Point of Law: The right and title to property have to be determined not with reference to survey demarcation but based on other cogent materials, primary of which is title deed. The record of survey result shall be conclusive proof that boundaries were determined and recorded therein correctly.

JUDGMENT :

The judgment dated 19.10.2004 passed by the District Court, Pathanamthitta in A.S.No.75 of 1998 is under challenge in this Regular Second Appeal. The Appeal Suit arose from the judgment and decree passed by the Munsiff’s Court, Adoor in O.S.No.190 of 1994. The appellant herein is the defendant.

2. The Original Suit was filed for recovery of possession, fixation of boundary and injunction.

3. The plaintiff and defendant are siblings. The plaintiff obtained the plaint ‘A’ schedule property measuring 11 cents under Ext.A1 sale deed of 1972. The plaintiff obtained the plaint ‘B’ schedule property measuring 53 cents under Ext.A2 settlement deed of 1984. The defendant also acquired 29 cents of property under Ext.A2 settlement deed executed by the father of the parties.

4. The plaintiff had been in possession and enjoyment of the entire plaint schedule properties. He had been working in Rajasthan.

Taking advantage of the fact that the plaintiff was not in station, the defendant trespassed upon a portion of plaint ‘B’ schedule property and constructed a building. The plaintiff intervened with the assistance of some relatives and the properties were measured by the Taluk Surveyor and boundary stones were erected. The defendant uprooted the boundary stones and trespassed upon a portion of the property measuring about 7.90 cents marked as BONPQRS in Ext.C1 plan. The plaintiff is entitled to recover that portion of the property from the defendant after fixing the boundary separating the two properties. The plaintiff also prayed for a prohibitory injunction against the defendant.

5. The defendant resisted the suit. The defendant acquired title over 29 cents of property as per Ext.A2 settlement deed. Boundary stones were erected at the time when the father of the parties executed the settlement deed. Based on the settlement deed, he had no reason to trespass upon the property owned by the plaintiff. The allegation that he uprooted the survey stones planted with the Taluk Surveyor's assistance is incorrect. He had not constructed the compound wall encroaching upon the plaintiff's property. In fact, the plaintiff demolished a portion of the boundary wall separating the properties. The defendant is entitled to a sum of Rs.5,000/-as damages from the plaintiff. The defendant set up a counterclaim seeking to realise damages from the plaintiff.

6. During the trial, PWs 1 to 4 were examined and Exts.A1 to A8 were marked on the plaintiff's side. DWs 1 and 2 were examined and Exts.B1 to B3 were marked on the defendant's side. Exts.C1 to C7 were marked as Court exhibits.

7. The trial Court dismissed the suit as well as the counterclaim.

8. The plaintiff challenged the decree dismissing the original suit before the District Court by filing A.S.No.75 of 1998. The defendant challenged the decree dismissing the counterclaim by filing a cross objection. The First Appellate Court allowed the appeal suit. The Court decreed the original suit as prayed for and dismissed the cross objection preferred by the defendant.

9. The defendant is in appeal before this Court under Section 100 of the Code of Civil Procedure.

10. On 31.3.2005, this Court admitted the appeal on the following substantial question of law:-

“In the absence of suit for declaration, whether the suit for recovery of possession, fixation of boundary and injunction will lie.”

After hearing both sides, this Court framed the following additional substantial question of law:-“Has the First Appellate Court drawn necessary inferences and presumptions in accordance with law as to the facts of the case ?”

11. Heard Sri.M.S.Unnikrishnan, the learned counsel for the appellant/defendant and Sri.S.V.Balakrishna Iyer, the learned Senior Counsel appearing for the respondent/plaintiff.

12. The plaintiff and defendant, who are siblings, acquired properties as per settlement deed No.3503/1984 (Ext.A2) in old Survey Nos.582/11, 582/8B, and 582/10. The plaintiff also acquired the property in Survey No.582/10 as per sal