Appeals regarding property boundary fixation affirmed; evidentiary findings of lower courts upheld.

JUDGMENT

This appeal arises from the concurrent finding of the Munsiff Court, Kottarakkara in O.S. No.254 of 2011, and affirmed by the Sub Court, Kottarakkara in A.S. No.64 of

2017.

2. The appellant is the 1^st defendant and a counter claim plaintiff in a suit for injunction and fixation of boundary. The 1^st respondent/plainti for injunction seeking to restrain the appellant/1^st defendant from trespassing into the plaint schedule property. Since there was a dispute as regards the boundary of the plaintiff and the 1st defendant, the 1st defendant, in her written statement raised a counter claim for fixation of boundary. Based on the pleadings, the trial court framed the following issues for consideration :-

“1. Is the plaintiff entitled to get a decree of permanent prohibitory injunction as prayed ?

2. Is the counter claim plaintiff/defendant is entitled to get a decree of declaration declaring the title and possession of counter claim plaintiff over the counter claim A schedule property ?

3. Is the counter claim plaintiff entitled to get a decree of fixation of boundary between counter claim A and B schedule properties and allowing the counter claim plaintiff to put up boundaries on the eastern side of counter claim A schedule property ?

4. Is the counter claim plaintiff entitled to get a decree of permanent prohibitory injunction as prayed ?

5. Is the counter claim plaintiff entitled to get recovery of possession as prayed ?

6. Relief and costs ?”

3. On behalf the plaintiff, Exts.A1 to A9 documents were produced and on behalf of defendants, Exts.B1 to B7 were produced. PW1 to PW3 were examined on behalf of the plaintiff, and DW1 and DW2 on behalf of the defendant. Exts.C1 to C11 are the series of mahazars, reports and plans filed by the Advocate Commissioner.

CW1 to CW6 were examined as Court Witnesses.

4. The dispute before the trial court centered around the fixation of boundary of counter claim A schedule property. In order to fix the boundary, the trial court relied on Ext.C8 plan and report of the Advocate Commissioner. The plan was accepted on examination of CW3. The trial court accordingly proceeded to decree the suit and the counter claim in part and restrained the defendant from trespassing into the property identified by the Advocate Commissioner in Ext.C8 plan. The boundary between counter claim A schedule property was fixed in accordance with Ext.C8 plan. The defendant, though raised an objection to the report and plan by filing an interlocutory application for setting aside the same, it appears that the same was dismissed on the date of the judgment. Aggrieved, the defendant preferred A.S. No.64 of 2017 before the Sub Court, Kottarakkara. The First Appellate Court, on a re-appreciation of the evidence, came into a conclusion that the findings of the trial court as regards the fixation of boundary by Ext.C8 plan was perfectly correct and does not call for interference. Hence, the present appeal.

5. Heard Sri. Nirmal V. Nair, learned counsel appearing for the appellant and Sri. A. Ahzar, learned counsel appearing for the 1^st respondent.

6. The learned counsel for the appellant pointed out that the fixation of boundary ordered by the trial court in terms of Ext.C8 plan is erroneous. The property was correctly identified by the Commissioner in Exts.C1 to C3. CW3 who was examined to prove Ext.C8 had clearly deposed that he does not remember as to whether he had measured the property in terms of the title deed. Therefore, the case projected by the learned counsel for the appellant that the identification of the property by the Advocate Commissioner in Ext.C8 plan is erroneous. He further pointed out that an application for setting aside the report and plan and also for remitting the report of the Advocate Commissioner was preferred, which was dismissed on the date of the judgment and therefore, the trial court erred in passing the impugned decree.

7. Per contra, Sri. A. Ahzar, the learned counsel appearing for the