The right and title to property should be determined based on title deeds and possession, and the theory of 'error' deduced from Rule 56 of the Kerala Survey and Boundary Rules, 1964 has no application when the right of a party is adjudicated based on title deeds and possession.

JUDGMENT :

This Regular Second Appeal arises from the judgment and decree dated 28.7.2006 in A.S.No.71 of 2003 passed by the Additional Subordinate Judge’s Court, Thalassery. The Appeal Suit arose from the decree and judgment of the Munsiff Court, Kuthuparamba, in O.S.No.141 of 1997.

2. The defendants are the appellants. During the course of the proceedings, the respondent/plaintiff died. His legal representatives were impleaded as additional respondent Nos.2 to 9.

3. The plaintiff instituted the original suit for declaration of title, fixation of boundary and consequential injunction with respect to the plaint schedule property. The plaint schedule property is 15.89 cents of land in Re-Survey No.91/1 (Old Survey No.25) of Payam amsom. The plaint schedule property originally belonged to late Krishnan Nambiar. After his lifetime, his wife Parvathi Amma and defendant Nos.1 to 3, his children and one Velayudhan Nambiar succeeded to the property. A small strip of land on the northern boundary of the property was utilised for the construction of a road. Originally, Krishnan Nambiar had possessed 75 cents of property. Seven cents of land was surrendered for the construction of the northern road. He retained the remaining 68 cents in his possession. The legal representatives of Krishnan Nambiar executed partition deed No.3469/1979, by which the property was partitioned among them. Parvathi Amma, wife of Krishnan Nambiar, received cash in lieu of her share. Thus, the entire 68 cents were shared equally among the other four persons, each obtaining 17 cents. Velayudhan Nambiar and defendant Nos.2 and 3 took their share in single plots measuring 17 cents each. Defendant No.1 took her share in two plots: item No.1, containing 2½ cents, and item No.2, measuring 14½ cents.

4. Even prior to the partition of the property, the plaintiff had entered into an understanding with Sri.Velayudhan Nambiar to buy his entire share of the property. After the partition, the plaintiff purchased the entire 17 cents from Velayudhan Nambiar. Item No.4 in the partition deed was allotted to the share of Velayudhan Nambar. Defendant No.3 had transferred his share in favour of defendant No.4. After the partition, shallow trenches were dug to separate the shares. Defendant No.4 destroyed the trench constructed as the boundary separating the properties of defendant Nos.2 and 3. On 28.2.1998 defendant Nos.1 and 4 to 6 commenced construction of a building on the property. They attempted to meddle with the boundary separating the plaint schedule property from the property of defendant Nos.1 and 3 to 6. The plaintiff intervened, but the defendants destroyed the boundaries. The plaintiff, therefore, instituted the suit initially for fixation of boundary and permanent prohibitory injunction. When the Commissioner submitted Ext.C8 plan, the plaintiff incorporated amendments in the plaint and prayed for declaring his title over the property.

5. The defendants resisted the suit. They pleaded as follows:-

The identity of the plaint schedule property is not clear from the pleading. The allegation that shallow trenches were dug to separate the property allotted to the sharers soon after the partition is incorrect. The averment that the defendants meddled with the boundary marks is baseless. The defendants have no intention to trespass on the plaintiff’s property. The construction of the building was done on the property of the defendants.

6. The trial Court framed the following issues:-

1. What is the correct identity of the plaint schedule property ?

2. Whether the plaintiff is entitled to an injunction as prayed for ?

3. Whether the plaintiff is entitled to a decree for fixation of boundary ?

4. Whether there is any cause of action for the suit ?

5. Whether the trespass alleged is true ?

6. Whether the defendants are entitled to compensatory costs ?

7. Relief and costs ?

7. On the side of the plaintiff PW1 was examined, and Exts.A1 to A3(g) were marked. DW1 was examined, and Exts.B1 to B3