Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN FRIDAY, THE 12TH DAY OF AUGUST 2022 / 21ST SRAVANA, 1944 RSA NO. 459 OF 2008 AGAINST THE JUDGMENT IN AS 12/2003 OF SUB COURT, PALA OS 80/1988 OF MUNSIFF COURT, PALA ----- APPELLANTS/APPELLANTS/PLAINTIFFS: 1 CHANDY, KAVALIYIL HOUSE, RAMAPURAM VILLAGE, RAMAPURAM KARA. 2 K.T.STEPHEN, PERUMALIYIL HOUSE, KUNNUKUZHY, THIRUVANANTHAPURAM FROM RAMAPURAM VILLAGE, RAMAPURAM KARA. BY ADVS. SRI.B.KRISHNA MANI SRI.JOSEPH T.JOHN RESPONDENT/RESPONDENT/DEFENDANT: RAMAN SUKUMARAN, KANIKKUNNEL KALAPURACKAL HOUSE, KONDADU, VELLILAPPILLY VILLAGE. BY ADVS. SRI.AJEESH K.SASI SRI.MATHEW JOHN K THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 12th day of August, 2022
J U D G M E N T
The plaintiffs in a suit for fixation of boundary, recovery of possession and injunction, are the appellants. The trial court partly decreed the suit, granting the relief of fixation of boundary. The other reliefs were declined. The decree was affirmed by the first appellate court.
2. Plaint schedule item No.1 property belongs to
the plaintiff as per Ext.A1 document. On the western side of plaint item No.1 is plaint item No.2 property belonging to the defendant. Alleging trespass by the defendant, the suit has been filed. The allegation of trespass was denied by the defendant.
3. The trial court found that though the defendant
is found to be in possession of excess extent of land than covered under his title deed, the plaintiff has not proved his title over the same, and accordingly declined -: 2 :- the prayer for recovery of possession. A decree for fixation of boundary was granted. The appeal filed by the plaintiff before the first appellate court was unsuccessful. Hence this Regular Second Appeal.
4. Heard Sri.B.Krishna Mani, the learned counsel for the appellants and Sri.Mathew John, the learned counsel for the respondent, on the following substantial question of law :- “Were the courts right in declining the plaintiff the relief of recovery of possession after finding that the defendant is in possession of excess extent ?”
5. The basic document of title of both the plaintiffs and the defendant is one and the same viz. Ext.A1. Subsequently there has been Ext.A2 Deed of
Exchange between the predecessor-in-interest of the parties. It is subsequent thereto that the defendant got assignment of plaint item No.2 under Ext.B1 Sale Deed. The Advocate Commissioner deputed in the suit filed -: 3 :- Exts.C3 report and C3(a) plan. It was noticed that there is excess extent than that mentioned in Ext.A1 document. The Commissioner made proportionate allotment of excess land to both the sharers and accordingly fixed the boundary separating plaint item Nos.1 and 2. The said report and plan were accepted by the courts.
6. The course adopted by the Courts is right in law. The basic document of the parties being common and there being excess land on the spot, proportional allotment is proper. The mode of identification and fixation of the properties cannot be faulted. Exts.C3 and C3(a) report and plan correctly identified the plaint schedule properties.
7. That apart, the plaintiffs are found to be in
possession of more extent than that is covered under their title deeds. The mere fact that the defendant is found to be in possession of more extent than that is covered under his title deed does not entitle the plaintiff to get a decree for recovery of possession. -: 4 :- Unless the plaintiff proves his title over the excess land possessed by the defendant, the plaintiff is not entitled to get a decree. Therefore the courts were right in having declined the prayer for recovery of possession. Substantial question of law is answered accordingly. In the result, the appeal fails and is dismissed. Sd/- SATHISH NINAN JUDGE kns/- //True Copy// P.S. to Judge