Possession is essential for claiming title in property disputes; absence of possession negates the right to seek injunction.

J U D G M E N T

The plaintiff in a suit for permanent prohibitory injunction is the appellant. The plaint A schedule property originally belong to one M.P.Balakrishnan, who was assigned with the property as per proceedings in L.A No.107/1985 dated 28.07.1987. Later a patta was granted to him on 29.02.1988 and thereafter M.P.Balakrishnan was in possession of the property. On 23.07.1991, the plaintiff purchased the property from M.P.Balakrishnan as per document No.1542/1991. On 12.02.1995, when the defendants residing near the suit property tried to trespass into the A schedule property, the plaintiff and his family members objected and resisted them. Hence the suit. The defendants entered appearance and contested the suit contending that the plaint schedule property cannot be identified and that the plaintiff is not in possession of the property. It is further contended that the property allotted to the assignor of the plaintiff Shri.M.P.Balakrishnan, was cancelled in a proceedings initiated by the 1^st defendant’s mother Kunhamma before the Revenue Divisional Officer, Kasaragod. In the said proceedings the plaintiff got himself impleaded. Later through a series of proceedings before the revenue authorities, ultimately the cancellation of patta was affirmed and thus the plaintiff was divested of the possession of the plaint schedule property. On behalf of the plaintiff, Exts.A1 to A9 documents were produced and PW1 was examined. On behalf of the defendants, Exts.B1 to B8 documents were produced and DW1 was examined. Exts.C1 to C3 are the reports and the plan of the Advocate Commissioner. Ext.X1 is the survey sketch.

2. The trial court on appreciation of oral and documentary evidence came to the conclusion that the plaintiff is not in possession of the plaint schedule property and accordingly dismissed the suit. Aggrieved, the plaintiff preferred A.S No.183/2003 before the Additional District Court (Ad Hoc-I), Kasaragod, and by judgment dated 25.02.2011, the same was dismissed.

Hence, the present appeal.

3. On 02.11.2015, this Court issued notice on the substantial questions of law framed in the memorandum of appeal, which reads as under:-

A. Has not the Lower Appellate Court Committed an error of law in holding that in the absence of a final order on Exts.A1 and A2, the plaintiff cannot claim title under Ext.A3.

B. Is not the title obtained under Ext.A1 and A2 evidence of title, until it is set aside.

C. Is not the title under Exts.A1 to A3 a better title as against the defendants especially when the defendants have not set up any title in themselves.

D. Is not the sale deed, Ext.A9, executed by the defendants, pending suit, a substantive evidence against their contentions in the suit.

E. In the facts and circumstances of the case are the decisions of the Courts below sustainable.

4. Heard K.Jayesh Mohankumar, the learned counsel appearing for the appellant and Shri.P.B.Subramanyan, the learned counsel appearing for the respondents.

5. The learned counsel for the appellant contended that the findings of the courts below are perverse and requires to be interfered with. He submitted that the proceedings initiated against his predecessor in interest is the subject matter of challenge in W.P.(C) No.6117/2014 and therefore the courts below were not justified in concluding that the title in favour of the predecessor in interest was cancelled by the revenue authority. It is further pointed out that going by Ext.A8 order, the title of the plaintiff is proved and therefore the courts below ought not have dismissed the suit.

6. Per contra, Shir.P.B.Subramanyan, the learned counsel for the respondents supported the findings of the courts below and contended that since the pro