Perpetual injunction cannot be granted without clear identification of disputed property.

JUDGMENT

This appeal is at the instance of the defendants in O.S. No. 816 of

2008 on the files of the Principal Munsiff Court, Ernakulam, a suit for fixation of boundary and a mandatory and prohibitory injunction directing the defendants to remove the construction made by them.

2. The brief facts necessary for the disposal of the appeal are as follows:

2.1. The plaintiff claimed the right, title and possession of 15 cents of land in Sy. No. 95/1 of Maradu Village as per settlement deed No. 296/1975. The 1^st defendant also derived the right by virtue of ‘C ‘Schedule to the said settlement deed. It is alleged that the 1^st defendant on 06.06.2008 had encroached upon the ‘B’ schedule property and made some constructions. Hence, the suit. Subsequently, the plaint was amended by incorporating a plea for the mandatory injunction to remove the obstruction caused. It is alleged that the obstruction was made by the 1^st defendant during the pendency of an order of injunction and at a time when the suit was dismissed for default and before the plaintiff could restore the same.

2.2. The defendants entered appearance and contested the case contending that the 1^st defendant never obstructed the entry of the plaintiff into the plaint schedule property. It was contended that the description of the property is also incorrect. In fact, it was contended that the encroachment was done by a third party and that third party was not made as a defendant in the suit.

2.3. On behalf of plaintiff, Exts.A1 to A5 documents were produced and Pw1 to Pw3 were examined. On behalf of the defendants, Exts. B1 to B12 were produced and DW1 was examined. There were 7 reports of the Advocate Commissioner and Exts.C1 to C7 series marked are the reports and the sketches prepared by the Advocate Commissioner with the assistance of the Surveyor. Ext.X1 is produced and marked through PW3.

2.4. The Trial Court finding that the earlier commission reports were flawed, set aside the reports and remitted back the reports for fresh consideration by the Advocate Commissioner, who later filed Ext.C7 report and Exts.C7(a) sketch. Based on Ext.C7(a) sketch, the Trial Court decreed the suit. Aggrieved, the defendants preferred A.S. No.124/12 before the Addl. District Court – V, Ernakulam, which was also dismissed and hence, the appeal raising the following substantial questions of law:

When the defendant disputed the “1.

identity of the plaint schedule properties are the courts below justified in granting a decree of perpetual injunction without identifying the properties?

2. Are the courts below justified in decreeing the suit when it is evident from the plan that encroachment into the pathway has been done by a 3^rd party, who is not a party to the suit nor the plaintiff has taken any steps for bringing him into the array of party?

3. Are the courts below justified in decrying the suit when it has not been proved that defendants have encroached upon the property or B schedule pathway?”

4. Heard Sri. George Mathew, the learned counsel appearing for the appellants and Sri. T. T. Harikumar, the learned counsel appearing for the respondent.

5. The learned counsel for the appellants submitted that the findings rendered by the courts below are perverse and rendered on the basis of the flawed report of the Advocate Commissioner. Either the Surveyor or the Advocate Commissioner were examined to prove the contents of Ext.C7 report and C7(a) plan. Even the description of property in Exts.C7 and C7(a) are wrong. The Commissioner was required to specifically identify the survey line separating the property in Sy. Nos. 96/4 and 95/1. A reading of the report would show that the Com