N J KUTTIAPPAN Vs. V J JOSEPH

JUDGEMENT

(1.) PLAINTIFF in O.S.No.300/1997 on the file of Additional Munsiff Court, Alappuzha is the appellant. Defendant is the respondent. Appellant instituted the suit seeking a decree for fixation of boundary and recovery of possession of portion of the property found in the possession of the defendant and for a mandatory injunction to remove the fence constructed within the plaint schedule property. Plaint schedule property is 31.17 cents (12.62 ares in survey No.337/10A2, 337/10C.337/11) of Pathirapally Village, Aryadu South of Ambalapuzha Taluk. Appellant is claiming title to the plaint schedule property under Ext.A1 sale deed. Respondent resisted the suit contending that there is a fixed boundary separating the property of the appellant and the respondent and that boundary has been in existence for more than 60 years and the respondent obtained his property as per a gift deed executed in 1979 by his father John and the extent is 27.25 cents and there was a resurvey later and the property found to be in the possession of the respondent was 12.20 ares and the resurvey was finalised. It is intended that when there exists a fixed boundary, there is no necessity to fix the boundary and the appellant is not entitled to recover any portion of the property in the possession of the respondent and even if he has title to any portion of the property, it is lost by adverse possession and limitation.

(2.) LEARNED Munsiff on the evidence of Exts.A1 and A2, C1 report and C2(a) plan and PW1 dismissed the suit finding that the suit is barred under section 14 of the Survey and Boundaries Act. Holding that evidence establish that there is a boundary fence separating the properties, it was found that appellant is not entitled to the reliefs. Appellant challenged the judgment before Additional Sub Court, Alappuzha in A.S.15/2002. LEARNED Sub Judge though found that the finding of the learned Munsiff that suit is not maintainable in view of Section 14 of the Survey and Boundaries Act is erroneous dismissed the appeal, holding that evidence shows that there is an old boundary fence separating the two properties. The Second Appeal is filed challenging the judgment.

(3.) THE suit is for fixation of the boundary and consequential reliefs. A decree for recovery of possession was sought based on his title, contending that if on such fixation of the boundary respondent is found in possession of any portion of the plaint schedule property, appellant is entitled to recover the same. A decree for mandatory injunction was sought to remove the fence constructed within the plaint schedule property. That also depends on the fixation of the boundary.