P NARAYANAN NAIR Vs. E ACHUTHAN NAIR

JUDGEMENT

(1.) THE subject-matter of the suit from which this appeal arises is the dispute between the plaintiff and the first defendant as to the boundary between their properties. Plaintiff is the owner of Cheria Cheero-thumkalam Mala while the first defendant is the owner of Puthenpeedikamala and the dispute is as to the boundary between these two properties. THE plaintiff sued for specification and demarcation of the property comprised in the plaint schedule in accordance with the terms of an agreement reached between the plaintiff and the first defendant earlier and he also prayed for a perpetual injunction restraining the defendants and their men from trespassing upon the plaint property and interfering with the plaintiff's possession. THEre is a further relief prayed for in the suit and that concerns the claim of damages in respect of trees, if any, cut by the defendants from the plaint property. THE plaintiff lost the suit in the court below, that court finding that the suit was not maintainable and that even otherwise the plaintiff was not entitled to succeed. This appeal is by the unsuccessful plaintiff.

(2.) THE plaintiff claims to have obtained title to the plaint schedule property which is described in the plaint as Cheria Cheerothumkalam Malavaram, 1000 acres in extent, lying north of Kodappadimala, Kodappadi thodu and Puthenpeedika Mala. According to him he obtained this Malavaram under Ex. A-2 sale deed executed by one Maaikalal Sivaraj and Dr. C. C. John after Forests Act, 1949. Such sanction was necessary since the property dealt with was private forest and without permission from the Collector any transfer would not be valid. THE executants of Ex. A-2 sale deed are said to have obtained title to the property from one Mahammad under Ex. A-l dated 20 9 1943, and this right so obtained by them under Ex. A-l was conveyed under Ex. A2.

(3.) THE main contentions of the first defendant were that the suit was not maintainable both for the reason that in view of the agreement, Ext. A-3, the only course open to the plaintiff was to seek a final decision through arbitration and also because, according to him, a suit for settlement of boundaries would not be maintainable in law. THE first defendant also disputed the claim of the plaintiff that be had Cheria Cheerothumkalam Mala with an extent of 1000 acres with the boundaries and measurements described in the plaint. According to him plaintiff's property lay further north of what he claimed, and on a proper settlement of boundaries no portion of the property which is now claimed by the plaintiff as disputed would form part of bis property.