IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 542 of 1994(F)
1. P.K.CHERIAN
... Petitioner
Vs
1. KORATH ABRAHAM
... Respondent
For Petitioner :DR.P.S.KRISHNA PILLAI
For Respondent :SRI.M.R.RAJENDRAN NAIR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :05/09/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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S.A .NO.542 OF 1994
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Dated 5th September 2007
J U D G M E N T
Plaintiff in O.S.168 of 1984 on the file of
Munsiff court, Haripad is the appellant. Defendants 1
to 4 are respondents 1 to 40. On the death of first
respondent, respondents 6 to 9, his legal heirs and on
the death of second respondent, respondents 10 to 13
his legal heirs were impleaded before the first
appellate court. During the pendency of the appeal
third respondent died. As his shares were purchased
by 5th respondent, his legal heirs were not impleaded.
On the death of 5th respondent, respondents 14 to 19
were impleaded as legal heirs. Appellant instituted
the suit seeking a decree for fixation of boundary and
for injunction. Plaint schedule properties along with
the remaining properties originally belonged to
Edichandy Koruthu and his wife Eleyamma. Under Ext.A1
partition deed properties were divided. Executant No.4
is the appellant. First respondent was executant
No.1. Second respondent was executant No.3 and
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executant No.2 was Koruthu Varghese, father third
respondent. Under Ext.A1 properties allotted to
appellant as item No.4, comprises two items in survey
No.2609.A/1 having an extent of 12< cents and 2= cents
in survey No.2611. Said properties are plaint schedule
properties. Appellant instituted suit contending that
because of close relationship no fence was fixed
separating properties allotted to the sharers under
Ext.A1 and subsequently respondents joined together and
attempted to reduce portion of the properties of the
appellant to their possession and they have no right to
do so and even though appellant tried to get the
property measured and boundaries fixed it was objected
to on the ground that resurvey proceedings are pending.
Appellant also contended that in resurvey proceedings
portions of the properties of appellant are being
included in the property of his brothers and he filed
appeal before resurvey Assistant Director and it is
pending. Appellant therefore sought a decree for
fixation of boundaries of his property and also a
perpetual injunction restraining respondents from
trespassing into the property. Defendants filed
separate written statement contending that appellant did
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not obtain possession of the property allotted to him
under Ext.A1 and they are in possession of the property
and there is no necessity to fix the boundaries and
therefore suit is to be dismissed. Fifth respondent in
his written statement contended that he is a
kudikidappukaran and as per order of Land Tribunal he
is in possession of 8 cents and appellant has no right
over the said property and therefore suit is to be
dismissed.
2. Learned Munsiff appointed PW3 as Commissioner. He submitted Exts.C1(a) report and C1(b) plan. Appellant filed objection contending that
Commissioner has not measured the property in accordance
with Ext.A1 partition deed and therefore they are to be
set aside. Trial court remitted the report back to
Commissioner. Commissioner submitted Ex.C2 report and C2
(a) plan. Learned Munsiff on the evidence of Pws.1 to 3,
DW1, Exts.A1 and A2, B1 to B9 and C1 to C2(a), dismissed
the suit holding that appellant is not entitled to the
decree, as he failed to establish his possession of
property and report of Commissioner shows that property
is in the possession of others. Appellant challenged
decree and judgment before Additional District court,
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Mavelikara in A.S.57 of 1988. Learned Additional
District Judge on re-appreciation of evidence confirmed
the findings of learned Munsiff and dismissed appeal. It
is challenged in second appeal.
3. Second appeal was admitted formulating
following substantial questions of law.
1) In the light of the
contentions put forward by the
parties and in the light of the
materials on record, are the courts
below justified in proceeding to
decide upon the issues involved in
the case without calling for a plan
in respect of the plaint items
prepared on the basis of the
description of properties in Ext.A1
partition deed with the help of the
original plan?
2) On the facts and
circumstances of the case and in the
light of the observations made by the
courts below, are they justified in
rejecting the plaint claim without
granting liberty to plaintiff to file
a fresh suit for declaring his title
and possession over the plaint items
as also for recovery of possession?
4. Learned counsel appearing for appellant and
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respondents were heard.
5. Argument of learned counsel appearing for
appellant is that as suit is for fixation of boundary,
without proper identification of the property suit
should not have been decided by courts below. It was
argued that though Ext.C1(a) report and Ext.C1(b) plan
were remitted back to Commissioner, Commissioner did not
identify property with reference to Ext.A1 partition
deed and instead followed earlier plan prepared on the
basis of resurvey plan and in such circumstances, courts
below should not have dismissed the suit. Learned
counsel also argued that in any case liberty is to be
granted to appellant to get the property identified and
seek a declaration of his title and recovery of
possession. It was argued that possession of defendants
during the pendency of suit cannot operate as adverse
possession. Learned counsel appearing for respondents
pointed out that report of Commissioner establish that
portion of property claimed by appellant is not in the
possession of appellant and still plaint was not got
amended and courts below found that as appellant is not
in possession of the property he is not entitled to get
fixation of boundary and the appeal is only to be
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dismissed.
5. True, when suit is filed for fixation of
boundary, suit is to be decided only after proper
identification of the properties with reference to
title deeds. The grievance of the appellant was that
Commissioner did not identify the property with
reference to Ext.A1 partition deed and old plan and
instead identified the property with reference to the
possession and that too on the basis of resurvey plan
which was objected to by plaintiffs. Ordinarily, when
such suit was decided by courts below without proper
identification property it should have been interfered.
But in the nature of facts and circumstances of this
case, I do not find that it is necessary.
6. When a suit is filed for fixation of
boundary, if portion of the plaint schedule property is
found to be in the possession of others, no decree for
fixation of boundary could be granted without seeking a
decree for recovery of possession of that portion of
property. By putting up boundary on fixation, a
plaintiff cannot recover possession of the property from
the possession of the defendants, without seeking a
decree for recovery of possession. Suit was framed only
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for fixation of boundary and for injunction. In such
circumstances, substantial question of law as formulated
are not involved. In the facts and circumstances of the
case especially when the property was not identified
with reference to Ext.A1 partition deed and old plan,
interest of justice warrants that appellant is to be
granted liberty to file fresh suit for seeking a
declaration of title as well as for fixation of boundary
and for recovery of possession of the property. It is
made clear that recovery of possession could only be
subject to the plea of adverse possession available to
respondents.
7. In the result, second appeal is dismissed.
Appellant is at liberty to file fresh suit for declaring
his title and recovery of possession and fixation of
boundary. It is made clear that question of adverse
possession is left open to be decided in that suit.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.
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M.SASIDHARAN NAMBIAR,J.
JUDGMENT
S.A.NO.542 OF 1994
5th September 2007
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