MANJERI KARNAMULPAD KOVILAGATH VALIA MANAVIKRAMAN; KOZHIKOTE KIZHAKKE KOVILAGATA VALIA THAMBURATTI AVERGAL, BY VIYATHAN SREEDEVI Vs. KOZHIKOTE KIZHAKKE KOVILAGATH VALIA THAMBURATTI AVERGAL, BY VIYATHAN SREEDEVI; MANJERI KARANAMULPAD AVERGAL, BY NAME MANAV

JUDGEMENT

(1.) These are cross-appeals from the decision of the Subordinate Judge of Calicut in a suit brought by the plaintiffs who belong to the Kizhakke Kovilagam, claiming to recover certain lands from the defendants as part of their Nedunchufi Malavaram. The defendants on the otner hand say that the suit lands belong io their Vennakote Malvaram. The Subordinate Judge in a very careful judgment nas found that the real boundary is not as claimed by either side, but runs along the stream Koyakkadanthodu which in the plan Exhibt A divides the plots B series from the C series. This is a wild hilly country and as observed by the Subordinate Judge, until the decision of the case of Secretary of State for India in Council v. Vira Rayan 9 M. 175 the Government claimed to be the owner of all these waste forest lands; and that, as well as the wild condition of the land, may account for the indefiniteness of the boundaries. A long series of documents have been put in on both sides which have been analysed by the Subordinate Judge. It is sufficient to say that we agree with his conclusion that the plaintiffs, whose admitted lands are to the south, claimed from early times that their boundary extended as far northwards as the Kuruhhithodu; and we agree with the Subordinate Judge that the story of the defendants that another stream far to the south was also known as Kurunhithodu is altogether unworthy of acceptance For one thing it is abundantly proved that the plaintiffs have always been the owners of the plot F which intervenes between what is admitted by the defendants to be the plaintiffs land and the suit lands, plots C. We also agree with the Subordinate Judge that it is not shown that the plaintiffs beyond asserting their claim exercised any acts of ownership in the plots 13 series, that is to say, to the north of the plots C series. Then turning to the defendants case we find more difficulty in ascertaining what was the real boundary claimed by the defendants, because there is no such clear boundary as the Kurunhithodu. But on the whole we see no reason to differ from the main conclusions of the Subordinate Judge as to the position at any rate of the western boundary, a stone called the Anamarippan Kallu. The defendents are anxious to bring that stone down south and place, it if anything, rather to the south-east at the point E3, so that a line drawn from that stone up to the Utratan Puzha would make a sort of south-western boundary whereas in the earlier documents they gave that as, the western boundary. If we place the stone where the Subordinate Judge has placed it, it would form a very fairly accurate western boundary for the defendants lands. This is the boundary in Exhibit 87 which was mainly relied on by the defendants.

(2.) On the east that boundary starts from a certain point in that boundary which is now clearly in the Government forest reserve plot G. But what appears likely is that both the forest reserves G series really at one time belonged to the defendants and the plaintiffs respectively, and we find that oven to this day there are plots of cultivation which belong to the defendants in the plots G series and the defendants boundary as given in Exhibit 87 starts from a point D4 in the reserve. Two other points are then mentioned to mark the boundaries but unfortunately they are not identifiable and throw no light on the case. The boundary is then said to go westwards towards the Anamarippankallu. In the absence of identification of those two points it is impossible to say exactly merely from Exhibit 87 how that boundary line really ran between these two points. In any view we have this state of things, that the defendants claim a boundary which runs clearly to the south of the boundary claimed by the plaintiffs. The defendants ownership of some plots of land to the south of the boundary line contended for by the plaintiffs is sufficient to prevent the plaintiffs contention being accepted in its entirety. One claim has to be set off against the other. It cannot be said that the plaintiffs have established, in the absence of any proof of exercise of ownership, their right to lands which are shown to have been claimed by and in possession of the defendants. There is just one piece of evidence as to which we differ from the Subordinate Judge and which we think is of great assistance in enabling us to decide the case, and that is as to the position of a certain hill belonging to the defendants, that is the Muthappankallu. It is shown, not claimed, that the defendants possessed a hill of that name, but the Subordinate Judge finds that it is situated in what is now Government reserve plot G. On the other hand the defendants rely upon a rough sketch which was drawn up in the year 1871 when there was a question of acquiring part of this plot G for Government, and this is, in our opinion, valuable evidence, because it dates back to a period when this dispute had not arisen. It shows the boundary stones which admittedly run down along the boundary. Between A and G that boundary runs north to south and then runs for a short space down to B4 from west to east, then turns again and runs: from north to south. That is also marked upon this Exhibit 84. We see there the boundary stones running down to south and then west to east and then again north to south. This plan contains a plot 13, which appears from the key which is Exhibit 85 to bear the name of Muthuppankallu and to belong to the defendants; and it is shown in this plan as extending as far down as the Koyakkadamthodu, which is also the southern boundary of D5 and proves, in our opinion, that the defendants lands include B5. That is exceedingly important because it is an answer to both the appeals. For it shows that the defendants appeal claiming that the plots C series belong to them as including Muthappankallu is unfounded. It also shows that the boundary of the defendants land extends as far as that Koyakkadanthodu.

(3.) We have nothing on the other side but the fact that the plaintiffs claimed the lands as far as the Kurunhithodu. That is not enough when we find a similar claim by the other side supported by better evidence. The Subordinate Judge proceeded to some extent, though he is not very definite about it, on the view that the plaintiffs lands did really extend at one time as far as the Kurunhithodu and that they have lost some of them by adverse possession on the part of the defendants. But we think it much more likely that having regard to the nature of these lands and the rival claims of Government their respective rights were very vaguely conceived by both sides and that the plaintiffs put forward a claim to northern boundary to which they never had any real claim.