JUDGMENT : EASWARAN S., J. 1. The appeal arises out of the judgment and decree in O.S.No.170/1992 on the files of Munsiff Court, Koyilandy as confirmed in AS No.21/2011 by the Subordinate Court, Koyilandy. 2. Brief facts necessary for the disposal of the appeal are as follows: O.S.No.170/1992 was filed for permanent prohibitory injunction restraining the defendents from trespassing into the plaint schedule properties. Plaintiffs claimed that they derived the right title and interest over the plaint schedule properties by virtue of a partition deed 1464/1949. The suit property is a coconut garden and the northern portion is a rocky area measuring about 50 cents. The southern portion of the property of the defendants is also a rocky area and defendants started blasting rocks from their property and made an attempt to encroach into the rocky area belonged to the plaintiffs on 30.6.1992. Apprehending further action, the suit was filed. The defendants contested the suit contending that the predecessor of the plaintiffs had no right in title and interest over the property. The schedule attached to the plaint is not in confirmity with the description of the property shown in item No.7 in the partition deed of 1949. The scheduled attached to I.A No.894/1992 is filed for temporay injunction was also shown differently with ulterior motive. In the schedule, apart from measurement shown as 25 x 75 kole another measurement is shown as 15x85 ½ kole and there is no mention in the plaint regarding the devolution of right title and interest regarding Chandappan or the plaintiffs in respect of the excess property shown by the measurement as 15x85 ½ kole. The plaintiffs are required to prove the title over item No.7 in the partition deed. An additional written statement was also filed contending that the defendants have got properties comprised in re-survey No.73/1, 25/3A and 25/3B. 3. On behalf of plaintiffs Exts.A1 to A16 were produced and PWs 1 to 4 were examined. Exts.B1 to B4 series were produced on behalf of defendants. Exts.C1 to C7 are the reports and plans of the Advocate Commissioner along with surveyor's plans. Ext. X1 is the file related to loan No.6438 of Koyilandi Service Co-operative Bank. Initially the suit was dismissed against the plaintiffs and thereafter they preferred appeal wherein the first appellate court set aside the judgment and decree and remanded the suit for fresh consideration. Ext. X1 is the file related to loan No.6438 of Koyilandi Service Co-operative Bank. Initially the suit was dismissed against the plaintiffs and thereafter they preferred appeal wherein the first appellate court set aside the judgment and decree and remanded the suit for fresh consideration. On remand, yet another Advocate Commissioner was appointed for measuring the plaint scheduled property. Exts.C8 to C11 are the Commissioners' reports and Surveyor's plans. The trial court after remand found that on consideration of Ext.C8 plan and Ext. C10 report, there were inconsistent statements and that it is not possible to identify the plaint schedule property with reference to the report and therefore declined reliefs to the plaintiffs. While doing so, the trial court also went into the question of title of the plaintiffs and found that going by the documents produced along with Ext.X1 file, the property having a measurement of 15x85 ½ kole does find place in schedule to the document, and therefore, held that the plaintiffs does not have any right over the extent and accordingly the suit was dismissed. Aggrieved the plaintiffs preferred AS No.21/2011 . The first appellate court also concurred with the findings of the trial court and going by Ext.A1 document itself it is not possible to conclude that the plaint schedule property is comprised in two plots and therefore dismissed the appeal. Aggrieved, the present appeal is filed raising the following substantial questions of law. “A) Whether the courts below right are in law in giving importance to survey numbers of the property in the matter of identifying the suit property instead of adopting the correct rule of relying on extent and boundary descriptions? B) Were not the courts below in error in adjudging the issue regarding identity of the suit property? Is not such adverse conclusion a result of perverse appreciation of the evidence on record? C) When fraud had been committed in the court and opposite parties by the respondents in the matter vindicating their cause, is it proper for the courts below to deal with such situation in a casual manner?” 4. Heard Sri.V.V.Asokan the learned counsel for the appellants assisted by Smt.Uthara Asokan and Sri.R.Parthasarathy the learned counsel appearing for the respondents. 5. C) When fraud had been committed in the court and opposite parties by the respondents in the matter vindicating their cause, is it proper for the courts below to deal with such situation in a casual manner?” 4. Heard Sri.V.V.Asokan the learned counsel for the appellants assisted by Smt.Uthara Asokan and Sri.R.Parthasarathy the learned counsel appearing for the respondents. 5. Sri.V.V.Asokan, the learned senior counsel appearing on behalf of the appellants submitted that the findings rendered by the courts below as regards the title of the appellants over item No.7 in Ext.A1, partition deed is per se unsustainable and vitiated by perverse consideration. According to the learned counsel, a fraud is played by the defendants as regards the extent of property included in Ext.A1. When the title of the plaintiffs over item No.2 having a measurement of 15x85½ kole was denied by defendants the original documents were summoned from the Koyilandi Service Co-operative Bank where a mortgage was created in respect of the properties. When Ext.X1 files were summoned, the document by which the mortgage was created shows that only item No.1 property having a measurement of 25x75 kole whereas item No.2 having a measurement of 15x85 ½ kole was conspicuously absent. This was the prime reason why the courts below concluded that the plaintiffs do not have the title over the property. Whereas the original title deeds as well as the prior title deeds showed the existence of item No. 2 having a measurement of 15x85½ kole. It is further contended that in a suit for injunction simpliciter, a roving enquiry as regards the title of the plaintiffs was not at all permissible and that if there was any doubt as regards the entitlement of the plaintiffs over the plaint schedule properties, the plaintiffs ought to have been granted an opportunity to seek appropriate reliefs in a properly constituted suit. Still further, the plaintiffs had questioned the measurement taken by the Advocate Commissioner and despite finding that Ext.C10 report is riddled with several infirmities, the trial court chose to accept the same without remitting this report back to the Commissioner for fresh examination. 6. Per contra, Sri.R.Parthasarathy, the learned counsel for the 1 st respondent resisted the contentions of the learned Senior counsel and contended that in a suit for injunction, it is the requirement of law that the plaintiff has to prove the possession. 6. Per contra, Sri.R.Parthasarathy, the learned counsel for the 1 st respondent resisted the contentions of the learned Senior counsel and contended that in a suit for injunction, it is the requirement of law that the plaintiff has to prove the possession. The plaintiffs not only failed to prove the possession but also failed to prove the true identity of the property and that is the reason why the trial court as well as the first appellate court declined to accept the plea of the plaintiffs. Still further, going by the report of the Advocate Commissioner, though the property covered by item No.7 of Ext.A1 having a measurement of 15x85 ½ kole was identified, the plaintiff did not choose to implead the persons, who are in possession of the property. The plaintiffs ought to have amended the plaint and sought appropriate relief against the persons, who are in possession of the balance extent of property. Therefore, according to the learned counsel, the concurrent findings of the courts below does not require any interference by this Court, in exercise of the power under Section 100 of the Code of Civil Procedure , 1908. 7. I have considered the rival submissions raised across the Bar and I have perused the judgments rendered by the courts below. 8. On a consideration of the rival submissions raised across the Bar, this Court is of the considered view that both the courts erred egregiously in declining the reliefs sought for in the suit. The extent of property in possession of the plaintiffs are not disputed. But then, as regards item No.2, having a measurement of 15x85½ kole a serious issue has cropped up, because of the stand taken by the defendants as regards their identity as well as the title of the appellants. Perhaps, swayed by the aforesaid contention, the courts below went into the laborious process of identifying item No.7 in Ext.A1 deed. Once the Advocate Commissioner was unable to identify the property, the trial court appears to have strangely accepted the plea of the defendants that there is no possibility of the existence of item No.2 within item No.7 in Ext.A2 having a measurement of 15x85 ½ kole not withstanding the fact that such exercise ought not have been undertaken in a suit for injunction simpliciter. 9. 9. Though the trial court initially dismissed the suit, the Sub Court had remanded the suit back for a fresh consideration and after remand, a fresh Commission was appointed. Plaintiffs seriously resisted the findings rendered by the Advocate Commissioner and raised objection, which was not accepted by the trial court despite a clear finding that the report and plan are riddled with several infirmities. Thus, this Court is of the considered view that the report of the Advocate Commissioner and the plan could not have been relied on by the courts below to enter into a conclusion against the plaintiffs. Equally so, this Court cannot subscribe to the findings of the courts below as regards the title of the plaintiffs. Without undertaking an elaborate exercise of ascertaining as to how item No.2 having a measurement of 15x85 ½ kole was erased from original document and annexed along with Ext.X1 file, the trial court under no circumstances could have concluded that since the document annexed along with Ext.X1 file did not contain property with measurement 15x85 ½ kole, the plaintiffs did not have a title over the same. Certainly miscarriage of justice has occurred at the hands of both the courts below. Once the certified copy of the document was made available along with the prior deed, which evidenced the existence of item No.2 having a measurement of 15x85 ½ kole within item No.7 the schedule to Ext.A1, the trial court could not have rendered a contrary findings based on the records produced by the Koyilandy Service Co-operative Bank. 10. Be that as it may, even if the findings of the courts below regarding the title of the plaintiffs qua item No.2 within item No.7 of Ext.A1 is vacated by this Court, still, in order to succeed, the plaintiffs must necessarily establish the identity of the property as well as possession. Unfortunately, with the material evidence on record, one cannot safely conclude that the plaintiffs have established the identity of item No.2 within item No.7 of Ext.A1 having a measurement of 15 x 85½ kole. The inability of the plaintiffs to properly establish the identity or possession was perhaps compounded by the fact that the Advocate Commissioner failed in his duty to properly identify the property and that despite objections, the report was accepted by the courts below. The inability of the plaintiffs to properly establish the identity or possession was perhaps compounded by the fact that the Advocate Commissioner failed in his duty to properly identify the property and that despite objections, the report was accepted by the courts below. Therefore, ideally the suit should necessarily re-gain the attention of the trial court for a fresh consideration. But since the defendants are stoutly denying the title of the plaintiff over item No.2 within item No. 7 of Ext.A1 document having a measurement of 15x85 ½ kole, and even if this Court accept the plea of the plaintiff for a remand, substantial reliefs touching upon the title of the plaintiff still remains in the present suit, therefore the plaintiffs cannot succeed. Faced with the situation, the learned senior counsel, Sri.V.V.Asokan, appearing on behalf of the appellants requested this Court that a permission be granted to the plaintiffs to institute a comprehensive suit on title enabling the plaintiffs to take out such evidence to identify the property covered by item No.2 within item No.7 of Ext.A1 partition deed, having a measurement of 15x85 ½ kole and if, found necessary, include the relief of recovery of possession. 11. Though the learned counsel for the 1 st respondent vehemently opposed such plea, in the nature of findings rendered by the trial court, wherein a report, riddled with infirmities was accepted, thereby disabling the plaintiffs from effectively proving the true identity of item No.2 having a measurement of 15x85 ½ kole and also an unwarranted finding as regards the lack of title based on the original document annexed along with Ext.X1 file, this Court is inclined to grant the permission as sought for by the appellants. Accordingly, answering the questions of law framed in the appeal in favour of the appellants, this Court holds that the courts below went wrong in holding that the plaintiffs has not proved the true identity of the property and that the plaintiffs do not have a title over item No.2 within item No.7 of Ext.A1 partition deed within item No.7 having a measurement of 15x85 ½ kole. 12. Resultantly, this appeal is allowed vacating all findings rendered in O.S.No.170/1992 as confirmed in AS No. 21/2011 touching upon the title of the plaintiffs regarding item having a measurement of 15x85 ½ kole of the plaint schedule property. 12. Resultantly, this appeal is allowed vacating all findings rendered in O.S.No.170/1992 as confirmed in AS No. 21/2011 touching upon the title of the plaintiffs regarding item having a measurement of 15x85 ½ kole of the plaint schedule property. The plaintiffs are given liberty to institute a fresh suit on title. The findings rendered by the courts below as regards the identity of item having a measurement of 15x85 ½ kole of the plaint schedule is confirmed, subject to the plaintiffs establishing its true identity through due process of law. On the plaintiffs succeeding in establishing the identity, they will also be entitled for the consequences flowing out of such establishment of right. In such event, it would be open to the plaintiffs to seek appropriate relief for recovery based on the possession at the hands of third persons. The period which the appellants had spent for prosecuting these proceedings, will not be counted, if the suit is instituted as per the liberty granted by this Court within a period of three months from the date of receipt of copy of this judgment. 13. The judgment and decree imposing cost on the appellants as affirmed by the first appellate court is vacated. The parties are directed to suffer respective cost of these proceedings. Ordered accordingly.