Judgment

Prafulla C. Pant, J.

1. These appeals have arisen out of judgment and decree dated 6.6.2013, passed by the High Court of Kerala in Regular Second Appeal No. 188 of 2013, whereby said appeal was allowed by the High Court. By the order dated 7.2.2014, passed by the High Court, Review Petition No. 611 of 2013 in second appeal was dismissed.

2. We heard learned Counsel for the parties and perused the papers on record.

3. Briefly stated, Plaintiff Annamma Thomas (predecessor-in-title of the present Appellants) instituted suit No. 415 of 2005 before the Principal Munsiff, Alappuzha, for injunction restraining the Defendants from trespassing into the property mentioned in the schedule of the plaint, and from demolishing its boundary. It is pleaded in the plaint that the Plaintiff Annamma and her two children Mathew and Benny were the absolute owners of the property, which they purchased vide Sale Deed No. 824/80 dated 3.5.1980. They further pleaded that they were in possession of the property. It is also pleaded by the Plaintiffs that the Defendants are the Kudikidappukari (persons holding tenancy rights) of the previous owners to the extent of 10 cents of property (1/10thof an acre), which is on the northern side of the property in suit. The Defendants were in possession of said part. It is further pleaded by the Plaintiffs that boundary between the property in question and that of the Defendants is well demarcated. It is alleged by the Plaintiffs that on 19.6.2005, the Defendants attempted to demolish the existing fence. Therefore, the suit filed.

4. The Defendants filed written statement and additional written statement, and contested the suit. They denied the title of the Plaintiff over the land in question. They also denied having attempted to demolish the fencing as alleged by the Plaintiff. It is stated in the written statement that mother of the Defendant No. 1 was given 10 cents of the land on the north of 'Thodu' (water channel), lying on the northern side of the property.

5. The trial court framed as many as five issues, including the issue relating to correctness of description of the property in suit. After giving opportunity to the parties to adduce evidence, and after hearing them, the trial court found that the property in the suit is owned by the Plaintiffs and decreed the suit with following directions:

1. The Defendants are restrained by a decree of permanent prohibitory injunction from trespassing into the plaint schedule property i.e. property on the south of the boundary fence consisting of poovarash trees existing on the northern boundary of the plaint schedule property and from demolishing this boundary.

2. The northern boundary of the plaint schedule property is fixed as the existing boundary fence, constituted of poovarash trees i.e. 40 cms, to the south of EF line of the C1(b) plan. C1(b) plan is attached along with the decree.

6. Aggrieved by said judgment, the Defendants filed A.S. No. 123 of 2009 before the District Judge, Alappuzha. At the appellate stage, the Defendants sought to adduce additional evidence which was allowed by the first appellate court, and documents Ext. B-1 to B-9 were taken on record. The first appellate court, after hearing the parties, affirmed the decree of the trial court, vide its judgment and decree dated 19.10.2012, with following directions and modifications:

In the result, the appeal allowed in part. Suit decreed fixing the northern boundary of Plaintiff's property as EF line. Ext. C1(b) plan will form part of the decree and granted a permanent prohibitory injunction restraining the Defendants from trespassing into the property of Plaintiff or causing any kind of obstruction of its peaceful possession and enjoyment.

7. Following reasons are given in para 8 of the judgment of the first appellate court for the above directions:

On measurement by the commissioner it was found that 20 cents of property available and there is no reduction in extent. If that be so, the property can