The main legal point established in the judgment is that the plaintiff's right was extinguished by law, and the suit was a futile exercise.

JUDGMENT :

Prayer: This Second Appeal is filed under Section 100 of the Civil Procedure Code, against the judgment and decree made in A.S.No.59 of 2000 on the file of the Sub Court, Kuzhithurai dated 23.07.2004 confirming the judgment and decree passed in O.S.No.199 of 1995 on the file of the II Additional District Munsif Court, Kuzhithurai dated 30.06.2000.

1. Aggrieved over the concurrent finding of the Courts below, the present second appeal is filed.

2. For the sake of convenience, the parties are referred to herein, as per their rank before the Trial Court.

3. The brief facts, leading to the filing of this Appeal Suit, are as follows:

'A' schedule property originally belonged to one Sam Nadar and Davidson Nadar. 'B' schedule property is only a portion of 'A' schedule property. The Resurvey Authorities have assigned Survey No.27/22B to the said property. The plaintiff has purchased the 'A' schedule property on 23.03.1974. After the purchase, he put up a building and residing therein. The defendants are the owners of the adjacent lands owners. The defendants have constructed a building obstructing to the 'A' schedule property. It is the further case of the plaintiff that in the month of January, 1994, the first defendant put up a construction on the western side occupying a portion of 'A' schedule property. Again on 24.03.1995, the first defendant had expanded the same towards north. Now there is no separating boundary to separate the plaintiff's 'A' schedule property from that of the defendants property. Hence, the suit.

(ii) The suit has been originally filed for demarcation on the basis of resurvey plan in respect of 'A' Schedule property and declaration that the 'B' schedule property is part of the 'A' schedule property and also recovery of 'B' schedule property and removal of structure put up by the first respondent.

4. Before the trial Court, on the side of the plaintiff P.W.1 to P.W.3 were examined and Exs.A1 to A8 were marked and on the side of the defendants D.W.1 and D.W.2 were examined and Exs.B1 to B6 were marked, further Exs.C1 to C4 were marked. Based on the evidence and materials, the trial Court has dismissed the suit and the First Appellate Court has also confirmed the findings of the trial Court.

5. The case of the defendants is that the first defendant has purchased 10 cents immediately west of 10 cents belonging to the defendants 2 to 8 on 12.02.1973. The defendants purchased the said land on 20.11.1972. The first defendant stated that 'B' schedule property is an imagination of plaintiff and there is boundary to separate the plaintiff's plot from that of these defendants property. The plaintiff's property lies in 3 feet lower than the property of the first defendant.

6. The main contention of the learned counsel for the appellant is that the Commissioner's report shows that 20 cents was purchased by the appellant, but now only 19 cents 916 sq.links alone is available. This measurement is as per the resurvey plan. Hence, it is contended that the defendant is in possession of excess extent of land. In the year 1994 itself, the defendants have tried to encroach upon the area, which was opposed by giving complaint thereafter, also the defendants put up construction. It is further submitted that if a decree for demarcation is granted, the entire lis would be settled. Hence, prayed for allowing the appeal.

7. The learned counsel for the respondent submitted that the prayer in the suit is innocuous. Without any notice to other side, resurvey entries have been carried out. The Commissioner's report never considered the lineal measurement found in Ex.A1. Therefore, merely on the basis of resurvey proceedings, the plaintiff cannot seek declaration. The Courts below have rightly found that the plaintiff has not established his case for grating relief of declaration, injunction and recovery of possession.

8. While admitting the second appeal the following substantial questions of law have been framed:

1. Whether the Courts bel