The plaintiff in O.S.No.288/2009 on the file of the Munsiff Court, Aluva is the appellant. He filed the suit for a perpetual injunction restraining the respondent from trespassing into the plaint schedule property, which allegedly is in his possession and enjoyment. 2. The appellant claims to have obtained the property from his father. The eastern property belongs to the first respondent, who is the appellant's first cousin. The first respondent contended that the appellant does not have title to the entire extent of the plaint schedule property and a part of it belongs to himself and some strangers to the suit. The learned Munsiff found that the plaint schedule property lies within well defined boundaries and the appellant is entitled to the injunction prayed for. In the appeal the learned Additional District Judge took the view that the trial court did not give an opportunity to the respondent to produce a document and the appellant did not take any steps to get the property measured and identified on the basis of his title deed. He set aside the judgment and the decree of the trial court and remanded the case. This is challenged in this appeal.
3. Heard.
4. The suit was for perpetual injunction only. It is based on possession. The only contention of the first respondent (the second respondent was removed from the party array in the trial court) was that a part of the plaint A schedule property does not belong to him. There is a bald statement that the appellant is not in possession of the plaint schedule property. There is an admission that at least a part of the plaint schedule property is in the possession of the appellant. It is not in dispute that in the building in the plaint schedule property the appellant resides with his family. It is also not in dispute that there is a way separating the properties of the appellant and the respondents. Ext.C1 commission report clearly proves that the plaint schedule property lies within well defined boundaries. Admission of possession of a part of the property amounts to admission of the entire extent of property unless a part of it lies separate from the remaining part. In this case there is foolproof evidence to show that the entire plaint schedule property lies within well defined boundaries. The evidence given by the appellant as PW1 also proves his possession of the plaint schedule property. The first respondent did not adduce evidence.
5. The learned Additional District Judge did not understand the nature of the case he was dealing with. Title to the property was not at all relevant. The document sought to be produced by the first respondent was not at all relevant. The direction issued by the learned Judge to measure the property on the basis of the title deed and survey plan is unwarranted. The lower court rightly came to the conclusion that the appellant is entitled to the perpetual injunction prayed for. If the first respondent has a case that the appellant is in possession of a portion of the property which belongs to him, his (the first respondent's) remedy is to file a suit for recovery of possession. The order of remand is illegal.
In the result, this appeal is allowed. The impugned order is set aside and the decree of the trial court is restored. No costs.
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K. ABRAHAM MATHEW JUDGE //True copy// P.A. TO JUDGE shg/