Possession claims must be substantiated with evidence; prior suits impact eligibility for later claims, reinforcing procedural bars in civil litigation.

J U D G M E N T

The additional second plaintiff in a suit for prohibitory injunction against trespass is the appellant. The suit was dismissed concurrently by the courts. The additional second plaintiff is the assignee pendente lite from the original plaintiff.

2. The plaint schedule property has an extent of seven cents. The second defendant is the daughter of the plaintiff and the first defendant is the husband of the second defendant. Plaint schedule property originally belonged to one Meeran Rawther. He mortgaged to the property to one Kadeejammal. She died leaving behind her son Kochu Thampi Rawther as the sole legal heir. Under Ext.A1, he sub-mortgaged the property to the original plaintiff. The defendants are residing on the southern side of the plaint schedule property and are attempting to trespass into the property. It is on the said allegations that the suit was filed. The defendants claimed title and possession over the property under Ext.A5 Gift Deed executed in favour of the second defendant by the original plaintiff.

3. The trial court dismissed the suit. The plaintiff was unsuccessful before the first appellate court.

4. Heard learned counsel Sri.George Varghese Perumpallikuttiyil, on behalf of the appellant and Sri.K.Sasikumar on behalf of the respondents on the following substantial question of law :-

“In the light of Ext.A1 mortgage in favour of the plaintiff, were the courts right in having held that the plaintiff has failed to prove his possession over the plaint schedule property ?”

5. The plaint schedule property is described as the north-western most 7 cents out of a larger extent of 62.5 cents, in Sy. No.142/9/1 of Palamel village. The property obtained by the plaintiff under Ext.A1 mortgage also bears the same description viz. the north-western most 7 cents out of 62.5 cents. The original plaintiff had filed a suit as OS 211/91 against the present defendants and others in respect of the very same property. The suit was one for prohibitory injunction against trespass. The suit was dismissed as withdrawn. Ext.A4 is the decree. The description of the plaint schedule property therein is the very same as the plaint schedule viz. 7 cents, that is, the north-western most 7 cents out of the 62.5 cents. The first plaintiff had executed Ext.A5 Gift Deed in favour of his daughter - the second defendant. The property conveyed thereunder is the western most 7.5 cents out of the 62.5 cents. 6. In paragraph 2 of the plaint it was specifically pleaded that, the original plaintiff is residing in a shed situated in the plaint schedule property. The description of property covered under Ext.A5 specifically includes the shed. In the recitals to Ext.A5 it has been stated that the original plaintiff is entitled to reside in the shed situated in the property stated thereunder.

7. On the above, it admits of no doubt that the property covered under Ext.A1 mortgage and which is described in the plaint schedule, is the property covered under Ext.A5 Gift Deed executed by the original plaintiff in favour of the second defendant, his daughter. Ext.A5 Gift Deed specifically acknowledges measurement of the property, and the possession of the property by the second defendant. In the light thereof, the present claim that the plaintiff is in possession of the property under Ext.A1 could not be sustained.

8. The plaintiff has a case that the property covered under Ext.A1 and Ext.B5 are different properties. He relies on the boundary description of the properties. But, as noticed in the foregoing paragraphs, the said claim is without substance. The plaintiff could have very well taken out a commission and proved that the property covered under Exts.A1 and A5 are different properties. However, the same has not been attempted. The claim of the plaintiff that he is in possession of the plaint schedule property under Ext.A1 was rightly negatived by the courts. Substantial question of law is answered accordingly.

9. The present suit on the strengt