Equitable relief in injunctions is contingent on the claimant not having encroached upon the property of another.

JUDGMENT

This appeal arises from the Judgment and decree dated 6.10.2010 of the Additional District Court-I, Mavelikkara, by which the decree granted in favour of the plaintiff in O.S. No 220 of 1998 by the Munsiff Court, Haripad, was reversed, and the suit was dismissed.

2. O.S. No.220 of 1998 was filed by the plaintiff seeking an injunction restraining the defendants from removing the barbed wire fence existing on the western side of the plaint A and B Schedule properties. The averments in the plaint show that the plaintiff owns plaint A schedule property exclusively and B Schedule property with the defendant. Pursuant to the transfer of the property in her favour, it is contended that a barbed wire fence on the western boundary of A schedule property was put up. Since there was an attempt by the defendants to remove the same, the suit was filed.

3. The defendants resisted the suit by contending that the extent of A schedule property was only 1 cent and the B Schedule property was 860 Sq.mts. The first defendant had assigned the A schedule property absolutely to the plaintiff and half right over the B Schedule property to the plaintiff. The husband of the plaintiff pushed fence stones of the western boundary over 1 feet towards the west by encroaching on the portions of the property of the defendants and laid the fence there. Therefore, the plaintiff, being a trespasser, is not entitled to get any relief from the court.

4. The trial court, on appreciation of evidence, found that the plaintiff is entitled to the decree of injunction. Aggrieved, the defendants preferred A.S. No.10 of 2004 before the Additional District Court-I, Mavelikkara.

5. The first appellate court found that since the plaintiff has admittedly encroached on a portion of defendants’ property, she is not entitled to equitable relief in the form of an injunction and accordingly reversed the judgment of the trial court, and the suit was dismissed. Hence the present appeal.

6. Heard Sri. S. Vinod Bhat, the learned Counsel for the appellant and Sri. Saijo Hassan, the learned counsel appearing for the respondents.

7. This appeal was lying on the files of this Court without admission.

When the appeal was taken up for consideration on 17-11-2025 the learned counsel for the respondents pointed out that a connected appeal, R.S.A.

No.1244 of 2009 is pending, and accordingly, the same was tagged along with this appeal and heard together. By a separate judgment rendered today, this Court has dismissed the said appeal. Though the parties are the same, the facts in both the appeals being different, separate judgments are rendered by this Court.

8. On consideration of the rival submissions raised across the bar, this Court finds that no substantial questions of law arise for consideration in this appeal. Though the learned Counsel for the appellant raised a contention, relying on the decision of the Supreme Court in A. Subramanian and Another Vs R. Paneerselvam [ (2021) 3 SCC 675], that since admittedly the plaintiff was found to be in possession of the portion of the B Schedule property, she was entitled to a decree of injunction and that the first appellate court was not justified in dismissing the suit by allowing the appeal filed by the defendants, this Court is not persuaded to accept the said argument. It is trite law that the grant of an injunction is within the discretion of the court and an equitable remedy. It has come out in evidence and is an admitted fact that the plaintiff has encroached upon the property of the defendants. Therefore, this Court is of the view that the trial court ought not have decreed the suit.

9. Still further, it is to be noted that during the pendency of the R.S.A. No.1244 of 2009, the matt