PAVANAKUMARI Vs. M.K. KALAVATHY

JUDGEMENT

(1.) Aggrieved by the concurrent finding in the judgment and decree rendered by the trial court (II Additional Munsiff's Court, Thiruvananthapuram) in O.S.No.127 of 2001, dated 18.2.2005, and the first appellate court (III Additional District Court, Thiruvananthapuram) in A.S.No.150 of 2005, dated 24.2.2009, the plaintiff came up with this appeal.

(2.) The suit is one for declaration of title, recovery of possession of the encroached area, fixation of southern boundary and for injunction. There are three schedules in the plaint. A schedule is a large extent of property having 40 cents covered by B schedule to Ext.A1 partition deed of the year 1964. B schedule is the portion alleged to have been encroached by the defendants, having an extent of 4 cents, and the balance extent of the registered holding is the C schedule property, having an extent of 36 cents. A survey commission was issued in the trial court, who, in turn, filed Ext.C1 report and Ext.C1(a) plan.

(3.) The commissioner, during the course of his examination as CW1, had deposed that he did not identify the 40 cents of property belonging to the plaintiff. He also deposed that in order to identify plaint A schedule property, the property of the defendants has to be measured, however, the defendants had not produced any document of title but only Ext.B1 resurvey plan. On that ground, the suit was dismissed by the trial court, which was confirmed by the first appellate court. Aggrieved by the said decree and judgment, the plaintiff came up with this appeal.