In a suit for permanent prohibitory injunction, the burden of proof lies on the plaintiffs to adequately identify the properties in question, which they failed to do.

JUDGMENT :

(M.A. ABDUL HAKHIM, J.)

1. The appellants are the plaintiffs in a suit for a permanent prohibitory injunction. They are siblings. The permanent prohibitory injunction was claimed with respect to plaint A schedule item No.1 and 2 properties. Plaint A schedule item No.1 has 54 cents, and Plaint B schedule item No.2 has 38 cents of land. As per plaint allegations, plaint A schedule item No.1 property is situated on the eastern side, and plaint A schedule item No.2 property is situated on the western side of the plaint B schedule property. The plaintiffs' father, Cheria, derived the plaint schedule property as per Ext A2 document of the year 1112 ME. The 1^st plaintiff is residing in the plaint A schedule property. The grandfather of the plaintiff, Ithak, had 1 Acre of 52 cents of land after excluding plaint schedule A property having 92 cents; the balance property having an extent of 60 cents, remained with the grandfather. The said 60 cents is plaint B schedule property. Plaint A and B schedule property are lying without any boundary. The plaintiffs also sought an injunction with respect to the right over the C schedule pathway on the ground that originally, there was a thondu at the place of plaint C schedule pathway. Later, the plaintiffs, as well as the defendants, contributed money and purchased property for forming C schedule as per Ext.A12 document. The plaintiffs further contended that though a suit for partition was filed as O.S. No.156/1991, the father of the plaintiffs could not properly conduct the case and preliminary decree was passed by the Trial Court on 13/07/1993 and thereafter final decree was passed on 27/09/1995. Though the Execution Petition was filed, it was dismissed, and the limitation period for filing a fresh Execution Petition is over. Now, the defendants are attempting to execute the decree by force, attempting to take possession of the plaint schedule properties from the plaintiffs.

2. The suit prayers were opposed by the defendants contending that as per the final decree, plot number 4, having an extent of 38 cents, was allotted to the father of the plaintiffs. The defendants subsequently assigned 16 cents of land to the plaintiffs. Thus, the plaintiff has 54 cents of land, which is included in plaint A schedule item No.1 property. The defendants are having right over 98 cents out of the total 1 Acre 52 cents belonging to the grand father excluding the said 54 cents. The plaint C schedule property was formed by purchasing land as per Ext. A12 document. Ext.A12 will reveal that the entire consideration was paid by the defendants.

3. The Trial Court dismissed the suit finding that the plaintiffs failed to identify the plaint schedule properties. The plaintiffs filed an Appeal before the First Appellate Court, and the same was dismissed, confirming the judgment and decree passed by the Trial Court .

4. I heard the appellants, Sri. P.M. Joshi, and the learned counsel for the respondents, Sri.K.J. Kuriachan and Sri. Sunil Jacob.

5. The learned counsel for the appellants contended that the title of the entire property is admitted by the defendants. The suit O.S. No.156/1991 was filed for partitioning the entire property. Admittedly, the defendants filed Ext.A19 Execution Petition to take delivery pursuant to the final decree passed in the said suit. The said Petition was dismissed and the limitation period for filing the fresh Execution Petition is also over. When they have filed Ext.A9 Execution Petition, the possession of plaint A schedule item No.1 & 2 properties by the plaintiffs is admitted by them. The learned counsel invited my attention to the Ext.A12 document in which the western boundary is shown as thondu, which would show that the said thondu was widened by utilizing the properties purchased as per Ext.A12 document. Hence the right of way over the plaint C schedule property could not be denied to them.

6. On the other hand, the learned counsel for the respondents contended that the Trial Co