XAVIER Vs. JOHN

JUDGEMENT

(1.) The first defendant in a suit for declaration of title and recovery of possession is the appellant. He has filed this appeal challenging the correctness of the decree and judgment rendered by the lower appellate court, by which, allowing the appeal of the plaintiff, the decree was modified and recovery of possession of property much more in extent than decreed by the trial court was granted. The dispute involved in the appeal, in fact, lies within a narrow campus, and as such, it is quite unnecessary to advert to in detail the pleadings of the parties and also the issues adjudicated upon before the two courts below. In brief, the facts are thus:

(2.) The first defendant alone contested the suit and the second defendant remained ex parte. The 1st defendant resisted the suit claims contending that the property of the plaintiff and that of the defendants is separated by a well demarcated natural boundary and the plaintiff is not entitled to claim any portion of the property to the east of that natural boundary. It was further contended that the suit had been filed at the instance of the second defendant after the passing of the preliminary decree in the previous suit for partition filed by him, in which, that respondent had been appointed as a receiver over the property by the court. Suit claims canvassed by the plaintiff were not allowable, in short, was the sum and substance of the contentions raised by the first defendant.

(3.) The trial court, on the materials placed by both sides, which consisted of PWs. 1 to 3 and Exts. Al to A3 for the plaintiff, DWs. 1 to 5 and Exts. B1 and B2 for the first defendant, and also Exts. C1 to C3, the reports and plans prepared by the advocate commissioner, arrived at the conclusion that the deficiency found with respect to the extent of land covered by Exts. A1 and A2 sale deeds together, determined as 12 cents, has to be suffered by both the parties proportionately in accordance with the extent of the property described under the respective deed. The report and plan prepared by the Advocate commissioner, exhibited as Exts. C2 and C2(a), were accepted. In Ext. C2 (a) plan, the commissioner separately marking the properties covered by Exts. Al and A2 deeds, had earmarked the proportionate deduction to be effected, on account of the deficiency found in extent of the whole property. Separating line of the properties, shown as MN line in Ext. C2 plan, giving effect to proportionate reduction, was declared as the boundary separating the properties of the plaintiff and the defendants, and a decree of declaration in respect of the property lying to the west of the MN line as identified in the plan was granted in favour of the plaintiff allowing him to recover portions of the property trespassed upon by the defendants in his property upto MN line from the possession of the defendants. A further direction was also given to the defendants to surrender vacant possession of the property trespassed upto the west of MN line, within two months. A decree of perpetual prohibitory injunction was also passed against the defendants from trespassing upon the property of the plaintiff, which was identified as extending upto MN line as shown in Ext. C2 (a) plan. There was no further challenge against the decree from the 1st defendant, but, feeling aggrieved, the plaintiff preferred an appeal mainly contending that the fixation of the boundary as MN line under Ext. C2 (a) plan was incorrect and n should have been fixed as PQ line as shown in that plan, which was further east to MN line. The lower appellate court, after re-appreciating the materials tendered in the case, before which, both sides had accepted the correctness of Ext. C2 (a) plan for resolving the controversy, analysed the challenge raised by the plaintiff over the fixation of boundary following the principles governing execution of documents one after the other in respect of the same property, under Section 48 of the Transfer of Property Act. Which among the documents under Exts. A 1 and A2 was executed earlier in point of time was examined by the lower appellate court with respect to the contents of those documents and other materials produced and it was concluded that Ext. A1 sale deed of the plaintiff was earlier in point of time, and as such, it was held that the plaintiff is entitled to the entire extent shown under that document and the deficiency detected over the whole property, on measurement, has to be suffered by the defendants. Proportionate reduction made by the trial court with respect to deficiency detected over the property was found not correct, and, accordingly, modifying the decree of the trial court, the lower appellate court passed a decree determining PQ line in Ext. C2 (a) plan as the separating boundary of the properties of the plaintiff and the defendants. The 1st defendant has filed this appeal impeaching the correctness of the modification made by the lower appellate court in re-fixing the boundary line as PQ line from MN line under Ext. C2 (a) plan, contending that the recourse made to Section 48 of the Transfer of Property Act, in the given facts of the case, was uncalled for, as there was no material whatsoever to spell out which among the documents simultaneously registered was executed earlier in point of time.