IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 SA.No. 725 of 1995() -------------------- AS.55/1994 of PRINCIPAL DISTRICT COURT, THALASSERY OS.694/1992 of ADDITIONAL MUNSIFF COURT, KANNUR .................... APPELLANT(S)/RESPONDENT/PLAINTIFF: -------------- PUTHIYADAVAN PUTHIYAVEETTIL KUNHIKANNAN NAMBIAR, S/O.DEVAKI AMMA, AGED 63 YEARS, RETIRED MILITARY MAN, RESIDING AT PRADEEP NIVAS, CHELERI AMSOM DESOM.P.O.,CHELERI. BY ADV. SRI.T.A.RAMADASAN SRI.A.K.ALEX SRI.CIBI THOMAS RESPONDENT(S)/APPELLANTS/DEFENDANTS.: --------------- 1. MATTATHIL VAROONON JANAKI AMMA, D/O.KALLIANI AMMA, AGED 53 YEARS, KOLATHIMCHAL HOUSE, CHELERI AMSOM AND DESOM, CHELERI P.O. 2. MOHANAN, S/O.-DO- RESIDING -DO- 3. RAMANI, RESIDING -DO- 4. KAMALAKSHI, RESIDING -DO- ADV. SRI.M.RAMESH CHANDER SRI.V.RAMKUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.725 of 1995 -------------------------------------- Dated this the 18th day of September, 2009. JUDGMENT Following substantial questions of law are framed in this Second Appeal brought from judgment and decree of learned District Judge, Thalassery in A.S.No.55 of 1994 arising from judgment and decree of learned Additional Munsiff, Kannur O.S.No.694 of 1992: i. Whether in a suit for fixation of boundary is the appellate court justified in dismissing the suit on the ground that there is a well defined boundary when the case of the appellant is that is not the real boundary? ii. Whether the lower appellate court was correct in law in stating that the court cannot do any act to work out equity to be parties in a suit for fixing the boundary? iii. Where it is found that defendant claims to be in possession of more area than his entitlement and where plaintiff's area is lesser than his entitlement as per the case of the defendant was the appellate court correct in stating that the remedy is a suit for recovery of possession. iv. Whether the court below has considered correctly the documents showing possession? SA No.725/1995 2 2. Plaintiff who lost his case in the first appellate court is before me. He sued for a decree for fixation of boundary and for prohibitory injunction. He claimed that plaint schedule property with its remaining portion originally belonging to himself, respondents and others as per Ext.A12, partition deed No.261 of 1969 and in that partition, 1.13 acres was allotted to the share of the respondents as item No.I of B schedule of Ext.A12. Remaining portion was allotted to the appellant and others who entered into Ext.A1, partition deed No.1614 of 1981. 1.38 acres including the suit property was allotted to the appellant as item No.II in the B schedule of Ext.A1. Out of the said 1.38 acres, appellant gifted 3 ½ cents to the respondents as per Ext.A2, gift deed No.2141 of 1981. According to the appellant, the remaining property in the said 1.38 acres is the suit property. Property of respondents on the south lies contiguous with the suit property. Alleging that respondents removed the survey stones which formed boundary of the property of appellant, he sued for the reliefs first above stated. Respondents contested the suit contending that they got 1.13 acres as per Ext.A12 and another 3 ½ cents as per Ext.A2. Thus, 1.16 ½ acres belong to them in RS.6/2 excluding the burial ground on the south- western corner of that property. Total area of item No.IV in A schedule in Ext.A12 allotted to the appellant and others is only 1.35 acres and it is the said 1.35 acres which appellant got as per Ext.A1, partition deed. It is not correct to say that appellant was allotted 1.38 acres. They denied that they had removed the boundary stones. Learned Munsiff found that boundary of the suit property is to be fixed along OP line in Ext.C2 and accordingly, decree was granted. SA No.725/1995 3 Learned District Judge found after consideration of the documents relied on by either side that though extent of the property allotted to the appellant is stated in Exts.A12 and A1 as 1.38 acres, kole measurements given in the said documents revealed that appellant and others did not get that much extent of property. Learned District Judge also found that going by the evidence and Exts.C1 and C2 there is at present a well defined mud ridge along ABCD line in Ext.C2 which formed physical boundary of the property and that if OP line in Ext.C2 is to be taken as boundary line it would mean that 2.5 cents allegedly belonging to the appellant is in the actual possession of respondents. Learned District Judge observed that in the above circumstances without declaring title over disputed portion and seeking recovery appellant cannot seek fixation of boundary. Since physical boundary between the properties as seen at the spot is ABCD in Ext.C2, the mud ridge, learned District Judge held that it is not necessary to fix the boundary, accordingly set aside judgment and decree of the trial court and dismissed the suit. It is contended by learned counsel for appellant that first appellate court was not correct in interfering with the judgment and decree of the trial court. Further contention is that it is within the power of the court to grant equitable relief even if a portion of the property is found to be in the possession of the respondents. 3. The suit as framed is only for fixation of boundary and prohibitory injunction on the premises that the plaint schedule property including the disputed portion belong to and is in the possession of appellant. So far as the disputed portion, ie. 2.5 cents beyond OP line in Ext.C2 is concerned, SA No.725/1995 4 respondents do not admit title or possession of the appellant. Learned District Judge has referred to the relevant title deeds and found that there appeared to be difference in extent in the property allotted to the appellant and others as per Ext.A12 and following that, in Ext.A1. Learned District Judge has also come to the definite conclusion that going by Ext.C2, the disputed property having an extent of 2.5 cents is in the possession of the respondents, it is beyond OP line in Ext.C2 along which line learned Munsiff fixed the boundary of the property. The findings that the disputed portion of the property is in the possession of respondents and that there is difference in the extent of property allotted to the appellant as per Exts.A12 and A1 are based on evidence and hence this Court in Second Appeal cannot interfere with it as it is not shown that the said findings are perverse. Question is whether when a portion of the property regarding which the fixation of boundary is prayed for is found to be in the possession of the respondents, court could grant a decree for fixation of boundary and injunction. 4. No doubt a suit for fixation of boundary is maintainable. That is because it is a suit of civil nature as defined in Section 9 of the Code of Civil Procedure. Fixation of boundary does not involve any other dispute regarding title or possession. It is when the parties have no other dispute regarding title or possession but, they are unable to agree on the boundary between the properties that question of fixation of boundary would arise. This Court in Bapputty @ Sydali v. Cheriakutty @ Veerankhani Rawther (1990 (1) KLJ 218) in paragraph No.6 has referred to the issue and stated thus: SA No.725/1995 5 “I fail to understand how the courts below thought of a tentative fixation of boundaries liable to be varied later. The suit ought to have been dismissed by the courts below atleast on the ground that necessary parties are not in the array. Even otherwise, such a suit is not maintainable without a cause of action. So also, fixation of boundaries in such a suit could only be after settling various other disputes as to title and possession put forward by the appellants. Fixation of boundary cannot be a short cut to over reach such contentions. Fixing boundaries and then directing the parties to settle their disputes including the correctness of the boundaries elsewhere is not a decision at all.” (emphasis supplied) I am in agreement with the law as above stated. Court cannot fix the boundary and then direct the parties to settle other disputes regarding title and possession. Appellant cannot get boundary of the property fixed when title of the disputed portion is in dispute, it is not settled and the disputed property is found to be in the possession of respondents. Appellant cannot in the circumstances maintain a simple suit for fixation of boundary and prohibitory injunction even on equitable grounds. The proper course open to the appellant was to seek declaration of title, recovery of possession and such other reliefs including fixation of boundary as he may otherwise be entitled. Learned District Judge has made it clear that dismissal of the suit will not affect the right of the appellant to seek appropriate reliefs based on title. SA No.725/1995 6 Answering the substantial question of law framed above in the above lines, this Second Appeal is dismissed without prejudice to the right if any of the appellant to establish his title and seek appropriate reliefs regarding the disputed property if the appellant is otherwise entitled to that course. Parties shall suffer their cost in this appeal. C.M.P.No.1786 of 1995 will stand dismissed. THOMAS P.JOSEPH, Judge. cks SA No.725/1995 7 Thomas P.Joseph, J. S.A.No.725 of 1995 JUDGMENT 18th September, 2009.