Judgement

CHINNAPPA REDDY, J.:- The defendant is the appellant in this appeal by special leave under Art. 136 of the Constitution. The respondent-plaintiff filed the suit out of which the appeal arises for a decree "(a) specifying and demarcating the property comprised in the plaint schedule as per the terms of the agreement dated June 25, 1960, referred to above, after taking a plan of the property; (b) for a perpetual injunction restraining the defendants and their people from trespassing upon the plaint schedule property and in any other manner interfering with the peaceful possession and enjoyment of the same" and other reliefs. The case of the plaintiff was that he had purchased the plaint schedule property of the extent of 1000 acres from Sha Manikalal Shivraj and Dr. C. C. John under a registered sale deed dated December 30, 1959 after obtaining the permission of the Collector of Kozhikode on January 8, 1958. After purchasing the property, he obtained permission to fell timber and clear an area of 500 acres. The first defendant who was part owner of the land forming the south-western boundary of the plaint property also obtained a permission to fell trees in an extent of 100 acres lying in his land. Disputes arose between the plaintiff and the defendant as to the precise boundary between the land of the plaintiff and the land of the defendant. Parties however arrived at a settlement and entered into an agreement dated September 25, 1960 by which the manner in which the boundary was to be ascertained was indicated and three arbitrators were nominated to locate the precise boundary in accordance with the agreement. The arbitrators however declined to demarcate the boundary. The plaintiff, therefore, filed a suit for the reliefs mentioned by us earlier. The suit was dismissed by the Trial Court on the ground that a suit for the demarcation of the boundary of a property was not maintainable where the plaintiff himself was uncertain about the boundary. During the pendency of the suit the trial court appointed a Commissioner to locate the boundary in the manner indicated by the agreement dated September 25, 1960. The Commissioner did in fact submit a report locating the boundary. The plaintiff preferred an appeal against the dismissal of the suit. The Division Bench consisting of Subramanian Poti and Viswanatha Iyer, JJ. reversed the judgment of the trial court. They found that there was no bar to the suit or the grant of the relief claimed by the plaintiff. They accepted the report of the Commissioner appointed by the trial court and granted a decree in terms of the prayer made by the plaintiff.

2. The only question argued before us by the learned counsel for the appellant was that a suit for demarcating the boundary of a property was not maintainable when the plaintiff himself was uncertain about the precise boundary. He placed reliance upon a judgment of the High Court of Bombay in Kavasji Jamsetji v. Hormasji Nassarvanjishet, (1905) ILR 29 Bom 73 and a judgment of a learned single Judge of the Kerala High Court in Rayappan v. Yagappan Nadar, 1958 Ker LT 955. In these two cases, the learned Judges purported to follow the statement of Lord Keeper Henley in Wake v. Conyers, (1759 (1) Wh & TLC (7th Edn.) 170) decided in 1759 where he had said, "the Court has, in my opinion (and if parties are not satisfied, they have resort elsewhere), no power to fix the boundaries of legal estates, unless some equity is superinduced by the act of the parties, as some particular circumstance of fraud, or confusion, where one party has ploughed too near the other, or the like; nor has this Court a power to issue such commissions of course, as here prayed". We do not think that we will be justified in importing into our jurisprudence the technicalities of English law and distinction made by the English courts between legal estates and equitable estates. In India, the question whether a suit is cognizable by a civil court is to be decided with re