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2025 Supreme(Online)(Ker) 24947
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Easwaran S., J
A.P.SUNDARAN – Appellant
Versus
RAMAKRISHNAN – Respondent
RSA NO. 876 OF 2014
For the Appellants/Petitioners: SRI.P.M.JOSHI, SMT.ELIZABETH KOSHY, SMT.SIJI K.PAUL
For the Respondents: SRI.SAJAN VARGHEESE K., SRI.ABE RAJAN, SRI.LIJU. M.P
A suit for boundary fixation without a recovery claim is not maintainable for extensive properties, and reliance on an invalid Advocate Commissioner's report is insufficient for a decree.
Headnote:(A) Code of Civil Procedure - Section 100 - Suit for fixation of boundary without a prayer for recovery of possession - Maintainability questioned - Court held that such a suit is not maintainable if it involves a large extent of property without a recovery claim, but may be if it concerns a narrow strip. (Paras 14-16)
(B) Advocate Commissioner’s report - Legal validity questioned - Court found that the report lacked evidentiary value as it did not follow the trial court's directive for proper identification of properties. (Paras 22-24)
Facts of the case:
The plaintiff sought a suit against the defendant for boundary fixation and injunction due to alleged encroachment. The trial court granted relief based on the Advocate Commissioner’s report, which was later challenged.
Findings of Court:
The suit was deemed not maintainable without a recovery claim, and the Advocate Commissioner’s report was found legally unsustainable.
Issues: The primary issues were whether the suit for boundary fixation was maintainable without a recovery claim and the legality of the Advocate Commissioner’s report.
Ratio Decidendi: The court ruled that a suit for boundary fixation without a recovery claim is not maintainable for extensive properties and found the Advocate Commissioner’s report insufficient as per legal requirements.
Result: The appeal was allowed, and the previous judgments were set aside, remanding the case for fresh consideration.
| Table of Content |
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| 1. the plaintiff filed for boundary fixation due to alleged encroachment. (Para 2 , 4 , 5) |
| 2. the appellant contends the advocate commissioner's report is erroneous. (Para 8 , 9) |
| 3. the maintainability of the suit without a recovery claim is questioned. (Para 11 , 12 , 17) |
| 4. the court found the advocate commissioner's report lacks evidentiary value. (Para 20 , 21 , 22 , 23) |
| 5. the appeal is allowed, and the case is remanded for fresh consideration. (Para 28) |
JUDGMENT
The appellant herein is the 1st defendant in O.S. No.557 of 2004 on the files of the Munsiff Court, Chittur and the appellant in AS No.136 of 2010 on the files of the II Additional District Court, Palakkad.
2. The brief facts necessary for disposal of the appeal are as follows:
The respondent herein/plaintiff filed O.S. No.557 of 2004 seeking for fixation of boundary, and mandatory and prohibitory injunction directing the appellant/defendant to remove the trees that were planted in the property belonging to the plaintiff. The plaint A schedule property belongs to the plaintiff’s father, Sri. Krishnankutty Ezhuthassan, as per the partition deed No.1615/ 1979 of SRO, Chittur. Consequent to the death of the father of the plaintiff in 1984, the plaint schedule property devolved upon the legal heirs including the plaintiff. The plaint A schedule property contained certain ridges which is shown as plaint B schedule and that there is a clear level difference in between the plaintiff’s and defendant’s property. According to the plaintiff, the defendant's property lies about five (5) feet lower than the plaint A schedule property. On a misconception regarding the right over the property, the 1st defendant trespassed into the property of the plaintiff and planted certain trees and thus encroached into the property of the plaintiff. Thus, the plaintiff sought for a mandatory as well as prohibitory injunction and also for the fixation of the boundary of the plaintiff. The defendant appeared and contested the suit raising the contention that the plaintiff has not chosen to implead the co-owners of the property. The existence of the ridge was also denied by the defendant. It was further contended that the defendant purchased the property by virtue of Ext.B2 deed in the year 1999 and that the property is covered in Resurvey No.284/5 Block No.47. Since the property is in exclusive possession of the defendant, the prayer for fixation of boundary is not maintainable. It was further contended that even if the plaintiff had a right over the portion of the property, the same has been lost due to the adverse possession of the defendant over the last 50 years. Therefore, the defendant prayed for dismissal of the suit.
3. On behalf of the plaintiff Exts.A1 to A4(a) documents were produced before the trial court and PW1 was examined. On behalf of defendant Exts.B1 to B6 documents were produced and DW1 and DW2 were examined. The plaintiff also sought the appointment of an Advocate Commissioner for local inspection. The Advocate Commissioner initially filed Exts.C1 and C1(a) report and rough sketch. Since the said report was incomplete, the trial court appointed a fresh Advocate Commissioner who filed Ext.C2 report and C2(a) survey plan. Dissatisfied with the same, the plaintiff again filed I.A. No.1690 of 2008 wherein the trial court remitted the report of the 2nd Advocate Commissioner with a direction to measure and identify the plaintiff’s and defendant’s property. Accordingly, Ext.C3 report and Ext.C3(a) survey plan were also marked. Additionally, Exts.C4 and C5 were also marked. Exts.X1 to X1(c) were the 3rd party exhibits marked through DW1. The trial court, on appreciation of the documents, framed the following issues:
(1) Whether the plaint B-schedule property is identifiable?
(2) Whether the plaintiff is entitled to get a decree of mandatory injunction as prayed for?
(3) Whether the plaintiff is entitled to get a decree of prohibitory injunction as prayed for?
(4) Relief a
