SHABANDRI REAL ESTATE LTD Vs. SHAIK ABDUL SAMAD

JUDGEMENT

(1.) This Second Appeal is filed by the plaintiff in O.S.No.442/ 1995 on the file of the Munsiff's Court, Kozhikode, as he is aggrieved by the judgment and decree dated 5.9.2000 of the lower appellate court (Court of Sub Judge, Kozhikode) in A.S.No.112/ 1998, whereby the judgment and decree granted by the trial court in his favour have been set aside. The suit was filed for mandatory injunction and prohibitory injunction.

(2.) The case set up by the plaintiff broadly is as follows:-

(3.) The defendant resisted the pleas in the suit by filing a written statement, contending inter alia, that the suit is not maintainable. That the plaint A schedule property cannot be identified by the description in the plaint schedule and in the title deed (Ext.A-2) produced along with the plaint. He submitted that a commission should be deputed at the expense of the plaintiff so as to obtain proper plan, etc. That from Ext.A-2 deed what is discernible is that one Ismail, for 45 other persons had executed the deed in favour of an institution, wherein his son is the Execute Director. That the said deed was so created with ulterior motives. That the property referred to in B schedule of the plaint never belonged to and was not in the possession of the plaintiff or their predecessors. The place, where the transformer is now situated and the land east of the transformer, does not belong to the plaintiff. That the plaintiff and his predecessors have no right or possession over the said property. That the predecessor of the plaintiff had properties west of the drainage chal maintained by the Calicut Corporation. That the defendant has right and title over the property, which is situated east of the transformer and that he has already set up a bunk in that piece of land after duly getting plan and licence from the Calicut Corporation authorities. That he secured title for that piece of land, wherein a bunk has already been constructed even prior to the institution of the suit, on the basis of sale deed No.2223/1992 of Chalappuram SRO (Ext.B-1). That before the execution of the Ext.B-1 deed, the predecessors in interest of the defendant had surrendered a portion of their land thereon to the Corporation for formation of the P.M.Taj Road and that the balance portion of the land was conveyed to the defendant as per Ext.B-1 deed. That the land immediately to the east of the transformer covered by Ext.B-1 thus belongs to the defendant. That long before the filing of the instant suit on 11.7.1995 the defendant had already completed the construction of the bunk and had also started the conduct of his stationery trade and other allied trades in that bunk. That the defendant has never attempted to trespass into any land belonging to the plaintiff, etc.