Boundaries prevail over measurements in property disputes, and the burden of proof rests on the plaintiff to establish title in declaratory suits.

J U D G M E N T

The plaintiff in OS No.484/2002 on the files of the Munsiff’s Court, Adoor, a suit for declaration of title, possession, mandatory injunction, putting up of boundary, recovery of possession and perpetual prohibitory injunction, is the appellant herein.

2. The brief facts necessary for the disposal of the appeal are as follows:

By Ext.A11 document of 1117 ME, an extent of 76‰ cents of land was purchased by the plaintiff and her mother. Later, on 12.3.1986 as per Ext.A1, the property was partitioned and the plaintiff was allotted item No.4 in the said partition deed. According to the plaintiff, she has got an extent of 76‰ cents of property by virtue of Ext.A1. Item No.4 scheduled to Ext.A1 describes that though the extent is 30.40 Ares, on measurement it was found that only 50 cents was available. Later, a portion of the plaint schedule property was acquired for Omalloor-Kulanada public road and thus the property was divided into two. Out of the 76‰ cents, a portion of the property went to the southern side of the road and the balance portion to the northern side. The plaintiff even though put up boundary on the northern side of the road but could not put up boundary to the property situated in the southern side of the road because of the objection raised by the defendants. After the institution of the suit, the defendants constructed a compound wall and trespassed into the property of the plaintiff and therefore, the plaint was amended seeking a prayer for recovery of possession. The defendants entered appearance and contested the suit and contended that the plaintiff has no right title or interest over the property. It was contended that the defendants are in undisputed possession of the property and that the plaintiff did not object to the defendants putting up the compound wall. Though the possession of the property was asserted, the defendants did not adduce any evidence to support their contention. The appellant/plaintiff took out an advocate commissioner and the advocate commissioner identified the property having an extent of 7.241 cents, which lies in the southern side of the road and accordingly filed his report. On behalf of the plaintiff, Exts.A1 to A11 were produced and PW1 was examined and on behalf of the defendants, Exts.B1 to B4 were marked and DW1 was examined. Exts.C1 to C6 were marked as court exhibits.

3. The trial court, on appreciation of the oral and documentary evidence, decreed the suit and ordered recovery of possession in respect of the plaint schedule property marked as GJHK in Ext.C5 plan and consequently mandatory injunction was also issued. Aggrieved by the judgment and decree, the defendants filed AS No.57/2006 and the District Court, Pathanamthitta by judgment dated 30.06.2011, allowed the appeal and dismissed the suit, against which the plaintiff has come up in the second appeal.

4. The appeal was admitted to file on 16.02.2012 and the following substantial questions of law have been framed by this Court:

“I. Whether the lower appellate court has erred in law by interpreting Ext.A1, partition deed relying solely on the entry therein that the property measures 50 cents; overlooking other particulars stated in the said document like survey number, boundaries, extent mentioned in the prior title deed and also an entry regarding extent that the property is 30.40 Ares?

II. Has not the lower appellate court erred in law by inferring that the rights of plaintiff over a portion of 76.50 cents of property in Sy. No. 230/9B covered by Ext.A11, sale deed No.3638/1117 ME is lost following execution of Ext.A1, partition deed allotting entire suit property to her?

III. Whether the lower appellate court