A suit for boundary fixation is unsustainable without a corresponding claim for recovery of possession in cases where possession is disputed.

JUDGMENT

This appeal has been directed against the judgment and decree in A.S.No.189/2015 on the file of Additional District Court, Irinjalakuda which arose out of judgment and decree in O.S.No.464/2012 on the file of Additional Subordinate Judge's Court, Irinjalakuda.

2. The wife of original defendant is the appellant. The suit is one for fixation of boundary and permanent prohibitory injunction. (Parties would hereinafter be referred as per their status before the trial court).

3. An extent of 1.23 acres of land comprised in survey No.188/7 of Koolimuttam Village was purchased by Andy, the husband of 4th plaintiff and father of plaintiffs 1 to 3. Out of which, 50 cents on the eastern side was sold to the defendant and the balance 73 cents is the plaint 'A' schedule property, which is in absolute possession and enjoyment of the plaintiffs. Out of 50 cents sold to the defendant, he sold 5.875 cents of land in the year 2002 to one Subin and Sujith and the balance 44.125 cents is scheduled as plaint 'B' schedule property. There was a clear boundary separating the plaint 'A' and 'B' schedule properties. Plaintiffs 1 and 3 are residing far away from plaint A schedule property. Of late, defendant is trespassing into plaint 'A' schedule property step by step by destroying its eastern boundary. On questioning the defendant, he proclaimed to trespass again. On the northern side of plaint 'A' schedule property, to a certain extent, the plaintiffs have constructed a compound wall. Defendant has trespassed into the pliant A schedule property and there is every possibility of committing further trespass. Plaintiffs are unable to prevent his acts and hence the suit.

4. Original defendant filed written statement denying the extent of plaint 'A' schedule property described in the plaint. It is admitted that 50 cents of property was purchased from deceased Andy by the defendant as per document No.2834/1984. At the time of purchase of property it was waterlogged area. During that time the defendant had been working at Bhilai Steel Plant, Madhya Pradesh and was staying with his family. Subsequently, he reclaimed the property step by step and a house was constructed during 1987 – 1990. In the said property, on the southern boundary, a chira was constructed and its south a thodu was also made. Coconut trees were planted on the chira and on the south-western part of the property for agricultural purpose arrangements were made and motor-shed and bathroom also constructed. Thereafter, the property has been reclaimed and transformed to the present state by spending huge amount. Different types of trees like jack trees, coconut trees, mango trees were also planted. Apart from the sale of 5½ cents, on the eastern side of plaint 'B' schedule property on the northern boundary on its eastern side a strip of land has been purchased by the defendant as per document No.3342/2011. Without disclosing those facts plaint 'B' schedule property has been described in the plaint incorrectly. Plaint 'A' schedule property is lying in lower level than plaint 'B' schedule property and hence there is no need to fix the boundary of plaint A and B schedule properties. Since plaint 'B' schedule property is situated in a higher level than the plaint 'A' schedule property the averment that defendant is trespassing into plaint 'A' schedule property step by step is false and incorrect. Since the plaint A & B schedule properties are situated in two different levels, it is impossible for the defendant to trespass into plaint 'A' schedule property by destroying the boundaries. The defendant is an old man incapable of doing any act as alleged by the plaintiffs. The plaintiffs have not constructed any compound wall on any portion of plaint 'A' schedule property. But the defendant had constructed compound wall on the northern boundary from about middle of the property towards west till the north-western corner of his property using concrete poles and slabs during 2012. Defendant has not