A suit for injunction can be maintained without a declaration of title, if the plaintiff proves possession, although identity of the property must be established.

JUDGMENT

In a suit for injunction, the 1st appellant/plaintiff has been non-suited concurrently by the Courts below. The 1^st appellant/plaintiff instituted the suit for injunction against his own sister stating that an attempt was made by the sister to destroy the paddy cultivation carried out by the plaintiff over the plaint schedule property which consists of 60 cents in Sy. No. 1016, 21 cents in Sy. No. 1017 and 35 cents in Sy. No. 1013, totalling to 1 Acre 16 cents situated in Paramanchalla in Valiyavallampathy village in Chittur Taluk, Palakkad district.

1.1. The plaintiff traced out his possession from one Subbayya Pillai under whom he claims that he had taken possession 48 years ago. The respondent/defendant on the other hand disputed the identity of the property and contended that the property over which the plaintiff was claiming right belonged to their father Chinna Naicken who took it under a verum pattam lease and later he executed a Will in her favour and thus she is in exclusive possession of the property.

1.2. An Advocate Commissioner was appointed from the Munsiff Court, Chittur, at the time of moving of the suit. Before inspecting the property, the Advocate Commissioner had attempted to serve a notice of his inspection to the defendant who refused to accept the notice and, therefore, the Advocate Commissioner proceeded to identify the property based on the indication given by the plaintiff. Accordingly, the nature of damage which occurred to the crops were reported before the Courts below.

1.3. On behalf of the plaintiff, Exts. A1 to A12 series were produced and PW1 and PW2 were examined. On behalf of the defendant, Exts. B1 to B14 documents were produced and DW1 to DW3 were examined. Exts. X1 and X1(a) respectively are the receipt book and receipt from Ext. X1 receipt book from the Village Office.

1.4. Since there was a dispute regarding the valuation of the suit, the plaintiff sought amendment to the valuation portion of the suit and amended the valuation in terms of Section 27A of the Kerala Court Fees and Suits Valuation Act, 1959 . The amendment sought for by the plaintiff was allowed and the valuation of the suit was amended. In terms of the amended valuation, the plaintiff remitted Court Fee on the market value of the property. This prompted the Trial Court to frame an issue regarding the title of the plaintiff and went on to consider the question as to, whether the plaintiff was having any title over the property? Pertinently, the defendant also set up a rival title based on Ext. B1 Will.

1.5. On appreciation of the oral and documentary evidence, the Trial Court gave contradictory findings as regards the identity of the property, possession of the plaintiff over the plaint schedule property and the title. As regards the identity, the Trial Court found that the plaintiff could not prove the identity of the property but then proceeded to hold that the plaintiff has succeeded in proving the possession of the property and then went on to further hold that the plaintiff did not prove exclusive possession of the property based on his title. On the hand, the claim of the defendant for an exclusive title over the property based on Ext. B1 Will was also rejected. Based on these cumulative findings, the Trial Court dismissed the suit.

1.6. Aggrieved by the judgment of the Trial Court dismissing the suit, the plaintiff carried the matter before the Addl. District Court, Palakkad in A.S. No. 284 of 2009. At the first appellate stage, the defendant also tried to raise the validity of Ext. B1 Will without filing a separate Cross Objection. The First Appellate Court rejected the claim of the plaintiff concurring with the findings of the Trial Court and ref