JUDGMENT :

This appeal is directed against the judgment and decree dated 26.08.2020 passed by the District Court, Pathanamthitta in A.S.No.97/2019. The appeal suit arose from the judgment and decree dated 24.08.2019 passed by the Subordinate Judge’s Court, Thiruvalla in O.S.No.8/2010.

2. The plaintiffs in the Original Suit are the appellants. The defendants are the respondents.

3. Defendant No.2 in O.S.No.8/2010 filed O.S.No.14/2012 against the appellants/plaintiffs seeking prohibitory injunction in respect of the plaint schedule properties. Both the suits were jointly tried by the Trial Court. O.S.No.8/2010 was decreed in favour of the appellants/plaintiffs and O.S.No.14/2012 was dismissed. Defendants 2 and 3 in O.S.No.8/2010 challenged the judgment and decree of the Trial Court in A.S.No.97/2019. The plaintiff and defendant No. 2 in O.S.No.14/2012 challenged the common judgment and decree in A.S.No.98/2019. The First Appellate Court jointly considered both the appeals and allowed A.S.No.97/2019 and dismissed A.S.No.98/2019.

4. Material facts relevant for the adjudication of this appeal are as follows:-

4.1 Smt. Thresiamma @ Mariamma, the mother of plaintiff No.1, on 08.10.1997 executed a settlement deed (Ext.A1) in respect of 23.32 Ares of land. In the earlier part of the settlement deed, the settlor recited that she gifted the property scheduled in the deed to plaintiff No.1. Later, in Ext.A1, the settlor retained right over 2.50 Ares of property out of the above referred 23.32 Ares. The settlor had reserved her right during her life time not only to enjoy the entire income from the property but also the right to alienate it. The settlor bequeathed item No.2 property (1.50 Ares) in favour of defendant No.3 as per Ext.A6 Will and sold 1 Are of land as per Ext.A5 sale deed to defendant No.3.

4.2 The appellants/plaintiffs claimed that they had acquired title over 23 Ares and 32 square metres of land comprised in Re-survey Nos. 235/3/2 and 111/7 of Ezhumattoor Village by virtue of settlement deed No.1607/1997 dated 08.10.1997 of the Sub Registrar’s Office, Vennikkulam (Ext.A1). According to the plaintiffs, the defendants removed the boundaries of the plaint schedule property and attempted to encroach upon it. Accordingly, the appellants/plaintiffs instituted a suit for declaration, fixation of boundary, permanent prohibitory injunction etc. in respect of the plaint schedule property.

4.3. The respondents/defendants resisted the claim of the appellants contending that the appellants have not acquired right over the plaint item Nos. 1 and 2 properties. According to the respondents, the settlor Smt. Thresiamma @ Mariamma had reserved the right to alienate 2.50 Ares of land as per Ext.A1 settlement deed. Smt. Thresiamma @ Mariamma had not divested herself of her entire 23.32 Ares of land in the name of her son T.T. Joseph, the appellant No.1. She had retained 2.50 Ares of land as per Ext.A1. Respondent No.2/defendant No.3 acquired right over the property as per Sale deed No. 1522/1999 dated 07.09.1999 (Ext A5) and Will No. 103/1999 dated 07.09.1999 (Ext A6).

5. The parties went to trial. PWs 1 and 2 were examined, and Exts.A1 to A7 were marked on the side of the plaintiffs. DWs 1 to 3 were examined and Ext. B1 was marked on the side of the defendants. Exts. C1(a) to C1 (c) were marked as Court Exhibits.

6. The Trial Court held that plaintiff No.1 has title and possession over the plaint schedule item No.1 and plaintiff No.2 has title and possession over plaint schedule item No.2. The Trial Court further held that Ext.B1, Will No.103/1999 dated 07.09.1999 and Ext. A5 Sale deed No.1522/1999 of Sub Registrar’s Office Malappally dated 07.09.1999 are not binding on the appellants/plaintiffs. The First Appellate Court modified the decree and declared that the appellants/plaintiffs in O.S.No.8/2010, Shri. T.T. Joseph and Smt. Valsamma Joseph, have acquired right over only 20.82 Ares of the property described in Ext.A1 settlement deed.

7. Plaintiff