IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 16TH AUGUST 2010 / 25TH SRAVANA 1932 SA.No. 285 of 1997(A) --------------------- AS.136/1994 of PRL.SUB COURT, THALASSERY OS.134/1992 of MUNSIFF COURT, THALASSERY .................... APPELLANTS/APPELLANTS 1 TO 3/ DEFENDANTS 1,2 & 4: --------------------------------------------------------------- 1. THAZHAYIL KANNAMBATH SULAIKA, D/O.KHATHI, AGED 50 YEARS, NO OCCUPATION, RESIDING AT KODIYERI AMSOM, AZHIYIKKAL DESOM, P.O.KURICHIYIL, THALASSERY TALUK. 2. SUHARA, S/O.SULAIKA, AGED 35 YEARS, NO OCCUPATION, RESIDING AT KODIYERI AMSOM, AZHIYIKKAL DESOM, P.O.KURICHIYIL, THALASSERY TALUK. 3. AYISHA, D/O.SULAIKA, AGED 27 YEARS, NO OCCUPATION, RESIDING AT KODIYERI AMSOM, AZHIYIKKAL DESOM, P.O.KURICHIYIL, THALASSERY TALUK. BY ADV. MR.K.V.SOHAN RESPONDENTS/RESPONDENTS 1 TO 3/PLAINTIFFS AND DEFENDANT NO.3: ----------------------------------------------------------------------------------- 1. THAZHA VAZHAYIL ADAVI, D/O.ASSYA, AGED 47 YEARS, NO OCCUPATION, RESIDING AT KODIYERI AMSOM, AZHIYIKKAL DESOM, P.O.KURICHIYIL, THALASSERY TALUK. 2. CHAMAYIL NABEESU, D/O.UMMER, AGED 54 YEARS, NO OCCUPATION, RESIDING AT KODIYERI AMSOM, AZHIYIKKAL DESOM, P.O.KURICHIYIL, THALASSERY TALUK. *3. ABDURAHIMAN, AGED 31 YEARS, (STRUCK OFF) S/O.SUALIKA, OCCUPATION NOT KNOWN, RESIDING AT KODIYERI AMSOM, AZHIYIKKAL DESOM, P.O.KURICHIYIL, THALASSERY TALUK. *THE NAME OF THE 3RD RESPONDENT IS STRUCK OFF FROM THE PARTY ARRAY AS PER ORDER DATED 30.8.2000 ON C.M.P.NO.1588/2000. ADV. MR.GRASHIOUS KURIAKOSE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. ------------------------------ S.A.NO.285 OF 1997 ------------------------------- DATED THIS THE 16TH DAY OF AUGUST, 2010 JUDGMENT Defendants 1, 2 and 4 in O.S.No.134/92 on the file of the Munsiff's Court, Thalassery are the appellants. The appeal is directed against the judgment and decree in A.S.No.136/94 on the file of the Sub Court, Thalassery. The suit was filed for fixation of boundary. The trial court passed a decree demarcating the boundary between the plots of plaintiffs and defendants and the green line dividing plot D and plot A from plot C in Ext.C4 is fixed as the boundary. The trial court also granted recovery of possession of plot D. The court also issued mandatory injunction directing the 2nd plaintiff to remove the pipe in plot C. The Appellate Court confirmed the decree and judgment of the trial court and dismissed the appeal. 2. When the second appeal was taken up for final hearing, the learned counsel for the respondents/plaintiffs -2- S.A.No.285/97 submitted that the appeal can be disposed of without going into the merits. The learned counsel submitted that the plaintiffs have no objection in setting aside the decree and judgment, fixing the boundary and ordering recovery of possession of plaint schedule property. In the light of the submission made by the learned counsel, the judgment and decree passed by the courts below require modification. In the result, the appeal is partly allowed. The judgment and decree passed by the courts below demarcating the boundary between the plots of the plaintiffs and defendants and fixing the green line dividing plots D and A from plot C in Ext.C4 plan are set aside. In modification of the judgment and decree passed by the courts below, there will be a decree demarcating the boundary between the plot A and plot C in Ext.C4 plan. The existing boundary marked as plot E in the plaint shall be the boundary between the said two plots. Consequently, the decree for recovery of possession of plot D -3- S.A.No.285/97 also stands set aside. In all other aspects, the decree and judgment passed by the courts below stands. There will be no order as to costs. Registry shall send back the records immediately. HARUN-UL-RASHID, JUDGE. kcv.