Point of Law : Default or carelessness of the parties does not absolve the Trial Court of its obligation to satisfy that the property ordered to be recovered is identifiable.

JUDGMENT :

These two Regular Second Appeals arise from the common judgment dated 29.3.2014 in A.S.Nos.102 & 103 of 2011 passed by the Subordinate Judge’s Court, Perumbavoor. The Appeal Suits arose from the common judgment and decree dated 29.7.2011 in O.S.No.32 of 2009 and O.S.No.9 of 2008 passed by the Munsiff’s Court, Kolenchery. The appellant instituted O.S.No.9 of 2008 for damages and mandatory injunction against respondent No.1. The respondents instituted O.S.No.32 of 2009 for declaration of title regarding the plaint schedule properties and for recovery of a portion of the immovable property said to have been encroached upon by the appellant. The respondents also prayed for a permanent prohibitory injunction.

2. Material facts relevant for the adjudication of these appeals are briefly narrated below:-

2.1. The appellant is the absolute owner in possession of 10 cents of land comprised in Survey No.379/9 of Thiruvaniyoor Village. He constructed a house in the plaint schedule property. He resides in the said house. The respondents own properties on the western side of the appellant’s property. On the western side of the appellant’s property, a pathway runs. The respondents are living in inimical terms with the appellant. On 26.1.2008, the respondents, along with their men, destroyed the compound wall constructed by the appellant on the western, southern, and northern boundaries of the plaint schedule property. The respondents destroyed the foundation of the boundary wall. They are liable to construct the compound wall destroyed by them, for which a mandatory injunction is to be granted. The appellant is entitled to compensation of Rs.10,625/- from the respondents.

2.2 The respondents contended that they are the owners in possession of 30 ares of property in Survey No.379/3 of Thiruvaniyoor Village. These properties are described as ‘A’ and ‘B’ in the schedule appended to the plaint in O.S.No.32 of 2009. The appellant encroached upon a portion of the respondents’ properties and annexed the same. The extent of the property over which the appellant encroached upon would come to 617 sq.links. The respondents are entitled to a declaration that they are the titleholders of the properties scheduled in the plaint and for recovery of possession of the portion encroached upon by the appellant, which is described as ‘C’ schedule. The respondents are also entitled to the fixation of boundaries of the properties.

3. Both the suits were jointly tried. O.S.No.32 of 2009 was taken as the lead case. During the trial, PWs 1 to 3 were examined, and Exts.A1 to A5 were marked on the side of the respondents. DWs 1 to 4 were examined, and Exts.B1 to B5 were marked on the side of the appellant. Exts.C1 to C4 series were marked as Court exhibits.

4. The Trial Court dismissed O.S.No.9 of 2008 and decreed O.S.No.32 of 2009, holding that the respondents have title over ‘C’ schedule property and are entitled to recovery of possession of ‘C’ schedule property from the appellant. The Trial Court held that the properties had been identified and located in Ext.C3(a) plan. The Trial Court also declared that the boundary lines set in Ext.C3(a) are the boundary lines separating the properties of the appellant and the respondents. The Court declared that the respondents are the owners of the plaint ‘C’ schedule property. The Trial Court directed the appellant to surrender the possession of ‘C’ schedule property to the respondents. The eastern boundary of the plaint schedule properties was fixed as the black line between the red coloured shaded portion, and violet coloured shaded portion in Ext.C3(a) plan. The appellant was restrained by an order of permanent prohibitory injunction from trespassing into the plaint ‘A’ & ‘B’ schedule properties, committing any mischief therein and preventing the respondents, their agents, and men from using the plaint ‘D’ schedule pathway.

5. The appellant challenged the decree and judgment before the First Appellate Court in A.S.Nos.