In cases of boundary disputes involving claims of encroachment, the court must ensure accurate demarcation of the total property area before awarding recovery of possession and mesne profits, as the burden of proof for the specific encroachment area rests on the claimant.

JUDGMENT :

R.SAKTHIVEL, J.

Feeling aggrieved by the Judgment and Decree passed by 'the Subordinate Court, Thiruvarur' ['First Appellate Court' for convenience] in A.S. No. 19 of 2004, wherein and whereby the Judgment and Decree passed in O.S. No. 109 of 2002 by the 'learned District Munsif cum Judicial Magistrate, Nannilam' ['Trial Court' for convenience] was confirmed, the defendant in the Original Suit who is the appellant in the Appeal Suit, has come up with this Second Appeal.

2. For the sake of convenience, the parties will hereinafter be referred to as per their array in the Original Suit.

3. Short facts pleaded in the plaint are as follows:

3.1. Case of the plaintiff is that an extent of 20 Cents Nanja Land in Survey No.26/5A of Achuthamangalam Village was originally owned by Murugaiya Pillai, who sold the said property to the defendant vide Sale Deed dated May 07, 1969. On August 21, 2000, out of the said 20 Cents, the defendant sold an extent of 12 1/3 Cents on the western side of the said property, along with the mangalore-tiled house thereon, in favour of the plaintiff. The eastern side of the said property remained with the defendant, which the defendant has failed. When the plaintiff was out of station, on April 30, 2002, the defendant encroached upon a portion of the plaintiff’s property on its eastern side by extending his fence. The extent of encroachment is East- West 19 feet and North-South 88 feet. The encroached portion is described as the suit property herein. The plaintiff took steps to measure the suit property through a surveyor; however, the defendant did not allow the same. Hence, the plaintiff has filed the Suit for recovery of possession, mesne profits under Order XX Rule 12 of 'the Code of Civil Procedure, 1908' ('C.P.C.' for short), and costs.

4. Brief facts stated in the written statement filed by the defendant are as follows:

4.1. Case of the defendant is that the defendant did not encroach upon any portion of the plaintiff's land. At the time of the Sale Deed dated May 07, 1969 itself, a north-south fence was laid in the aforesaid 20 Cents of Nanja Land to demarcate the plaintiff's portion and the defendant's portion. The north-south fence was 6 feet away from the eastern side of the house on plaintiff's portion. Further case of the defendant is that a water channel runs abutting the northern side of the aforesaid 20 Cents of Nanja Land and a drainage channel runs abutting its southern side. Soil erosion took place due to the heavy flow of water during rainy season in the northern side water channel and consequently, portion of land on the northern side merged with the northern side water channel. In other words, the width of the water channel on the northern side elongated shrinking the plaintiff and defendant's land mass. The said fact came to light only when Advocate Commissioner along with Surveyor measured the aforesaid 20 Cents of Nanja Land. The plaintiff is wrongfully claiming the extent which eroded into the northern side water channel from the defendant. The plaintiff ought to have filed a Suit against the State of Tamil Nadu. As State of Tamil Nadu is a necessary party, the Suit is liable to be dismissed on the ground of non-joinder of a necessary party. The plaintiff is well aware of the fact that he is entitled only to 6 feet towards the east from his house. The plaintiff suppressed many material facts and filed the Suit. Therefore, the defend