Second Appeal No. 986 of 2001

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **MONDAY ,THE 18TH DAY OF FEBRUARY 2019 / 29TH MAGHA, 1940** ## **SA.No. 986 of 2001** **AGAINST THE JUDGMENT/DECREE IN AS 153/1990 of SUB COURT, TIRUR DATED 30-09-2000** **AGAINST THE JUDGMENT/DECREE IN OS 134/1985 of MUNSIFF MAGISTRATE COURT,PONNANI DATED 30-11-1990** ## **APPELLANT/L.Rs OF 2ND PLAINTIFF:** |**1**|**JANAKI**| |---|---| ||**D/O.LATE APPUNNI,MUTHUR AMSOM, MELMURI DESOM, PONNANI**| ||**TALUK.**| |**2**|**THANKAMMU,**| ||**D/O.LATE APPUNNI,MUTHUR AMSOM, MELMURI DESOM, PONNANI**| ||**TALUK.**| |**3**|**MANI,**| ||**D/O.LATE APPUNNI,MUTHUR AMSOM, MELMURI DESOM, PONNANI**| ||**TALUK.**| |**4**|**GANGA,**| ||**D/O.LATE APPUNNI,MUTHUR AMSOM, MELMURI DESOM, PONNANI**| ||**TALUK.**| |**5**|**CHANDRAMATHI,**| ||**D/O.LATE APPUNNI,MUTHUR AMSOM, MELMURI DESOM, PONNANI**| ||**TALUK.**| |**6**|**PADMAVATHI,**| ||**D/O.LATE APPUNNI,MUTHUR AMSOM, MELMURI DESOM, PONNANI**| ||**TALUK.**| |**7**|**DASAN,**| ||**S/O.LATE APPUNNI,MUTHUR AMSOM, MELMURI DESOM, PONNANI**| ||**TALUK.**| |**8**|**DEVAYANI,**| ||**W/O.LATE KRISHNAN ALIAS BALAN,,MUTHUR AMSOM, MELMURI**| ||**DESOM, PONNANI TALUK.**| |**9**|**SUNITHA,**| SA.No. 986 of 2001 2 **D/O.LATE KRISHNAN ALIAS BALAN,,MUTHUR AMSOM, MELMURI DESOM, PONNANI TALUK.** - **10 SUCHITHRA, D/O.LATE KRISHNAN ALIAS BALAN,,MUTHUR AMSOM, MELMURI DESOM, PONNANI TALUK.** - **11 SUCHITHA, D/O.LATE KRISHNAN ALIAS BALAN,,MUTHUR AMSOM, MELMURI DESOM, PONNANI TALUK.** - **BY ADV. SRI.T.KRISHNAN UNNI (SR.)** ## **RESPONDENTS/DEFENDANT AND 1ST PLAINTIFF:** - **1 ARUMUGHAN** - **S/O.MANHAKKATTU KORU,,MUTHUR AMSOM, MELMURI DESOM, PONNANI TALUK.** - ***2 MANHAKKATTU THUPRAN ALIAS KUMARAN, (DELETED) S/O.MAKKA,MUTHUR AMSOM, MELMURI DESOM, PONNANI TALUK.** - **NAME OF THE 2ND RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER ORDER DATED 24.06.2003 IN I.A 212/03.** ## **BY ADV. SRI.K.M.SATHYANATHA MENON** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** SA.No. 986 of 2001 3 ## **JUDGMENT** The legal representatives of the deceased second plaintiff in a suit for injunction are the appellants in the second appeal. The case set out by the plaintiffs in the plaint is that the plaintiffs own the plaint schedule property measuring 1 acre and 69 cents as obtained by them in terms of Exts.A1, A2 and A3 assignment deeds and they are in possession of the same. It is alleged by the plaintiffs in the plaint that the defendant who owns properties on the north of the plaint schedule property is attempting to trespass into a portion of the plaint schedule property and cut and remove the bamboos standing therein. The prayer in the suit, in the circumstances, was for a decree of permanent prohibitory injunction restraining the defendant from trespassing into the plaint schedule property and cutting and removing the bamboos in the plaint schedule property. The defendant contested the suit, SA.No. 986 of 2001 4 contending that he has not trespassed into any portion of the property of the plaintiffs and that he is in possession of only the property covered by the title deed in his favour. In the course of proceedings, an Advocate Commissioner was appointed for conducting a local inspection, and the Advocate Commissioner filed Ext.C3 plan and Ext.C4 report. The trial court found that the plaintiffs have not established the identity of the properties covered by Exts.A1, A2 and A3 assignment deeds, which are collectively shown in the plaint schedule, and consequently, dismissed the suit. Though the plaintiffs took up the matter in appeal, the appellate Court affirmed the decision of the trial court and dismissed the appeal. The legal representatives of the deceased second plaintiff are aggrieved by the decisions of the courts below. 2. Heard the learned counsel for the appellants as also the learned counsel for the respondent. 3. The learned counsel for the appellants submitted that if the non identification of the suit property in a suit of the instant nature is not SA.No. 986 of 2001 5 attributable to the plaintiffs, the courts have a duty to afford the plaintiffs an opportunity to identify the suit property or otherwise, the plaintiffs would be put to irreparable injury and loss for reasons not attributable to them. According to the learned counsel, in so far as it is found by the courts below that the Advocate Commissioner appointed in the suit has not properly identified the suit property based on the title deeds of the plaintiffs, the appellate court ought to have remitted the suit for fresh disposal after affording the plaintiffs another opportunity to establish the identity of the suit property. 4. Per contra, the learned counsel for the respondent, placing reliance on the decision of the Apex Court in **Jharkhand State Housing Board** v. **Didar Singh & Another** [CDJ 2018 SC 1148], submitted that in a case of this nature, the plaintiffs should have prayed for a declaration of their title over the disputed property also, and in the absence of such a prayer in the suit, the suit is not maintainable. 5. Having heard the learned counsel for the parties on either side, the following substantial SA.No. 986 of 2001 6 question of law is formulated for decision in the second appeal : “Was the appellate court obliged in law to remit the suit for fresh consideration in the light of the finding rendered by it that the Commissioner appointed in the suit has not identified the suit property?” A suit for injunction has to be decided based on possession. A finding as to the possession of the property has to be rendered by the court with reference to an identified property. In other words, in a suit for injunction, it is obligatory for the plaintiffs to establish the identity of the property, if the identity of the property is disputed by the defendant. In the case on hand, though the defendant admits that the plaintiffs have obtained properties in terms of the documents relied on by them, he disputed the identity of the property described in the plaint, contending that a portion of the property over which the plaintiffs claim right is part of the property covered by his title deed. As noted, though the plaintiffs took out a Commission to establish the identity of the property covered by Exts. SA.No. 986 of 2001 7 A1 to A3 documents, the Advocate Commissioner has not located and identified the property correctly. In so far as the defendant admits that the plaintiffs acquired properties in terms of the documents relied on by them and in so far as the dispute is only as regards a portion of the property, according to me, the court below ought to have remitted the suit for fresh disposal after affording the plaintiffs an opportunity of hearing. The main reason for me to take this view is that the plaintiffs cannot be found fault with for the failure on the part of the Advocate Commissioner in identifying the suit property properly. I take this view also for the reason that in so far as the defendant admits that the plaintiffs have acquired properties in terms of the documents relied on by them, the dismissal of the suit may cause irreparable injury to the plaintiffs as the decisions in the suit are likely to be interpreted as decisions holding that the plaintiffs are not in possession of the properties covered by the title deeds. The Apex Court in **Jharkhand State Housing Board** _(supra)_ has held that a mere suit for injunction does not lie where the defendant raises a genuine dispute with regard to title SA.No. 986 of 2001 8 and where the defendant raises a cloud over the title of the plaintiff. The said judgment may not apply to the facts of this case, where both sides do not dispute the title of the opposite side covered by their respective title deeds and the dispute is only as to the identity. The question is answered accordingly in favour of the appellants. In the result, the impugned decisions of the courts below are set aside and the suit O.S No.134 of 1985 on the files of the Munsiff - Magistrate Court, Ponani is remitted to the trial court for fresh disposal after affording the additional plaintiffs another opportunity to establish the identify of the suit property. This being a suit of the year 1985, the same shall be disposed of as expeditiously as possible. **Sd/-** **P.B.SURESH KUMAR** ## **JUDGE** Mn