IBRAHIM Vs. SAYTHUMUHAMMED

JUDGEMENT

(1.) Defendants in a suit for fixation of boundary and for prohibitory injunction are the appellants. The suit was originally filed against the 1st defendant alone. Subsequently, additional defendants 2 and 3 were impleaded. The Trial Court held that plot No. 1 in Ext. C1(b) plan is the plaintiffs' property and thus fixed the northern and western boundary of the said plot. Prohibitory injunction was granted restraining the defendants from trespassing into plot No. 1, shown in Ext. C1(b) plan, and from committing any acts of waste. The appeal filed by the defendants was dismissed, confirming the decree and judgment passed by the Trial Court. The learned counsel for the appellants vehemently argued that the observations made by the Advocate Commissioner in Ext. C1 report will make it undoubtedly clear that plot No. 2, shown in Ext. C1(a) plan, is in the possession of the defendants and it was based on that report filed by the Commissioner additional defendants 2 and 3 were impleaded. It is also submitted by the learned counsel that the application IA No. 3225/2008 was filed by the plaintiffs to implead additional defendants 2 and 3 on the ground that a portion of the property was found to be in the possession of the defendants and so the plaintiffs cannot contend that the disputed plot - plot No. 2, shown in Ext. C1(a) plan was also in the possession of the plaintiffs as on the date of the suit. Therefore, it is argued by the learned counsel that without a prayer for recovery of possession, the plaintiffs cannot get the boundary of the property fixed, as if plot No. 2 is in the possession of the plaintiffs. Without seeking recovery of possession of plot No. 2, the plaintiffs cannot have a short cut by seeking a prayer for fixation of the boundary, it is further argued.

(2.) The following substantial question of law was framed by this Court:

(3.) The learned counsel for the respondents would submit that the Trial Court and the Appellate Court have considered the entire pleadings and evidence and found that plot No. 2, shown in Ext. C1(a) plan, is part of 8 cents of land covered by Ext. A1 title deed of 1965. Apart from the oral vibration of the defendants that they were in possession of this disputed plot for about 40 years, no documentary or oral evidence could be produced by the defendants to show that they have got any right over plot No. 2 shown in Ext. C1(a) plan. It is submitted by the learned counsel for the respondents that what was reported by the Commissioner and what was stated by the plaintiffs in evidence is only to the effect that as per the survey commission plot No. 2 falls outside the property of the plaintiffs and has been shown as the property forming part of the property claimed by the defendants. There is no admission that plot No. 2 in Ext. C1(a) plan was in the possession of the defendants. In other words, according to the learned counsel, simply because, as per the survey demarcation, this small bit of land happened to be shown as part of the property of the defendants, it cannot be said that the defendants were in settled possession of the property. Stray or intermittent act of possession cannot be taken up as a ground to hold that the plaintiffs were out of possession so as to deny a decree for injunction.