In boundary disputes, both properties must be scheduled; failure to do so undermines claims for title and possession.

J U D G M E N T

This Regular Second appeal is directed against the judgment and decree dated 16.3.2018 in A.S.No.82/2016 on the file of the Sub Court, Perumbavoor, (hereinafter referred to as 'the first appellate court') which arose from the judgment and decree dated 22.12.2015 in O.S.No 117/2012 on the file of the Munsiff's Court, Perumbavoor (hereinafter referred to as 'the trial court'). The appellants in the appeal are plaintiffs in O.S.No.117/2012 and the respondent is the defendant therein. The parties are hereinafter referred to as 'the plaintiff' and 'the defendants' according to their rank in the trial court unless otherwise stated.

2. The suit was one for fixation of boundary, declaration of title, recovery of possession, both mandatory and permanent prohibitory injunction. The trial court decreed the suit in part directing the defendant by a mandatory injunction to remove the construction made in the respective plaint schedule property. The defendant was also restrained by a decree of permanent prohibitory injunction from trespassing into the properties of the plaintiff. However, the prayer for fixation of boundary was declined. The plaintiffs did not prefer any appeal challenging the findings of the trial court. However, the defendant appeals. The first appellate court allowed the appeal and dismissed the suit. The divergent judgments of the two courts below are under challenge in this appeal.

3. The plaintiffs and the defendant are siblings. The mother of the plaintiffs and the defendant was the owner in possession of 52 cents of property comprised in Sy.Nos.361/2 and 361/3 of Vazhakkulam Village. Out of the 52 cents of property referred to above, 10 cents of property was settled in favour of the defendant and the residual property was settled in favour of the plaintiffs by their mother by Document No.5564/2011 of Perumbavoor Sub Registrar Office. The respective property of the plaintiff was included as plaint 'A' schedule property. The defendant is admittedly residing in the north western side of the plaint 'A' schedule property. The plaint A schedule property was, in fact, segregated from the property of the defendant by height difference. It is alleged that on 28.3.2012, the defendant commenced construction of a foundation after encroaching into the plaint 'A' schedule property on its western side. Resultantly, the suit was instituted before the trial court. An Advocate Commissioner was appointed to prepare a mahazar and plan with the assistance of surveyor. The Commissioner submitted the plan and report before the trial court. Relying on the Commissioner's report, the plaintiff sought to amend the plaint wherein the portion encroached by the defendant was shown as plaint 'B' schedule. A mandatory injunction was sought for with a direction to the defendant to demolish the cattle shed and to hand over vacant possession of the plaint 'B' schedule property to the plaintiffs. A relief of declaration of title was also prayed for along with a prayer for permanent prohibitory injunction restraining the defendant from trespassing into the plaint schedule property. 4. The defendant filed written statement and additional written statement contending that the description of the plaint schedule property is incorrect and the plaintiffs had not obtained properties lying in Sy.No.361/2. According to the defendant, an area of 8.20 ares of land lying in Re-Sy.No.361/2 is in the absolute possession and enjoyment of the defendant. According to them, the house of the defendant is situated on the northern side of the aforesaid 8.20 ares and the cattle shed is situated on its southern side. The plaintiffs filed the suit for fixation of boundary of the property over which they have no right at all. The defendant contended that the entire property lying in Re.Sy.No.361/2 is in the possession of the defendant even prior to Document No.3214/2000. It was further contended that the defendant had constructed granite stone foundation throu