house situated in the plaint schedule property with family. The plaint schedule property is situated within definite boundaries. The 1st defendant made attempt to trespass into the plaint schedule property raising untenable claims. He made peg marking and drawn rope and thereby made attempt to trespass into a portion of plaint schedule property on 23.8.2009. It was obstructed by the plaintiff, but the defendants threatened to trespass into the plaint schedule property further and thereby suit has been filed.

4. Defendants filed written statement denying the execution of will by the mother on her free will and volition. According to him, it is a fabricated document and the mother has not signed in the same. North east of plaint schedule property there is 5 cents of property shown as tak No.2 in item No.7 of Exhibit A3, partition deed which is set apart to the share of the defendants. Plaint schedule property has been described including that

5 cents of property. That portion of property has been assigned in favour of the wife of the 1st defendants as per assignment deed No.231/2009. Marking was done when plaintiff made attempt to trespass into the property allotted to the defendants as per Exhibit A3 partition deed. So, according to him there is no cause of action for filing the suit.

5. 2nd defendant was subsequently impleaded who adopted the contention in the written statement of the original defendant.

6. PW1 to PW4 were examined and Exhibit A1 to A3 marked from the side of the plaintiff. Exhibits C1 to C4 were also marked. There was no evidence from the side of the defendants. Trial court on evaluating the facts, circumstances and evidence adduced found that plaint schedule property was lying within definite boundaries on all sides and proved his possession over plaint schedule property. It is also found that execution of Exhibit A1 will has been proved by the plaintiff through PW2 and PW3 and accordingly decreed the suit as prayed for.

7. Against which defendants filed appeal and the 1st appellate court on re-appreciating the facts, circumstances and evidence adduced confirmed the judgment and decree passed by the trial court.

8. Having lost before the two lower forums the appellants/defendants approaches this Court in this regular second appeal. Notice was issued to the respondent/plaintiff. Both sides were heard.

9. According to the learned counsel for the defendants, both courts failed to frame proper issue since the claims with respect to plaint schedule property based on Exhibit A1 will which is disputed by the defendants and issue regarding the genuineness of the Exhibit A1 will ought to have been raised. In the absence of Exhibit A1 will, 1st defendant will become the natural heir of the plaint schedule property along with the plaintiff. Hence no injunction could have been granted against the co-owner. It is also his contention that without raising an issue with regard to the title both courts below have gone into the question of title by examining the genuineness of Exhibit A1