Title determination is essential before resolving property boundary disputes, particularly when there are discrepancies between measurements and title documents.

J U D G M E N T

The divergent decree in a suit for fixation of boundary is under challenge by the plaintiff.

2. The plaint 'A' schedule property belongs to the plaintiff as per Ext.A1 Gift Deed of the year 1975 executed by her mother. The property on the immediate east of the plaint schedule property belongs to her under Ext.A2 Gift Deed of the same date executed by her father. Further to the east of the property covered under Ext.A2 is a road. Defendants 1 to 6 are the northern property owners of the plaint schedule property; defendants 7 and 8 are the western property owners. The 9th defendant who is the brother of the plaintiff is the southern property owner. The suit is filed for fixation of the southern, western and northern boundaries of the plaint schedule property.

3. The trial court accepted Ext.C2(a) Commissioner's plan and granted a decree in terms thereof. The appellate court though accepted Ext.C2(a) plan granted a decree for a lesser extent by excluding a portion of the property in respect of which the trial court had granted a decree.

4. Heard Sri.S.Vinod Bhat, learned counsel for the appellant-plaintiff and Sri.Bharathan K.S., the learned counsel for the first respondent-9th defendant on the following substantial question of law :-

“Having found that the description of the property by extent does not tally with the description by side measurements, were the Courts right in having proceeded to decide on the title without framing any issue regarding the same ?

5. The suit as framed is one for fixation of boundary and injunction. Through the Commissioner's report and plan it has come out that the extent of property as described in the document of title does not seem to tally with the side measurements. Though there was no issue on title, the courts proceeded as if it is a suit on title. Since no issue with regard to title was framed, the parties were not conscious of their requirements to adduce evidence regarding title.

6. It has been pointed out that, if the average of the two side measurements as given in Ext.A1 is taken, the total extent would tally with the extent shown in the document, and that if triangulation method is adopted, the extent will be only 40.325 cents. The trial court adopted the former whereas the appellate court accepted the later. It was for the parties to plead and prove with regard to the title. Ext.A8 is the basic document of title. It is tracing title to the same that Ext.A1 Gift Deed was executed by the mother. The mother had executed conveyance of the remaining portions of the property as per Exts.A9 and A10 Gift Deeds. It appears that the total extent does not tally there also.

7. Evidently, the dispute between the parties is with regard to title. Parties are to be granted adequate opportunity to adduce evidence on the issue. The parties could also be permitted to amend their pleadings.

8. The decree passed by the trial court in so far as it relates to the northern and western boundaries were executed. The respective defendants did not choose to file any appeal. In this second appeal the said parties were deleted from the party array at the risk of the appellant. The fixation of boundary with respect to the northern and western boundaries is not liable to be reopened. However, while deciding on the title and identification of the plaint schedule property, the fixation of the northern and western boundary as fixed under the decree need not be reckoned. The learned counsel for the appellant-plaintiff submits that if at all it is found that the northern and western boundaries were wrongly fixed and that the plaintiff was entitled for further property on the north and the west, the plaintiff is not seeking for a re-fixation of boundaries on those sides, but is agreeable to suffer the loss. Resultantly, this appeal is allowed. The decree and judgment of the Courts in so far as it relates to fixation of the southern boundary of the plaint schedule property is set aside. The suit is remanded back to