In boundary disputes, entitlement may prevail without a possession claim if evidence supports prior possession.

JUDGMENT :

EASWARAN S., J.

1. The defendants in a O.S. No. 1343 of 2009 in Munsiff Court, Thrissur are the appellants.

2. Brief facts necessary for the disposal of the appeal are as follows:

2.1. The plaintiffs filed the suit for fixation of boundary and injunction. By registered Assignment Deed No. 1742 of 2006 dated 24.04.2006, the plaintiffs got right, title and interest in respect of the property. The Assignment Deed was executed in favour of the plaintiffs by one Sri. Joshy on 24.04.2006. According to the plaintiffs, the 1^st defendant is having a property on the eastern side of the plaint schedule property. The 2^nd defendant’s property is lying on the western boundary. The 1^st defendant is the son of the 2^nd defendant, and they are residing together. According to the plaintiffs, there is a pathway on the south side of the plaint schedule property which is used to reach the plaint schedule property and also the property of the defendants. On the northern side of the plaint schedule property, there is an iron fencing. The plaintiffs are residing at Alapuzha. During April, 2009, when the plaintiffs came to the property to measure it, the 2^nd defendant obstructed, and the plaintiffs returned. Taking advantage of the absence of the plaintiffs in the plaint schedule property, the defendants removed the concrete poles fixed on the east, south and west of the plaint schedule property and attempted to trespass and remove the soil from the plaint schedule property. The defendants resisted the suit contending that the plaintiffs are not in possession of the plaint schedule property. O.S. No. 659 of 2009 is a suit for cancellation of a document executed by the 1^st defendant in O.S. No. 1343 of 2009 in favour of Sri. Joshy which is pending and hence any subsequent sale by Sri. Joshy in favour of the plaintiffs, has no consequence. According to the defendants they did not intend to convey right, title and interest of the property to the said Joshy and document was executed only as a security document. On behalf of the plaintiffs, Exts. A1 to A4 documents were produced and PW1 and PW2 were examined. On behalf of the defendants, Exts. B1 and B1(a) documents were marked and DW1 and DW2 were examined. Exts. C1 is the report of the Advocate Commissioner and C1(a) is the rough sketch.

2.2. The Trial Court on appreciation of oral and documentary evidences came to the conclusion that the plaintiff have not established the possession of the plaint schedule property especially in the light of the oral testimony of DW2, the Advocate Commissioner. Aggrieved the plaintiff preferred A.S. No. 251 of 2014 before the Additional Sub Court-II, Thrissur. The First Appellate Court vide judgment dated 15.06.2017, reversed the findings of the Trial Court and allowed appeal, decreed the suit in terms of C1 report and C1(a) rough sketch. While reversing the judgment and decree, the First Appellate Court found that the defendants did not filed any objection to the report of the Advocate Commissioner and that the appreciation of the evidence by the Trial Court is perverse. Aggrieved by the judgment and decree of the First Appellate Court, the defendants have come up in the present appeal.

3. On 25.07.2024, this Court while admitting the appeal framed the following question of law:

Whether there is any perversity in the judgment of the First Appellate Court reversing the judgment of the trial Court finding possession with the defendants and finding no cause of action for the plaintiff?

4. Heard Sri. K. B. Gangesh, the learned Counsel appearing for the appellants and Sri. Asok Kumar P Kodath, the learned Counsel appearing for the respondents/plaintiffs.

5. The learned Counsel for the appellants, Sri. K.B. Gangesh sub