In a suit for injunction, a clear title can suffice for relief without a declaration if the opposing party fails to substantiate their claims, allowing the rightful possessor to seek protection against interference.

JUDGMENT :

P. VADAMALAI, J.

This Second Appeal is preferred against the judgment and decree, dated 02.11.2017 passed in A.S.No.28 of 2015 on the file of the Sub Court, Padmanabhapuram, confirming the judgment and decree, dated 30.01.2015 passed in O.S.No.90 of 2012 on the file of Additional District Munsif Court, Padmanabhapuram.

2. The appellant is the 1st defendant and the respondents are the plaintiff and 2^nd defendant in O.S.No.90 of 2012 on the file of the Additional District Munsif Court, Padmanabhapuram. The 1^st respondent/plaintiff filed the suit for permanent injunction and mandatory injunction directing the defendants to remove the newly erected eight stone pillars and newly put up barbed wire fence existing within the suit property on its western side.

3. For the sake of convenience, the parties are referred to as plaintiff and defendants as in O.S.No.90 of 2012 on the file of the Additional District Munsif Court, Padmanabhapuram.

4. Case of the plaintiff:

The suit property is six cents in R.S.No.371/9 situated in Alinchicode of Vilavancode Taluk. The suit property absolutely belongs to the plaintiff, who purchased the same by virtue of a registered sale deed, dated 07.12.1994. He has been in valid title and possession of the suit property by paying land tax periodically. The 1^st defendant purchased one property, which lies further west of the suit property. In between the suit property and the defendant’s property, there is a well defined mud kassala boundary fence on the western side of the suit property. The defendants have no right over the said mud kassala boundary fence, as well as further east of the said fence. While the facts being so, with malafide intention, the defendants attempted to trespass into the suit property and encroach on the western portion of the suit property and the same was prevented by the plaintiff. Again, on 07.03.2012, the defendants made an attempt to do so. Hence, the plaintiff preferred a police complaint and then filed the suit for permanent injunction against the defendants. Pending suit, on 16.04.2013, the defendants erected eight stone pillars within the suit property on its western portion towards north to south and put up a barbed wire fence. Therefore, the plaint was amended and mandatory injunction was sought against the defendants to remove the pillars and fence. Hence, the suit.

5. Case of the Defendants

The suit property does not belong to the plaintiff. The sale deed refers to R.S.No.371/14 and not R.S.No.371/9. The plaintiff and his vendor were in possession of property in R.S.No.371/14, the survey number 371/9 was mentioned in the sale deed out of ignorance. The suit property is in possession of the 1^st defendant in continuation of his father, Appavu Nadar. R.S.No.371/9 is bounded by old compound wall. The property comprised in R.S.No.371/9 and the remaining portion of R.S.No.371 originally belonged to the defendant’s ancestor, Samuel. On his death, his sons Appavu Nadar, Muthuswami and Chellakkannu inherited the property. The property was partitioned as per the possession of the parties. The suit property was allotted to the defendants. In the said partition deed Re survey number was wrongly mentioned. The boundary is between R.S.No.371/14 and the suit property on the southern side of R.S.No.371/9 and not on the western side. The defendants never made any attempt to demolish the boundary. The plaintiff is not entitled 6 cents. As per the plaintiff’s document, his vendor was entitled to only 1/3 share in the suit survey number. The plaintiff is not entitled to any portion west of the western barbed wire f