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2014 Supreme(Online)(KER) 15046
HIGH COURT OF KERALA
N.K.BALAKRISHNAN, J
KATHIRUMMAL CHIRAMMAL KARTHYAYANI – Appellant
Versus
CHANDRAMATHI – Respondent
REGULAR SECOND APPEAL 1291/2012
A suit for fixation of boundary is maintainable without a prayer for recovery of possession, with title presumed to extend to established boundaries.
Headnote:
Boundary - Fixation of boundary - Code of Civil Procedure, 1908 - Section 9 - The court examined the maintainability of boundary fixation suits absent a recovery possession request, affirming that such suits are valid and awarding title and boundary to plaintiff.
Fact of the Case:
The suit involved a boundary dispute between the appellant and respondents concerning the western boundary of the respondents' property, where the trial court dismissed the appellant's complaint but the appellate court ruled in favor of the respondents.
Finding of the Court:
The appellate court's decision to grant a decree for boundary fixation was based on the title established by the respondents and the presumption of possession extending to the boundary as per a the survey.
Issues: Whether a suit for boundary fixation is maintainable without a claim for recovery of possession.
Ratio Decidendi: The court held that a suit for boundary fixation can proceed without a recovery of possession claim and that possession can be presumed in relation to established title.
Final Decision: The appeal is dismissed, affirming the respondents' title and boundary.
J U D G M E N T
The defendant is the appellant. The suit OS No.74/1998 was filed for fixation of the western boundary of the plaint schedule property. The aforesaid suit was tried along with O.S. No.6/1998. There, the appellant was the plaintiff, but the defendant was stated to be the respondent's brother's son. The trial court granted a decree in OS No.6/1998 against the defendant therein. The suit OS No.74/1998 filed by the respondent for fixation of boundary was dismissed.
2. Evidence was recorded in OS No.6/1998. The appellant herein was examined as PW1 and Exhibits A1, A2 and A2(a) were marked. Exhibits B1, B2 and B2(a) were marked on the side of the respondents herein. The Commissioners report and plan were marked as Exhibits C1 R.S.A.No.1291/2012 :2 :-
to C6. The 1st respondent was examined as DW2 and the defendant in O.S. No.6/1998 was examined as DW1.
3. No appeal was filed by the defendant in O.S.
No.6/1998. But, that will not in any way affect the case of the appellant or the respondents in this case.
4. The trial court dismissed OS No.74/1998. The plaintiff therein filed appeal. The appellate court reversed the finding of the trial court and granted a decree in favour of the respondents. The western boundary of the respondents property was fixed along 'EF' line shown in Ext.C6 plan.
5. The learned counsel for the appellant submits that the appellant who was examined as PW1 had a definite case that her property extends up to the 'chal' and the ridge on the eastern side of the property and so the findings entered by the appellate court that the boundary of the respondents' property should be along the 'EF' line, cannot be accepted at all. Simply because resurvey was conducted and a plan was drawn by the Survey Authorities, it cannot be said that the appellant's property does not extend up to the dotted line shown by the Commissioner, which is actually the natural boundary of the property, it is argued. In fact, the Advocate Commissioner or the Surveyor R.S.A.No.1291/2012 :3 :-
could not trace out the survey stones anywhere near the property and so the re-survey line fixed by the Surveyor and the Advocate Commissioner cannot be made use of to contend that the respondents' property, which is lying to the east of the appellant's property, extends up to 'EF' line, it is further argued.
6. The learned counsel for the appellant Mr.Satheesan Alakkadan further argues that since the trial court has found that the appellant's property extends up to the 'chal' and the ridge, the appellate court was not justified in reversing the finding purely based on the survey plan which was produced by the Advocate Commissioner. It is also argued that when there is a clear boundary on the western side of the respondents' property, which is the eastern boundary of the appellant's property, there is absolutely no necessity to fix a boundary again as sought for by the respondents. It is also contended that the respondents have no specific case that they are in possession of the disputed blue shaded property and so without a prayer for recovery of possession, the appellate court is not justified in granting a decree for fixing the boundary along the 'EF' line, which would enable the respondents to get possession of the blue shaded plot marked by the Commissioner in Ext.C6 plan.
R.S.A.No.1291/2012 :4 :-
7. The substantial question of law framed in this appeal is:
“Whether the suit for fixation of boundary is maintainable without a prayer for recovery of possession ?”
8. The extent of the disputed blue shaded portion is only
0.544 cents (0.0022 hector). Inclusive of the blue shaded plot the extent of property claimed by the plaintiff is only 9.241 cents. There was no necessity for the plaintiff's to have the property of defendants measured. It was pointed out by the learned counsel for respondents that in evidence it was admitted by PW1 (the appellant herein) that she is not in possession of the property comprised in Sy.No.71/2 which is corresponding to the ne
