The court affirmed the trial court's decision to fix property boundaries based on the Advocate Commissioner's report, ruling the defendants' objections invalid due to inaction.

JUDGMENT

These appeals arise out of the concurrent findings recorded by the Principal Munsiff Court-II, Kozhikode in O.S.No.312 of 2009 and affirmed by the Additional District Court-IV, Kozhikode in A.S.No.51 of 2014 and hence taken up and disposed of by this common judgment. R.S.A. No.629 of 2015 is filed by the defendants 1 to 4 and R.S.A.No.671 of 2015 is filed by the defendants 5 and 6 in O.S.No.312 of 2009.

2. Brief facts necessary for the disposal of the appeals are as follows:

The respondents 1 to 3 – plaintiffs preferred a suit for fixation of boundary. Plaint A and B schedule properties originally belonged to the father of the plaintiffs 1 and 2 and to the 3^rd defendant by partition deed No.2971 of 1954 and sale deeds Nos.820, 821, 822 of 1961. While plaint A and B schedule properties were in possession of one Ayyappan and the third plaintiff, Plaint B schedule property was sold to the father of the defendants as per sale deed No.2573 of 1968 and after his death the property devolved upon the defendants. Out of plaint A schedule property 30.5 cents and 17 cents were assigned to 1^st and 2^nd plaintiffs as per three different deeds and remaining 7.5 cents is still in possession of the 3^rd plaintiff. On the eastern side of the plaint schedule properties a road was constructed by surrender of the property by both plaintiffs and defendants in equal extent. After purchase of plaint B schedule property by the father of the defendants there was a varambu to separate plaint A and B schedule properties in the east west direction. But, due to rain and the act of defendants the said boundary was destroyed. Since the defendants attempted to trespass into plaint A schedule property to annex a portion of plaint B schedule property by constructing a boundary using stones the plaintiffs objected and hence the suit. Defendants 1 to 4 filed a joint written statement the additional D5 to D6 filed another written statement denying the averments contained in the plaint. It was contended that there was a partition among the defendants in the year 2009 and from that date onwards, there was a natural boundary separating plaint A and B schedule properties and accordingly there was no requirement to fix the boundary. On behalf of plaintiffs Exts.A1 to A6 series documents were produced and PW1 was examined. On behalf of defendants Exts.B1 to B3 documents were produced. DW1 and DW2 were examined. Ext.C1 is the report of the Advocate Commissioner. Exts.C1(a) and C1(b) are the plans. The Advocate Commissioner was examined as CW1. The trial court, on an appreciation of the oral and documentary evidence, came to the conclusion that in Ext.C1(a) the Commissioner had fixed ‘CD’ line as the boundary. Since none of the defendants filed objection to the report prior to the trial, the same was accepted and the decree was passed. The defendants 1 to 4 and 5 and 6 filed separate appeals which was taken up and dismissed by common judgment dated 30.01.2015. Hence, the present appeal.

3. Heard Sri.Srinath Girish, learned counsel appearing for the appellants in R.S.A.No.629 of 2015 and Sri.P.V.Anoop, learned counsel appearing for the appellants in R.S.A.No.671 of 2015 and Sri.M.Pramodh Kumar, learned counsel appearing for the respondents/plaintiffs.

4. These appeals were admitted on 28.10.2015 on the substantial questions of law framed in the memorandum of appeals which reads as under:

“1) Whether the Courts below were justified in fixing the boundary of a property with regard to which the plaintiffs have not pleaded correct measurements, extent and boundaries?

2) Whether the Courts below ought not to have at the very least remitted an Advocate Commissioner's report and plan to which the contesting defendants had veh