IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 8TH JANUARY 2010 / 18TH POUSHA 1931 AS.No. 512 of 2001() -------------------- OS.1246/1994 of PRL.SUB COURT,THIRUVANANTHAPURAM .................... APPELLANT/DEFENDANT: ----------------- S. TITUS, AGED 56, S/O. SAMUEL, VALIYA VILA VEEDU, VIZHAVOOR, MALAYAM P.O., VILAVOORKKAL VILLASGE, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.S.V.RAJAN SRI.R.SUDHISH SMT.M.MANJU SMT.V.P.GEETHA KUMARY SRI.A.N.PREMLAL SMT.SHIBI. K.P. SRI.C.P.JAGADESH SRI.S.VINOD SRI.R.VIVEK RESPONDENT/PLAINTIFF: -------------------- S.JAMES, AGED 63, S/O.SAMUEL, LINI GARDENS, VIZHAVOOR, MALAYAM P.O. VILAVOORKKAL VILLAGE, THIRUVANANTHAPURAM DISTRICT. (DIED) ADDL. 2. SMT. VICTORIA, AGED 60. W/O. LATE S. JAMES, LINI GARDENS, VIZHAVOOR, MALAYAM P.O., VILAVOORKKAL VILLAGE, THIRUVANANTHAPURAM DISTRICT. '' 3. SMT. LINI JAMES, AGED 31, D/O. LATE S. JAMES, -DO -DO- (Legal heirs of deceased respondent are impleaded as addl. respondents 2 and 3 vide order dated 9/10/09 in IA.No.232/02) ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE FOR ADDL. R2 & 3 SRI.MVS.NAMBOOTHIRY THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 08/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.3672/01 IN A.S.NO. 512/01 --------------------- Dismissed 8/1/2010 Sd/- Harun-Ul-Rashid, Judge. True Copy HARUN-UL-RASHID,J. -------------------------- A.S.NO.512 OF 2001 -------------------------- DATED THIS THE 8TH DAY OF JANUARY, 2010 JUDGMENT Defendant in O.S.No.1246/94 on the file of the Principal Sub Court, Thiruvananthapuram is the appellant. The suit was filed for declaration of title and for fixation of boundary. The court below passed a decree declaring the plaintiff's right and title over the plaint schedule property and allowing the plaintiff to put up a boundary along the line J W V in Ext.C1(a) plan. The court below also passed a decree of perpetual injunction restraining the defendant from trespassing into any portion of the plaint schedule property. Aggrieved by the said decree and judgment the defendant has preferred this appeal. The parties hereinafter referred to as plaintiff and defendant as arrayed in the suit.vide 2. Plaintiff and defendant are brothers. The plaintiff obtained the plaint schedule property as per the settlement deed -2- A.S.No.512/01 No.2219/69 dated 25/7/1969. The plaint schedule property is item No.1 of D schedule to the said settlement deed. The extent of property allotted to the plaintiff is 71.5 cents, which is the plaint schedule property. Defendant, who is the younger brother of the plaintiff, has been allotted 94 cents. The said property is described as E schedule to the settlement deed. Subsequent to the partition, the plaintiff had effected mutation and is paying land tax. The defendant's property is lying on the western and southern side of the plaint schedule property. According to the plaintiff, there was no boundary put up pursuant to the settlement deed and that the defendant, taking advantage of this situation had influenced the resurvey authorities and with their help attempted to put up a mud bund at a height of half feet alleging that it is the boundary as per the settlement deed 1969. 3. The defendant resisted the suit. The allotment of properties as per Ext.A1 partition deed 1219/1969 is admitted. The defendant contended that even though D schedule was -3- A.S.No.512/01 shown as 71.5 cents (28.95 Ares), the plaintiff obtained only 23 Ares. It is also contended that though 94 cents (38.07 Ares) of property is allotted to the defendant as per the partition deed, in fact, the actual extent allotted is 109.5 cents. Therefore, according to the defendant, he got an excess of 15.5 cents. According to him, the plaintiff has been in possession of only 23 Ares of land and the balance extent allotted to him is in the possession and enjoyment of the defendant from the date of the settlement deed. It is also contended by the defendant that as per the re-survey conducted, the re-survey authorities prepared a plan showing that the defendant is the title holder of 43.80 Ares and the plaintiff is the title holder of 23 Ares. Accordingly, mutation has also been effected pursuant to the re-survey records. 4. The parties adduced oral and documentary evidence. PWs.1 and 2 and DWs. 1 to 3 were examined and Exts.A1 to A6, B1 to B3 and C1, C1(a) and C2 were marked. I have already mentioned in the preceding paragraphs that both parties obtained -4- A.S.No.512/01 title from the very same settlement deed marked as Ext.A1. It is also not in dispute that the plaintiff was allotted 71.5 cents of land and the defendant was allotted 94.3 cents of land. Plaintiff sued the defendant stating that there is no permanent boundary in between the properties and therefore a permanent boundary may be put up along the southern portion of the plaint schedule property. This Court also noticed the fact that D schedule of Ext.A1 is the plaint property set apart to the plaintiff and E schedule to Ext.A1 to the defendant. The description of property also seems to be correct. The parties have no dispute regarding the description or location of the property. The property scheduled in the plaint is the property obtained by the plaintiff in the partition deed. The boundary shown in the plaint is the same as shown in Ext.A1 partition deed. The defendant had not disputed the title of the plaintiff with respect to the plaint schedule property. The contention raised by the defendant is that though the extent of land allotted to the plaintiff is 71.5 cents, the -5- A.S.No.512/01 plaintiff got possession of only 56 cents of land and that the balance extent is in the possession and enjoyment of the defendant from the date of partition deed. 5. The court below deputed a Commissioner with the assistance of Taluk Surveyor to measure and identify the plaint schedule property and the adjoining the property, which belongs to the defendant. The Commissioner measured and identified the properties obtained by the plaintiff and defendant as per Ext.A1 partition deed. The Commissioner on inspection found that there is a mud bund. According to him, the mud bund was put up recently. He reported that there is no demarcating boundary between the properties of the plaintiff and defendant. 6. The plaintiff's grievance is that the defendant is trying to take advantage on the strength of the re-survey measurement. The defendant has no case that he has trespassed into the plaint schedule property. The definite case is that as on the date of Ext.A1 settlement deed he came into possession of -6- A.S.No.512/01 larger extent, which was included in the portion allotted to the plaintiff. I have examined the evidence tendered on the side of the defendant. Except the interested testimony of the defendant there is no proof to show that he is in possession and enjoyment of a portion of the plaint schedule property from the date of Ext.A1 partition deed. There is no independent evidence adduced by the defendant for entering into a finding that he came into possession of the property and he was enjoying the portion of the same so that the boundary line shall not be fixed on the basis of the extent shown in the respective title deeds. Since the contention is not established by any proof, the said contention has to fail. 7. The plaintiff, who was examined as PW1 has tendered evidence in support of his pleadings. He produced Ext.A1 settlement deed. Ext.A2 and A2(a) are the tax receipts which would evidently show that he paid the tax for the extent covered by his title deed. The Commissioner measured and -7- A.S.No.512/01 demarcated the property on the basis of the allotment under Ext.A1. The Commissioner noted a mud bund. Defendant contended that the mud bund is the boundary line between the properties. The Commissioner noted that the age of the mud bund is less than 8 months. The contention of the defendant that the mud bund is the boundary line between his property and the property of the plaintiff and that this mud bund is in existence from the date of Ext.A1 partition deed, is not proved. So long as there is no proof that the plaintiff is in possession of the entire property covered by his title deed and that the defendant is in possession of the property, in excess of the property allotted to him under the title deed and the further fact that there is no visible boundary seen in between their properties, the only course open to the court is to fix a boundary in between the properties of the plaintiff and defendant in accordance with the allotment as shown in Ext.A1 partition deed. Another factor to be taken into consideration is the fact which has come out in evidence that -8- A.S.No.512/01 portions of the property belonging to the plaintiff and defendant were enjoyed by their mother till her death. Going by the provisions in the partition deed it is seen that 35 cents from D schedule and 45 cents from E schedule were set apart for the enjoyment of their mother. So going by the said provision, it is seen that the mother was enjoying the portions of properties which were allotted to the plaintiff and defendant. That also may be a reason for not putting a permanent boundary between their properties. 8. The defendant resisted the suit stating that the plaintiff has no right to sue, in view of the decision of the re- survey authorities. At the time of examination the defendant set up a new case stating that there is a mistake occurred in the measurement at the time of Ext.A1. The trial court noted the fact that the defendant has no case that he has trespassed into the property of the plaintiff nor he claims adverse possession. He set up title on the basis of the re-survey measurement and records. -9- A.S.No.512/01 The trial court held that re-survey measurement or re-survey records does not bar the plaintiff to sue for putting a boundary on the strength of title and that the possession claiming based on the re-survey records without pleading substantial right is of no consequence. The trial court rightly observed that the defendant had not acquired title over any portion of the plaintiff's property and that the defendant did not deny the title of the plaintiff. 9. The Commissioner has identified D and E schedule to Ext.A1. He also identified the line J V W as the south-western boundary of the plaint schedule property and the plot J K W V as the disputed land over which the defendant claims possession. In the light of the facts, evidence and attendant circumstances, I find that the relief for fixation of boundaries was rightly extended by the court below to the plaintiff. I do not find any reason to interfere with the findings entered by the court below. On the basis of the evidence on record, I am of the view that the plaintiff is entitled to the reliefs claimed in the suit. -10- A.S.No.512/01 In the result, the appeal fails and accordingly dismissed. There will be no order as to costs. HARUN-UL-RASHID, JUDGE. kcv. -11- A.S.No.512/01 HARUN-UL-RASHID,J. -------------------------- A.S.NO.512 OF 2001 -------------------------- JUDGMENT 8TH JANUARY, 2010 -12- A.S.No.512/01 -13- A.S.No.512/01