JUDGMENT

This Regular Second Appeal has been directed against the judgment and decree in A.S.No.94/2018 on the file of District Court, Alappuzha which arise out of the judgment and decree in O.S.No.32/2013 on the file of Additional Munsiff's Court, Alappuzha.

2. Appellant is the sole defendant and respondent is the plaintiff. (The parties would hereinafter be referred as per their status before the trial court).

3. The suit was one for declaration and permanent prohibitory injunction. Plaintiff is the absolute owner of plaint schedule item No.1 property which includes garden land and pond. He obtained the same by virtue of Ext.A1 sale deed. On the southern side of the plaint schedule property there is panchayat gravel road and defendant is having 9.75 cents of property on the south of the said road. The plaint schedule property is having an extent of 29.250 cents and during resurvey the extent of property was reduced to 25.3 cents and the defendant's property was increased to 16.3 cents. But plaintiff continues to be in possession of his 29.250 cents. The Complaints filed before the resurvey authorities are in vain. The pond has been wrongfully included in the defendant's property as per the resurvey. Though relief was also claimed with respect to plaint item No.2 property which was refused by the two courts concurrently and it is not further challenged by the plaintiff.

4. Defendant filed written statement denying the plaintiff's right and title over the entire plaint schedule item No.1 property and according to him the pond described is not included in plaint item No.1 property and it belongs to the defendant and is in his possession and enjoyment. He is using the pond for pisciculture and no property was wrongly included in his property as alleged and he claims to be the absolute owner with respect to 16.3 cents of property. The complaint filed by the plaintiff before the statutory authorities claiming right over pond was discarded after due enquiries.

5. PWs 1 to 3 were examined and Exts.A1 and A2 and C1 and C2 series were marked from the side of the plaintiff and Exts.B1 to B4 marked from the side of the defendant. There was no oral evidence from the side of the defendant.

6. The learned Munsiff on evaluation of facts and circumstances and evidence granted perpetual injunction and plea for declaration was refused for the reason that the suit has not been filed within the time after the resurvey proceedings as per the Survey and Boundaries Act. Further finding that the plaintiff could not prove the case with cogent evidence so as to get the relief of declaration of right over plaint item No.2 property, the relief sought with respect to plaint item No.2 property was refused. The plaintiff took up the matter in appeal before the District Court, Alappuzha and as per the impugned judgment the learned District Judge, Alappuzha allowed the appeal and declared that the plaintiff is the title holder in possession of plaint item No.1 property and the relief of injunction granted by the learned Munsiff was also confirmed.

7. Aggrieved by the judgment and decree passed by the first appellate court, defendant came up in this Regular Second Appeal for the various grounds stated in the memorandum of appeal.

8. At the time of admission, this Court formulated the following substantial question of law, which reads thus:

“Is the decree and judgment of the court below unsustainable for not properly considered the period of limitation stipulated in Surveys and Boundaries Act?

9. Adv. Sri. S. Sanal Kumar appears on behalf of the respondent/defendant and lower court records were called for and both sides were heard.

10. According to the learned counsel for the defendant, defendant established through Ext.B2 title deed that he obtained 6 ares of property which is inclusive of paddy land and pond as described in Ext.B2 and he has also been paying tax with respect to 6 ares of property as borne out by Exts.B3 and B4 tax receipts and hence the first appella