IMPORTANT POINT
Co-owners can maintain a suit for recovery of possession against third parties, and the decree benefits all co-owners despite non-joinder of some parties.

JUDGMENT :

PRAYER: Second Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree made in A.S.No.31 of 1998, dated 9.7.2007, on the file of Subordinate Judge, Padmanabhapuram confirming the judgment and decree made in O.S.No.82 of 1994, dated 17.12.1997, on the file of Additional District Munsif, Padmanabhapuram.

The Second Appeal is directed against the judgment and decree made in A.S.No.31 of 1998, dated 9.7.2007, on the file of Sub-ordinate Judge, Padmanabhapuram confirming the judgment and decree made in O.S.No.82 of 1994, dated 17.12.1997, on the file of Additional District Munsif, Padmanabhapuram.

2. The defendants in the suit are the appellants. The respondents-Plaintiffs filed a suit seeking recovery of possession, mesne profits and decree for putting up southern fence on ‘AH’ line in the southern limits of the suit property as indicated in the plan as appended with decree in O.S.No.232 of 2009.

3. The suit was decreed by the trial Court and aggrieved by the same, the defendants preferred an appeal and the First Appellate Court affirmed the findings of the trial Court. Aggrieved by the concurrent findings of the Courts below, the defendants are before this Court.

4. According to the respondents/Plaintiffs, their right over the suit property was declared by the judgment and decree passed in O.S.No.203 of 1972 between the present plaintiffs and the defendants. The said judgment and decree was confirmed by the High Court in S.A.No.2053 of 1981. It was further claimed by the plaintiffs that after declaring the title of the plaintiffs, they were relegated to file a separate suit for recovery of possession and hence, the present suit was laid seeking possession and other reliefs. The suit was resisted by the defendants by claiming title over the suit property under sale deed, dated 13.12.1967. The defendants also claimed that though the title of the defendants was upheld in the earlier litigation in O.S.No.203 of 1972, the judgment and decree passed in the suit was erroneous one. The defendants asserted their possession from 1967. The defendants also raised the plea of adverse possession from 13.12.1967. The defendants raised the plea of non-joinder of necessary parties and sought for dismissal of the suit.

5. The sixth plaintiff in the plaint was examined as P.W.1 and four documents were marked on the side of the plaintiffs as Ex.A1 to Ex.A4.The first defendant was examined as D.W.1 and three documents were marked on the side of the defendants as Ex.B1 to Ex.B3.

6. The trial Court, on appreciation of oral and documentary evidence available on record, came to the conclusion that the plaintiffs were entitled to the decree as prayed for. Aggrieved by the said judgment and decree, the defendants preferred an appeal in A.S.No.31 of 1998, on the file of Sub-Court, Padmanabhapuram. The First Appellate Court affirmed the findings of the trial Court and dismissed the appeal. Aggrieved by the concurrent findings of the Courts below, the defendants are before this Court by filing the present Second Appeal.

7. At the time of admission, this Court formulated the following substantial questions of law, by order, dated 06.06.2024:

a) Whether the Courts below are justified in granting a decree for recovery of possession only based on Ex.A1 to Ex.A4 when the title of the plaintiffs over the suit property was not declared under the said document?

b)Are the Courts below correct in granting to the plaintiffs a decree for a larger relief, namely, permission to put up boundary wall, while what the plaintiffs have asked for in the plaint is a smaller relief, namely, permission to put up only boundary fence?

8. The learned counsel for the appellants vehemently contended that in the earlier litigation between the parties, the title of the plaintiffs over the suit property was not declared and hence, the present suit based on the averment that title of the plaintiffs was declared in the earlier litigation is contrary to the evid