IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 AS.No. 418 of 1999() ----------------------------- OS.1130/1994 of I ADDL.SUB COURT, THRISSUR .................... APPELLANT IN AS-PLAINTIFF IN SUIT: --------------------------------------------------------- DR. JAMES CHAKKOLA, S/O.CHAKKOLA ITTY MATHEW, MURINGOOR DESOM, MURINGOOR VADAKKUMMURI VILLAGE, MUKUNDAPURAM TALUK. BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE, ADV. SRI.P.B.KRISHNAN. RESPONDENTS IN AS-DEFENDANTS IN SUIT: ------------------------------------------------------------------ 1. MARY GEORGE, W/O.GEORGE ALDRINGTON, A77/764, M.I.G. COLONY, BANDRA, EAST BOMBAY-51. 2. GEORGE, S/O.PUTHUR ANTONY, PERAMANGALAM VILLAGE AND DESOM, THRISSUR TALUK. BY ADV. SRI.VARGHESE C.KURIAKOSE. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 28/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. AS.No. 418 of 1999 ORDER ON C.M.P. NO.3332/1999 IN A.S.418/1999 DISMISSED 28/05/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.N.KRISHNAN,J. ========================= A.S.No.418 OF 1999 ====================== Dated this the 28th day of May 2010. JUDGMENT This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Thrissur in O.S No.1130/1994. The suit is one for fixation of boundary and for injunction and the trial Court on appreciation of the materials dismissed the suit. It is against that decision, the plaintiff has come up in appeal. The appellant has also moved an application as IA No.59/2010 for issuing commission and I.A No.58/2010 for acceptance of the documents. They are also considered along with the appeal. 2. The brief facts necessary for dispose of the appeal are stated as follows:- It is the case of the plaintiff that he had purchased the property for a valid consideration under Ext.A1 document dated 15.6.94 and thereafter he is in possession and enjoyment of the property. It is also stated that the property A.S.No.418 OF 1999 2 originally belonged to his mother Mary and she had assigned portions of the property and the balance 20 cents which was in her possession had been assigned in favour of plaintiff and therefore the plaintiff is the person in possession of the property. The defendants do not have any title or interest over the property and therefore the plaintiff has filed the suit for measurement and fixation of boundaries and also for permanent prohibitory injunction. 3. On the other hand defendants would contend that the said Mary did not have any right over the property assigned at the time of Ext. A1, for the reason that, she had assigned all her properties and thereby Ext.A1 does not confer any title or possession of the plaint schedule property to the plaintiff and therefore the suit is misconceived and liable to be dismissed. It is necessary to understand the facts for arriving at a proper decision. At the out set I may like to point out that when the defendants had categorically denied title and possession of the plaintiff over the plaint schedule property a mere suit for fixation of A.S.No.418 OF 1999 3 boundary with a prayer of permanent prohibitory injunction will not lie. Unless and until it is admitted that there is neighbouring property with the plaintiff and there is a dispute with respect to the exact boundary in between them, a suit of this nature will not lie. Otherwise it may not be fair for a Court to arrive at a decision in such type of cases. Now, Mary, the mother of the plaintiff had obtained 68 and 3/8 cents of property by virtue of two documents Exts. B1 and B2. She had assigned 14 ½ cents of property to one Kochu Devassy by virtue of Ext.B5. She had again assigned 27 ½ cents and 6 and 3/8 cents to one Premi by Ext.B3 documents. She had assigned 10 cents of property to D1 by B6 and another 10 cents of property by document number Ext.B7. So, if the property assigned is taken by the extent shown in the documents the entire property obtained by Mary under Exts.B1 and B2 are sold away by virtue of Ext.B3 to B6, when the plaintiff is confronted with such a difficult situation, the learned counsel for the appellant would contend before me that it is not the extent alone A.S.No.418 OF 1999 4 that is shown in the documents governs the field and other parameters have also to be considered regarding the identification of the property. It is submitted that the property can be best identified by the boundaries shown in the document. There are decisions given by this Court to the effect that when there is a discrepancy between the extent and boundaries the boundaries will prevail. It is also equally cautioned that it is the duty of the Court in such cases to adopt the most infallible method to arrive at a correct decision. When the defendants contend that there was no inch of property left with the assignor at the time of Ext.A1, it was the primary duty on the plaintiff to establish before the Court by taking out a commission to identify property covered under Ext.B1 and B2, as well as by anterior documents of title and then identify properties sold to different persons and then establish that there is property left out after the assignment deeds. Unfortunately this crucial matter was not done by the plaintiff and considering the same the court below rightly refused to A.S.No.418 OF 1999 5 grant him any relief. Now the learned counsel for the appellant had moved an application to identify all the property and also to receive some documents, under Order 41 Rule 27 of Civil Procedure Code, acceptance of additional documents in evidence can be done when the party was not having possession of the document at the time of trial or for reasons beyond his control in spite of due diligence he was not able to produce it or for any other sufficient reason. Now when a suit of this nature is filed and the defence set up is regarding the very title of the plaintiff over the property, it was the fundamental duty of the plaintiff to be diligent in prosecuting the matter by taking appropriate steps in appropriate time. The prayer for reception of documents and issuance of commission can not be allowed at this stage. Since the plaintiff has not sought to get his title declared a prayer as requested in the suit cannot be granted. The materials available are not sufficient to grant a relief in favour of the plaintiff. The Court below has appreciated this matter in the correct A.S.No.418 OF 1999 6 perspective and disallowed the relief sought for by the plaintiff and it does not call for interference. But I make it very clear that, if law permits the plaintiff will not be precluded from filing a comprehensive suit before appropriate court for redressal of his grievances. It is also made clear that question of title is not gone in to. Appeal is dismissed with the above observation but without costs. M.N.KRISHNAN,JUDGE. mns