(1.) The appellants are the plaintiffs whose suit for injunction to restrain the defendants from trespassing and taking forcible possession of the suit properties has been dismissed by both the courts below.
(2.) They claim right to the suit properties as successors of Kesava Kurup who was said to be the last surviving member of a branch to whom the properties had been allotted in tarwad partition. The defendants contended that the said deed was not one of partition but was only a maintenance allotment and as such the plaintiffs have not inherited the properties and are not entitled to any injunction as prayed for in the suit. The plaintiffs having applied for a temporary injunction along with the institution of the suit, a written objection thereto has been filed by the defendants in which they maintained that the plaintiffs had no right to be in possession of the suit properties and that by their possession they have only been trespassers thereon and could not therefore claim an injunction. This is an admission that the plaintiffs are in physical possession of the suit properties.
(3.) The learned Munsiff has however non suited the plaintiffs, the reason being: If the 1st defendant (karnavan) has allowed the plaintiffs to take the income, it is not possession sufficient to maintain a suit for injunction. Even granting that the plaintiffs have some sort of possession, they have absolutely no right to be in possession and their possession, if any, is wrongful possession. One seeking an injunction against trespassers on land must be not only in actual possession but also entitled to the possession. A trespasser is not entitled to claim that his possession must be maintained and protected by an injunction order. The plaintiffs cannot advance any right to possession. They have not even a bona fide claim. This is a suit filed in collusion with the 1st defendant as an attempt to establish some sort of right for the plaintiffs in the plaint properties. The plaintiffs are not entitled to the injunction prayed for.