A decree for declaration of title cannot be granted if the property identity is misdescribed in the title deed, requiring rectification and clear evidence.

JUDGMENT :

Ziyad Rahman A.A., J.

This Regular Second Appeal is submitted originally by the defendants 2 and 3 in O.S.No.316/1984 on the files of the Munsiff Court, Kottarakkara, which was filed by the original respondent herein, who died during the pendency of the second appeal. The suit was decreed in favour of the plaintiff against which, A.S.No.19/1990 was filed which was dismissed by the Sub Court, Kottarakkara on 22.10.2002 confirming the judgment and decree passed by the Munsiff Court, Kottarakkara. This Second Appeal is submitted against the same. (The parties are hereinafter referred to as per their status in the Original Suit.)

2. The suit was filed by the plaintiff for declaration of title and possession of the plaintiff over the plaint schedule properties and also for fixation of boundary on the north-west of plaint A schedule properties separating the properties of the defendants and also on the south-west of ‘B’ schedule properties belonging to the plaintiff separating the properties of the defendants. Consequential permanent prohibitory injunction was also sought.

3. The plaint averments were as follows:

The plaintiff and the 1st defendant are sisters and the 2nd defendant is their brother. The 3^rd defendant is the daughter of the 1^st defendant (The 3^rd defendant was initially not in the party array and she was impleaded based on the pleading of the 1^st defendant that the subject property is transferred by the 1^st defendant in favour of the 3rd defendant). The plaintiff is in possession and enjoyment of the plaint schedule properties, which she secured by way of the partition deed No.66 dated 6.1.1971 executed between the parties. Out of 1 acre 20 cents of properties which includes plaint A schedule property, the property having an extent of 80 cents was sold by the plaintiff to a third party and the remaining property having an extent of 40 cents is in possession of the plaintiff, which is included in plaint A schedule. Apart from the above, 20.25 cents of land was also secured by the plaintiff as per the said partition deed which is shown as plaint B schedule property. The western and northern side of the plaint A schedule properties are the properties of the 2^nd defendant and the 1^st defendant respectively. The southern side of plaint B schedule property is the property of the 2^nd defendant and on the western side of the property is the property of the 1^st defendant. It is averred that, there are survey stones separating the plaint schedule properties. However, the defendants are obstructing the plaintiff from putting up boundary and they are attempting to trespass into the plaint schedule properties. The suit was filed in the said circumstances.

4. The 2nd defendant filed a written statement contending that the plaint schedule shown is not correct. The suit is bad for non-joinder of necessary parties, as the persons to whom the plaintiff sold her property is a necessary party to the suit. The 1^st defendant sold the property obtained by her as per the partition deed to her daughter and the 1^st defendant has no property. The 2^nd defendant is in possession and enjoyment of 20.25 cents of land on the southern side of the plaint schedule property comprised in Survey No.7/1A obtained by her as per partition deed. The 2^nd defendant is in possession and enjoyment of 82 cents and excess land in Survey No.7/1A/29 as per settlement deed No.5895 of the year 1119 of Malayalam Era and the said property is clearly separated by boundaries. According to the said defendant, the properties are well demarcated and the 2^nd defendant resisted the attempt of the plaintiff to start an Arrack Shop in the plaint A schedule p