KARTHIYAYANI AMMA Vs. GOVINDAN

JUDGEMENT

(1.) Plaintiffs l to 3 are the appellants. The suit was for a declaration of title and possession and also for an injunction to restrain the defendants from interfering with the plaint property and destroying a boundary (Wada). The trial Court decreed the suit declaring that the plaintiffs had title and possession over 67 cents of plaint schedule property and that the plaintiffs were entitled to get the wada, which existed on the western boundary of the plaint schedule property, restored. In appeal, the Appellate Court set aside the decree and judgment of the trial Court. Hence this Second Appeal.

(2.) The dispute in this case relates to 17 cents of land which, as per the documents of title, forms part of the 1st defendant's property which is 1-17 acres in extent. The plaintiffs have as per their documents of title property only of 50 cents in extent. The plaintiffs did not have a consistent case regarding the extent of the property. In the original plaint, the extent of the property was shown as 7 cents. Later it became 17 cents by two amendments in the plaint. The entire property originally belonged to one tarwad. By various assignments the plaintiffs became entitled to the 50 cents of land called "..(Text in Malayalam not Printed).." and the defendant to a property with an extent of 1.17 acres. For the purpose of this second appeal, I held that the property to which the plaintiffs are entitled as per their documents of title to be 50 cents in extent and that to which the 1st defendant is entitled to be 1 acre 17 cents in extent. In doing so, I confirm, the decree of the Appellate Court declining the plea of declarations of title claimed by the plaintiffs.

(3.) The bone of contention in this second appeal relates to the existence of a wada at the eastern extremity of the property belonging to the 1st defendant and the western extremity of the property which the plaintiffs claimed to be in possession. I say so advisedly because the claim now put forward, as seen in the amended plaint, is a claim to 67 cents of property that is 17 cents in excess of what is seen in the documents of title of the plaintiffs. The learned counsel for the respondents strenuously contended that the wada was an imaginary boundary because there was no mention of 6 wada in any document of title. This is so, but, from the evidence in this case and the findings entered by the Courts below, it is possible to infer that something like a wada existed on the ground at the time the suit was filed. There is no evidence in this case as to when the wada came into existence. Suffice it to say for the purpose of this second appeal that a wada existed at the time the suit was filed. It was contended by the respondents' counsel that the amended plaint had given a goby to the rase that the wada existed in between the plaintiffs and defendants' property. This may not be strictly correct because there is mention of the existence of the wada in the body of the plaint and is the 1st schedule attached to the plaint Be that as it may, it is evident from the 1st Commissioner's report, which has been referred to by the Courts below, that the wada existed on the property. According to the appellants the cause of action for the suit itself was the attempt of the defendants to demolish this wada. The trial Court has found in para 10, last sentence, as follows: