IMPORTANT POINT
Right to put-up Boundary Wall/Fence is confined only to extent of land over which plaintiff has title.

JUDGMENT :

M.R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 01.02.2018 passed by the High Court of Kerala at Ernakulam in Second Appeal No. 39 of 2000 by which the High Court has allowed the said second appeal and has set aside the concurrent findings recorded by both the Courts below and consequently has decreed the Original Suit No. 665 of 1988, the original defendant No. 4 has preferred the present appeal.

2. The facts leading to the present appeal in a nutshell are as under:-

2.1 The dispute is with respect to the putting up the boundaries in respect of the B schedule Items 1 and 2. That plaint A Schedule land originally belonged to one Parameswaran Nadar. The original owner - Parameswaran Nadar filed O.S. No. 833 of 1961 before the Court of Munsiff, Neyyattinkara, in which his title to and possession over plaint A schedule land was declared to the extent of 2 acres and 35 cents. Subsequently, the original plaintiffs in the present case filed O.S. No.640 of 1970 for recovery of the buildings situated in plaint A schedule therein. At this stage, it is required to be noted that the first plaintiff is the wife of the original owner - Parameswaran Nadar and the plaintiff Nos. 2 to 5 are his children. In O.S. No. 640 of 1970, a question of kudikidappu was raised, which was referred to the Land Tribunal concerned for adjudication. The Land Tribunal, after taking evidence, entered a finding that the defendants in that suit (defendant Nos. 1 to 3 herein) were entitled to kudikidappu rights. O.S. No. 640 of 1970 came to be dismissed. The plaintiffs filed an appeal against rejection of their claim in one of the buildings, which was situated in the plaint C schedule. The said appeal came to be allowed. In execution, the person in occupation of the C schedule was evicted. Later, a compromise was arrived at between the parties and the property now shown in C schedule was gifted to the son of the defendant in the earlier suit.

2.2 That thereafter the plaintiffs herein filed the present suit being O.S. No. 665 of 1988 with a prayer to put up the boundary in respect of the plaint B schedule Items 1 and 2. It was the case on behalf of the plaintiffs that they have no objection in allotting 10 cents each to the defendant Nos. 1 and 3 in kudikidappu right and rest of the property has to be secured by putting up a boundary wall. The defendants filed the written statement disputing the description of the plaint schedule properties. They also contended that they are in possession of properties in excess of kudikidappu right and they are legally entitled to possess the same. It was the case on behalf of the defendants that they have perfected their title over a property having more than 10 cents in extent.

A Court Commissioner was appointed, who submitted his report - Court Commissioner’s Report (Exts. C1 and C2). On appreciation of evidence, the learned Trial Court dismissed the suit, which came to be confirmed by the First Appellate Court.

Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned Trial Court dismissing the suit and which was confirmed by the First Appellate Court, the original plaintiffs filed the Second Appeal No. 39 of 2000 before the High Court. The appeal was admitted on the following substantial questions of law:-

“1. When the lower court has found that the defendants have not perfected their title over plaint D schedule by adverse possession and limitation, should not the lower court grant a decree to the plaintiff allowing the plaintiff to put up boundary to separate plaint D schedule from B and C schedule properties?

2. Is the finding of the lower court dismissing the suit valid on the ground that the plaintiff has not prayed for recovery of the property from the receiver?

3. If the title of the plaintiff over the plaint D schedule property is found in favour of the plaintiff, can the prayer for putting up boundary be rejected on the ground that the said p