1. The defendant in a suit for injunction has come up in the present appeal, aggrieved by the reversal of the dismissal of the suit, O.S. No.143 of 1998, by the first appellate court on an appeal preferred by the plaintiff.

2. The brief facts necessary for the disposal of this appeal are as follows:

                  The respondent/plaintiff instituted the suit, O.S. No.143 of 1993, before the Munsiff Magistrate Court, Mannarkkad, contending that the defendant was attempting to trespass into the plaint schedule property. The defendant resisted the suit and contended that the plaintiff is not entitled to the relief sought for. The defendant further contended that there is a pond which exists in the plaint schedule property as item No.2, and that the plaintiff has no right or possession over the same. On an elaborate trial of the issue, the trial court found that the plaintiff, who claims to be in possession of 2 Acres 94.300 cents in Survey No.33/1, 37/8, 37/9 and 37/17, has not established that the possession includes the entire plaint schedule property as such. The trial court further found that, going by Exts.A4 and A5 series land revenue receipts, the plaintiff has got only 2.80 Acres of land, out of which he had surrendered 4.299 cents to the Panchayath road. On appreciation of the evidence, the trial court concluded that the plaintiff is not entitled for injunction as prayed for. On appeal, the first appellate court found that the disputed property is in possession of the appellant based on Ext.C1 report of the Advocate Commissioner. To upset the finding of the trial court, the appellate court relied on the findings in Ext.C1 report stating that when the Advocate Commissioner visited the property, he could find a barbed wire fence on the southern side of the disputed plot, and the existence of the barbed wire fence is not disputed by the respondent. Though a plea was raised by the respondent that the barbed wire fence was put up by him for protecting the agricultural operations from the wild animals, the first appellate court concluded that the existence of the barbed wire fence would show that the plaintiff is in possession of the property and, accordingly, decreed the suit restraining the respondent/defendant from trespassing into the plaint schedule property and hence the present appeal.

3. On 23.2.2012, this Court framed the following substantial questions of law in the appeal.

                  (i) Whether the lower appellate court is justified in decreeing the suit without framing an issue on the title of the plaint schedule property, when the suit is built up on the title by the plaintiff?

                  (ii) Whether the lower appellate court is justified in decreeing the suit on the ground that the defendant failed to establish his case, without the plaintiff proving his case?

                  (iii) Whether the lower appellate court is justified in decreeing the suit, after finding that the public has got right over the property, without directing the plaintiff to take steps under Order I Rule 8 of the C.P.C?

                  (iv) Whether the lower appellate court is justified in not framing an issue as to whether the suit is bad for mis-joinder of necessary parties?

                  (v) Whether the court below was right in not considering the material evidence?

4. Heard Sri.Joggy Mathunni, the learned counsel appearing for the appellant and Sri.Deepak B., the learned counsel appearing for the respondent.

5. The learned counsel appearing for the appellant contended that the finding of the first appellate court that the plaintiff is in possession of the plaint schedule property merely on the report of the Advocate Commissioner cannot be accepted. Since the plaintiff failed to prove the title over the property, it was totally erroneous on the part of the first appellate court to have reversed the findings of the trial court. At any rate, the suit was not for a declaration of title but for an injunction simpliciter. The possession based on the report of the Advocate Commissioner alone could not have formed the basis of the judgment of the first appellate court. That apart, it is pointed out that, even going by the report of the Advocate Commissioner, there is no absolute finding with regard to the possession of the plaintiff.

6. Per contra, the learned counsel appearing for the respondent/plaintiff supported the findings of the first appellate court and submitted that the trial court had perversely rejected the evidence adduced by the parties. When the existence of the barbed wire fence is proved and admitted by the plaintiff, necessarily, the suit ought to have been decreed by the trial court, and thus the first appellate court committed no error in decreeing the suit.

7. I have considered the rival submissions raised across the bar, perused the judgments of the courts below and the records of the case.

8. The first appellate court reversed the judgment of the trial court only on the basis of the findings rendered by the Advocate Commissioner in Ext.C1. Paragraph Nos.13 and 14 of the judgment of the Sub Court, Ottapalam, in A.S. No.12 of 2006 read as under:

                  13. Now, we can find whether there is any other evidence to suggest that as on the date of the suit, the disputed property was in the possession of the appellant. The appellant is placing reliance upon the observation made by the Commissioner in Ext.C1 report to prove that as on the date of the suit, he was in possession of the property.

                  14. For the purpose of Ext.C1 report, the Commissioner inspected the property on the date of the suit ie, on 3-8- 98. In Ext.C1 report, the Commissioner would say that when he visited the property, he could find a barbed wire fence on the southern side of the disputed plot. The Commissioner has marked the barbed wire fence in Ext.C2 sketch also. The existence of the barbed wire fence is not disputed by the respondent. The explanation given by the respondent is that he put up the barbed wire fence leaving a pathway outside to go to the pond. He also would say that the barbed wire fence was constructed by him only to protect the agricultural crops in the property. The appellant would dispute the contention. It is important to note that the Commissioner has specifically stated in Ext.C1 report that he could not find any stile or gate put up on this barbed wire fence to enter into the disputed are from the property in the possession of the respondent. In my view, this observation speak very much against the case of the respondent that the narrow strip of land was kept by him outside the fence to take cattle to the pond. The Commissioner has also not stated that there were any sort of improvements in the property in the possession of the respondent which is likely to be destroyed by the cattle. Further, the Commissioner has noted that he could find a water channel formed from the south-eastern corner of the pond to the paddy fields of the appellant situated on the east. The respondent has no case that this water channel was formed by him. The Commissioner also could find entrance to the disputed area from the property admittedly in the possession of the appellant. The Commissioner has further stated that he could find coconut trees and bamboo clusters in the property suggesting exercising of possession over the property by the appellant. The respondent has no case that those bamboo clusters or coconut trees were planted by him.

9. Turning to the report of the Advocate Commissioner, one could easily decipher the findings therein. On a cursory glance at paragraph No.5 of the report of the Advocate Commissioner, it is seen that the Advocate Commissioner has not stated that the plaintiff is in possession of the property situated on the other side of the barbed wire fence. On the contrary, it is stated that the barbed wire fence was erected by the defendant about 12 years ago, which fact stands admitted by the plaintiff, who was present at the time of inspection. But then, the age of the barbed wire fence was under dispute. But, the fact remains that the Advocate Commissioner has clearly recorded his finding in paragraph No.5 by stating that the plaintiff had admitted that the defendant had put up a barbed wire fence in the property.

10. Though the said plea was taken note of by the first appellate court, the same was not given any importance because the first appellate court felt that once the barbed wire fence was in existence, it probablises the case of possession of the plaintiff. In the nature of the dispute involved in the present case, especially touching upon the dispute as regards the boundary, it was impermissible for the first appellate court to have reversed the findings of the trial court and to find that the plaintiff is in possession. It is trite law that where there exists a boundary dispute between the parties, the simple suit for injunction is not the remedy.

11. Resultantly, this Court is inclined to answer the substantial questions of law as follows:

                  1. The first appellate court was not justified in decreeing the suit without framing an issue on the title of the plaintiff.

                  2. The first appellate court went wrong in decreeing the suit on the ground that the defendant failed to establish his case without requiring the plaintiff to prove the case.

12. In the light of the answers given to the substantial questions of law as above, the rest of the substantial questions of law are found to be unnecessary. Accordingly, the appeal is allowed by reversing the judgment and decree in A.S. No.12 of 2006 on the files of the Sub Court, Ottapalam, by restoring the judgment and decree in O.S. No.143 of 1998 on the files of the Munsiff Magistrate Court, Mannarkkad. However, the dismissal of the suit will not preclude either party from asserting their right over the property in a properly instituted suit for declaration of title or fixation of boundary, if so advised.