A party seeking an injunction must establish title and prove possession; mere reliance on external reports is insufficient.

JUDGMENT

The defendant in a suit for injunction has come up in the present appeal, aggrieved by the reversal of the dismissal of the suit, O.S. No.143 of 1998, by the first appellate court on an appeal preferred by the plaintiff.

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

The respondent/plaintiff instituted the suit, O.S. No.143 of

1993, before the Munsiff Magistrate Court, Mannarkkad, contending that the defendant was attempting to trespass into the plaint schedule property. The defendant resisted the suit and contended that the plaintiff is not entitled to the relief sought for. The defendant further contended that there is a pond which exists in the plaint schedule property as item No.2, and that the plaintiff has no right or possession over the same. On an elaborate trial of the issue, the trial court found that the plaintiff, who claims to be in possession of 2 Acres 94.300 cents in Survey No.33/1, 37/8, 37/9 and 37/17, has not established that the possession includes the entire plaint schedule property as such. The trial court further found that, going by Exts.A4 and A5 series land revenue receipts, the plaintiff has got only 2.80 Acres of land, out of which he had surrendered 4.299 cents to the Panchayath road. On appreciation of the evidence, the trial court concluded that the plaintiff is not entitled for injunction as prayed for. On appeal, the first appellate court found that the disputed property is in possession of the appellant based on Ext.C1 report of the Advocate Commissioner. To upset the finding of the trial court, the appellate court relied on the findings in Ext.C1 report stating that when the Advocate Commissioner visited the property, he could find a barbed wire fence on the southern side of the disputed plot, and the existence of the barbed wire fence is not disputed by the respondent. Though a plea was raised by the respondent that the barbed wire fence was put up by him for protecting the agricultural operations from the wild animals, the first appellate court concluded that the existence of the barbed wire fence would show that the plaintiff is in possession of the property and, accordingly, decreed the suit restraining the respondent/defendant from trespassing into the plaint schedule property and hence the present appeal.

3. On 23.2.2012, this Court framed the following substantial questions of law in the appeal.

(i) Whether the lower appellate court is justified in decreeing the suit without framing an issue on the title of the plaint schedule property, when the suit is built up on the title by the plaintiff?

(ii)Whether the lower appellate court is justified in decreeing the suit on the ground that the defendant failed to establish his case, without the plaintiff proving his case?

(iii)Whether the lower appellate court is justified in decreeing the suit, after finding that the public has got right over the property, without directing the plaintiff to take steps under Order I Rule 8 of the C.P.C?

(iv)Whether the lower appellate court is justified in not framing an issue as to whether the suit is bad for mis-joinder of necessary parties?

(v)Whether the court below was right in not considering the material evidence?

4. Heard Sri.Joggy Mathunni, the learned counsel appearing for the appellant and Sri.Deepak B., the learned counsel appearing for the respondent.

5. The learned counsel appearing for the appellant contended that the finding of the first appellate court that the plaintiff is in possession of the plaint schedule property merely o