In property disputes involving partition, precise identification of property boundaries is essential; misidentification can undermine claims and necessitate remand for proper assessment.

JUDGMENT :

EASWARAN S., J.

The defendants 2 to 6 in O.S. No. 445 of 1995 in the files of the Principal Munsiff Court, Nedumangad are the appellants. The suit is for declaration, injunction and fixation of boundary.

1.1. The plaintiff traced the title through a Partition Deed executed in the year 1954 as per which, the 10^th schedule was allotted to him. The property included as the 10^th schedule in the Partition Deed is included as ‘A’ schedule to the plaint. The ‘B’ schedule property is the residential property situated in ‘A’ schedule. The plaintiff, having secured appointment in the military service, left for his employment and the 1^st defendant, the brother, was entrusted to look after the property in the absence of the plaintiff. The construction of the building in the property was done by expending the money sent by the plaintiff to his father and brother. After the marriage of his brother, when the plaintiff had to join back in the military service on expiry of leave, he requested the 1^st defendant and his family to stay along with his wife. Thereafter, when the plaintiff requested the defendants to vacate the building, it was refused and hence the suit for declaration and for direction for recovery of plaint ‘B’ schedule residential building. Subsequently, by order dated 10.11.2003 in I.A. No. 3745 of 2003, the prayer for fixation of boundary was also incorporated by amendment.

1.2. The defendants 1 to 6 resisted the claim contending that the plaintiff is not entitled for the declaration as prayed for on the ground that the description of the property is incorrect. It was further contended that the possession of defendants 1 to 6 over the plaint schedule property is adverse to that of the plaintiff and, therefore, they have perfected the title. All sharers under the Partition Deed had taken possession of their respective shares and that the plaintiff alone did not take possession of the property. The alleged entrustment to the 1^st defendant as regards the plaint schedule property was denied. It was further contended that 70 cents comprised in Re-Sy. No. 2549/2 was set apart for one Suseelamma, the sister of the plaintiff and the 1^st defendant as 7^th schedule in the partition deed. The property of the plaintiff is situated on the southern side of the property allotted to Suseelamma and the 1^st defendant married the 2^nd defendant in the year 1960 and the 2^nd defendant is None other than the sister-in-law of Suseelamma. By mutual consent between the parties, the defendant came into possession of 70 cents allotted to Suseelamma in the 7^th schedule and thereafter, the 1^st defendant had put up a residential building in the aforesaid extent. It is further contended that, going by the Partition Deed, there is no such property as described in the plaint.

1.3. Defendants 7 to 9 remained ex parte and the 10^th defendant did not raise any claim over the plaint schedule property. On behalf of the plaintiff, Exts. A1 and A2 were produced and PW1 to PW3 were examined. Exts. C1, C1(a) and C1(b) are the reports and plan of the Advocate Commissioner. On behalf of the defendants, Exts. B1 to B4 and C2 were produced and DW1 to DW4 were examined. The Trial Court framed the following issues;

“1. Whether the plaint schedule description is correct?

2. Whether the plaintiff has got title and possession over the plaint schedule property?

3. Whether the plea of adverse possession and limitation set up in the written statement is sustainable?

4. Whether the plaintiff is entitled to the declaration as prayed for?

5. Whether the plaintiff is entitled to recover possession of B schedule building from the defendants?

6. Whether the injunction prayed for is allowable?

7. Reliefs