A permanent injunction cannot be granted based on assumptions of trespassing when evidence indicates the existence of an established passage at the inception of the suit, and such injunctions are unsustainable absent a prayer for declaration or recovery of possession.

JUDGMENT

The defendants in a suit for injunction have come up in the present appeal aggrieved by the concurrent findings rendered against them. The plaintiffs filed O.S.No.92/2001 seeking decree of injunction against the defendants restraining them from trespassing into the plaint schedule properties and converting any portion of the same for a pathway and from doing any illegal acts thereby affecting the right, title, possession, and enjoyment of the plaint schedule properties. According to the plaintiffs, plaint A, B and C schedule properties belong to them covered by different sale deeds. It is alleged that the defendants are having a property on the eastern side of the plaintiffs’ properties and the defendants have no right or authority to create a pathway through the properties of the plaintiffs. Apprehending that the defendants may cut open a new pathway through the properties of the plaintiffs, the plaintiffs instituted the suit.

2. The defendants filed a written statement specifically asserting the fact that there exists a Nadavarambu starting from either side of Iranimuttom – Kalladimugham road and that it was widened to a motorable road, which is having a length of 85 metres and a width of 1 metre and which is a public pathway being used by other persons also. In the written statement, the defendants also asserted that they would never declare that they will cut open a pathway through the plaint schedule properties. It was also mentioned that the pathway in question was being used by several other persons whose details were mentioned in paragraph 6 of the written statement.

3. At the inception of the suit, an ex parte commission was ordered, who visited the property on 05.04.2001 and filed a report. One among the points presented before the Advocate Commissioner for identification was whether the plaint schedule properties lie at a lower level than the newly formed road on the western side and the bund on the eastern side. The Advocate Commissioner, on inspection, found that the pathway was covered with red soil and it appears to be recently formed. But, however, the Advocate Commissioner clearly found that the plain schedule properties lie at a lower level than the newly formed road on the west and the level difference is seen to be 8 feet. The plaintiffs did not seek any further incorporation in the plaint after the report of the Advocate Commissioner. Therefore, it has to be presumed that the apprehension of the plaintiffs was against the formation of any new road or attempt to widen the existing pathway in question.

4. On behalf of the plaintiffs, Exts.A1 to A4 documents were marked and on behalf of the defendants, Ext.B1 document was marked. Ext.C1 is the first commission report and Ext.C2 is the second commission report. Exts.C2(a) and C2(b) are the survey plan and litho plan. The 1^st plainti PW1 and DW1 to DW4 were examined on behalf of the defendants. The trial court, on appreciation of the oral and documentary evidence, came to the conclusion that, the plaintiffs are entitled to succeed inasmuch as the reports of the Advocate Commissioners show that, the pathway in question is a new one and therefore, the trial court pursued that, since the Advocate Commissioner had visited the property on 05.04.2001 and the suit was instituted on 11.01.2001, the inference that is possible is that the pathway must have been formed after the institution of the suit and accordingly, decreed the suit as prayed for. Aggrieved, the defendants preferred A.S.No.21/2005 before the Principal Sub Court, Thiruvanathapuram and by jud