IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 13TH OCTOBER 2010 / 21ST ASWINA 1932 AS.No. 680 of 2000(E) -------------------------------- OS.220/1995 of SUB COURT,NEYYATTINKARA .................... APPELLANT(S): PLAINTIFFS 1 TO 8 --------------------------------------------------- 1. GOURI DEVAKI, AGED 69 YEARS, RESIDING AT KOCHUNADAKAVU VEEDU, MANATHITTA MURI, MUTTATHARA VILLAGE, FROM CHANAVILA VEEDU, AVADUTHURA DESOM, KOTTUKAL VILLAGE. 2. NARAYANAN CHITHAMBARAN, AGED 65 YEARS, RESIDING AT DO. DO. 3. NARAYANAN NAGAPPAN, AGED 63 YEARS OF DO. DO. 4. GOURI NAGAMMA, AGED 63 YEARS, DO. DO. 5. GOURI KOUSALLIA, AGED 59 YEARS, OF DO. DO. 6. NARAYANAN VELAPPAN, AGED 53 YEARS, OF DO. DO. 7. GOURI CHINTHAMONY, AGED 51 YEARS, OF DO.DO. 8. GOURI THANKAMONI, AGED 49 YEARS, OF DO. DO. BY ADV. SRI.L.MOHANAN RESPONDENT(S): DEFENDANTS ----------------------------------------------- 1. KOCHABDUL KHADER PILLAI ABUBACKER KUNJU, AGED ABOUT 50 YEARS, RESIDING AT THYKAVU PUTHEN VEEDU, KOVALATHU MELE AVADUTHURA DEOSM, KOTTUKAL VILLAGE. 2. SALEEM, AGED ABOUT 40, S/O. ABUBACKERKUNJU, FATHIMA MANZIL, KUNNATHUVILAKAM, THIRUVALLAM DESOM, DO. VILLAGE. R1 & R2 BY ADV. SRI.M.RAJASEKHARAN NAYAR, SMT.RAJANI.K.N., SMT.NITHYA.K., SMT.MANJUSHA MOHANDAS . THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 13/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 680 OF 2000 = = = = = = = = = = = = = = = Dated this the 13th day of October, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Neyyattinkara in O.S.220/95. The suit is one for an injunction and putting up of boundaries. It is the case of the plaintiff that he had obtained the plaint schedule property as per a registered partition deed of the year 1978. The defendants are having property on the eastern side of the plaint schedule property. There was a suit between the plaintiff and the first defendant as O.S.140/79 and in that case the Court has considered the case of the parties and as per the report of the Commissioner held that the plaintiff is entitled to the property shown as DEFGH and that there is A.S. 680 OF 2000 -2- an eastern boundary DEF. When the matter was put in execution it was found initially there was a “Kalladukku” and later it was found that there was a demarcating wall itself. So the Courts in execution of the decree found that since there is a clear demarcating wall on the line DEF separating the plaintiffs' property from the defendants' property no execution is necessary and therefore closed the case. That matter has attained finality. So the point is that the plaintiff as per the document of his title is entitled to have a property DEFGH and DEF is the eastern boundary of his property. Now the present suit is filed contending that the defendants have trespassed into the property and reduced it into their possession. The trial court on an analysis of the materials held that if there is a trespass the Court is competent to A.S. 680 OF 2000 -3- grant a decree if it is during the pendency of the suit to restore the plaintiff back into possession but ultimately holds that since there is no prayer for recovery of possession on the strength of title the suit is liable to be dismissed. When an application is filed for amendment of the plaint seeking a relief of recovery of possession it is rejected by the Court on the ground that it has got inherent power to grant such a decree. The Court was not correct in holding that the suit has to be dismissed for want of prayer for recovery of possession. Now the matter is not a very complicated one which requires deeper consideration for the following reasons. 2. The plaintiff in O.S.140/79 had obtained a decree wherein his property has been demarcated and the line DEF is shown as the A.S. 680 OF 2000 -4- separating boundary between the plaintiffs' property and the defendants' property. When the said decree was put in execution the Courts found that there was already an existing permanent boundary separating the property of the plaintiffs' and defendants' along the DEF line and therefore it was not necessary to put up another boundary and hence closed the petition. So the binding decree passed by competent Court of jurisdiction had declared the right of the plaintiff over the property and had clearly demarcated it in the plan. It has become final. Now the present attempt of the plaintiff is to bring to the notice of the Court that there are attempts of interference done by the defendant with respect to the enjoyment of his property. The Commissioner who had inspected the property in O.S.140/79 was again asked to A.S. 680 OF 2000 -5- visit the property and he had prepared a plan and report. I has perused the said plan and report. A perusal of the plan and report would reveal as follows. “The plaint schedule property was measured out as per the plan attached with the Commissioner's report in O.S.140/79 and is shown in the plan attached to this report demarcated as DEFGH which has an area of 8.019 cents. The eastern boundary is on the DEF line.” 3. The Commissioner does not specifically state about the existence of a permanent boundary on the DEF line in Ext.C1 report. Now there cannot be any quarrel for the defendants as well with respect to the entitlement of the plaintiffs' over the property described as DEFGH in the Commissioner's report. A.S. 680 OF 2000 -6- Therefore in order to have a final solution of the dispute between the parties it is just and convenient to direct the Court below on an application for execution to direct the Commissioner who had visited the property to deliver DEFGH to the plaintiff so that there can be a permanent settlement. It has to be stated the Court can only direct the Commissioner to assist the Amin to help delivery of the property since it is for the Amin to make delivery of the property but the whole matter can be clearly settled when the Court finds that there is a demarcating boundary on the line DEF. If there is no such boundary then let the Court direct the Commissioner to put up a boundary on the DEF line so that the matter can be finally resolved. 4. In the result the appeal is disposed of as follows. A.S. 680 OF 2000 -7- (1) The judgment and decree of the trial court are set aside and the trial court is directed in case of necessity to deliver the property mentioned as DEFGH in Ext.C2 plan and for the same the Amin deputed can be helped by the Commissioner who had prepared the plan. (2) If there is no demarcating wall on the DEF line let the Commissioner at the expense of the plaintiff put up a wall so that it can also be resolved. The appeal is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/- A.S. 680 OF 2000 -8- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No.680 OF 2000 = = = = = = = = = = = J U D G M E N T 13th October, 2010.