BALAKRISHNA PILLAI Vs. LALITHA BAI

JUDGEMENT

(1.) DEFENDANTS 1 and 2 in O.S.324 of 1987 on the file of Munsiff Court, Punalur are the appellants. Respondents are the second plaintiff and legal heirs of first plaintiff who were impleaded in the first appeal, as the first plaintiff died during the pendency of the first appeal. Suit was instituted for declaration of title, fixation of boundary and permanent prohibitory injunction. Plaint schedule property is 72 cents in survey No.2201/3 of Maloor Village. It admittedly originally belonged to the family of the plaintiffs and defendants. Under Ext.B1 partition deed dated 8.10.1969, the properties were divided. The western portion was alloted to the appellants and the eastern portion to the plaintiffs. Plaintiffs are contending that they have title to the plaint schedule property as it was allotted to them under Ext.B1 partition deed and later ten cents of that property was settled in the name of second plaintiff under Ext.A1 settlement deed and as there is no boundary separating the property from the property which lies to the west belonging to the appellants, they are attempting to trespass into the plaint schedule property and therefore the boundaries are to be fixed and the defendants are to be restrained by a permanent prohibitory injunction from trespassing into the plaint schedule property. Appellants resisted the suit contending that immediately after the partition of 1969, the properties were measured and the property alloted to the appellants were taken possession and the boundaries were fixed and since then, they have been in possession of the property and part of the plaint schedule property is the property belonging to appellants and respondents have no title to the said property. It was also contended that even if respondents have title, it was lost by adverse possession. It was also contended that respondents are not entitled to get the boundary fixed so as to include a portion of the property in their possession.

(2.) LEARNED Munsiff on the evidence dismissed the suit. The plaintiffs challenged the judgment before Sub Court, Kottarakkara in A.S.32 of 1993. During the pendency of the first appeal, first plaintiff died and the legal heirs were impleaded. LEARNED Sub Judge on reappreciation of evidence found that though under Ext.B1 partition deed the property was divided into two and the western portion was alloted to the share of appellants and the eastern portion to the respondents, instead of 93 cents shown in the partition deed, the actual extent available was 1 acre 51 cents and as per the division in Ext.B1, each of them is entitled to get the property in the proportion in which it was divided under Ext.A1 and if that be so, defendants are entitled to 78 = cents and plaintiffs, 72 cents. LEARNED Sub Judge also found that as demarcated by the Commissioner in Ext.C3 plan, the western pink coloured plot is 78 cents belonging to the defendants under Ext.B1 and the eastern 72 = cents is the green shaded plot marked in the plan and respondents have title to that property and the boundaries separating the two properties is XY line as shown therein and respondents are entitled to the decree fixing XY as the boundary and declaring the title of respondents to the property which lies to the east of XY line and appellants have title only to the property which lies to the west of XY line and respondents are also entitled to a decree for injunction. Appeal was allowed. Defendants are challenging the judgment in the second appeal.

(3.) THE demarcation of the properties in Ext.C3 plan except with regard to the division, is not in dispute. Though under Ext.B1 partition deed, the property divided and alloted to the plaintiffs and defendants are shown as 93 cents, it is admitted by both the parties that the actual extent is 1 acre 51 cents. If 1 acre 51 cents is divided in the proportion by which 93 cents was divided under Ext.B1 partition deed, as rightly found by first appellate court, the property for which appellants could claim title is 78 = cents and respondents could claim title to the eastern 72 = cents. THE Commissioner has divided the property in accordance with the said measurement and fixed XY as the boundary line. THE case of appellants is that though under Ext.B1, the property was divided as if the total extent is 93 cents, immediately after the partition, the properties were measured and appellants have put up boundaries separating their property and the eastern boundary of the said property is the line shown by the Commissioner to the east of XY line. THE argument of the learned counsel is that when the Commissioner inspected the property and submitted Ext.C5 report and C4 mahazar, Commissioner could find a boundary separating the two properties from north to south and the Commissioner has noted a separating wall from north to south having a length of 50 feet and thereafter it continued to a length of 100 feet having a height of 1 feet and thereafter till the southern end, there was a separating boundary having a height of one half feet and though when the Commissioner inspected the property for submitting Ext.C5 report, the Commissioner could note only a separating boundary from north to south having a length of 36 metres and a partly dilapidated boundary having a measurement of 30 metres and could not find any separating boundary towards further south and that portion of the boundary was removed by the plaintiffs subsequently and therefore based on Ext.C4 and C5, it is not possible to hold that there was no separating boundary. Learned counsel would argue that Ext.C5 mahazar reveals that the Commissioner could find the improvements effected by the plaintiffs and defendants on either side of the separating boundary and in such circumstances, it is clear that the property which lies to the west of the separating boundary shown in Ext.C3 plan has been in the possession of appellants and therefore even if appellants have title to that property, they are not entitled to a decree for fixation of the boundary, as they did not seek a decree for recovery of possession.