Possession and proper identification of property are essential prerequisites for granting a prohibitory injunction in property disputes.

J U D G M E N T

The plaintiff in a suit for prohibitory injunction against trespass, is the appellant. The suit, though decreed by the trial court, was dismissed in appeal. 2. The suit as it originally filed was one for recovery of possession of plaint 'A' schedule property, with a prayer for prohibitory injunction with regard to plaint 'B' schedule property. The reliefs claimed regarding 'A' schedule property was subsequently given up. The suit as it stands is only for a prohibitory injunction with regard to the plaint 'B' schedule property.

3. The plaintiff claims possession of the property under Ext.A1 partition deed. The property of the defendant is on the western side of the plaintiff's property. The suit is filed on the allegation of attempted trespass.

4. The defendants contended that the plaint schedule property is described as situated in Sy. No.33/1 and that the plaintiff does not have any right or possession over the said property. There was an earlier suit as OS 16/1985 filed by the plaintiff for the very same relief which was dismissed for default. It was contended that the attempt of the plaintiff is to grab a portion of the defendant's property.

5. The suit was originally dismissed by the trial court. The first appellate court set aside the decree and remanded the matter back to the trial court for fresh disposal. Thereafter, a commissioner's report and plan were obtained. The trial court referred to the boundaries of the property as mentioned in the title deed and in the Commissioner's Plan and accordingly granted a decree. The appellate court held that possession of the property has not been proved and accordingly interfered with the decree of the trial court. It is thereupon that the Regular Second Appeal is filed.

6. Heard learned Senior Counsel Sri.A.Sudhi Vasudevan on behalf of the appellant-plaintiff and Sri.Salil Narayanan K.A., learned counsel appearing on behalf of the contesting respondents on the following substantial question of law:-

“Did the Courts fail to consider the issue of possession of the plaintiff over the plaint schedule property in the suit for prohibitory injunction against trespass ?”

7. Though the description of the plaint 'B'

schedule includes Sy. No.33/1, admittedly the said survey number does not find a place in the document of title of the plaintiff. Contention of the plaintiff is that the non-inclusion of the said survey number is a mistake and going by the boundaries mentioned in the title deed, they have right and possession over the plaint 'B' schedule property. Noticeably the dispute involved is regarding the western boundary of the plaint 'B' schedule. It is on the western side of the plaintiff's property that the admitted property of the defendant is situated.

8. The suit being one for injunction simplicitor, the plaint 'B' schedule property must be identifiable on the spot, and the plaintiff must be in possession of the same. Unless both the above are found, there could not be a decree for prohibitory injunction. Though the trial court granted a decree for injunction, it appears that it was solely based on the commissioner's report and plan. Whether the property is identifiable at the spot was not considered. This is of significance since, the defendant cannot be called upon to obey a decree for prohibitory injunction against trespass solely based on a plan. The allegation of trespass, if any after decree, will have to be considered with reference to any physical boundary available. So unless the property lies specifically demarcated or is identifiable at the spot, there could not be a decree for prohibitory injunction.

9. That apart, the suit being one for injunction simplicitor, what is relevant is possession of the property. In the trial court judgment, apart from a mere sentence that the evidence of PWs.1 and 2 would go to show that the plaintiff is in possession of the plaint 'B' schedule property, there is absolutely no discussion with regard to the evidence. The first appell