A trial court must ensure proper identification of property in boundary suits before issuing a dismissal, as prior failure shouldn't hinder justice.

JUDGMENT

The plaintiffs in O.S.No.100/1998, a suit for fixation of boundary and permanent injunction before the Munsiff Court, Thalassery, have come up in the present appeal, aggrieved by the concurrent findings rendered against them.

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

2.1. The plaint schedule property originally belonged to one V.K.Kunhiraman, the father of the original plaintiff. The defendant is the wife of Mr.V.K.Ravindran, the brother of the original plaintiff. Mr.V.K.Kunhiraman had 1 acre and 35 cents of land including the plaint schedule property having an extent of 84 cents. Mr.V.K.Kunhiraman gifted 84 cents in favour of the original plaintiff on 19.02.1972 and the remaining 51 cents were gifted to Mr.V.K.Raveendran, husband of the defendant, on 05.09.1975. Out of 51 cents, 20 cents were sold to one Paloli Seenath and 27

1/ cents to one Abdul Khader and the remaining 3 1/ cents in her

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possession. The defendant filed O.S.No.190/1994 before the trial

court for fixation of boundary and injunction. An Advocate Commissioner was appointed, who filed a report stating that plaintiff is having 84 cents of land. The Advocate Commissioner also fixed the boundary on the western side of the suit property. However, the suit was dismissed and later, the matter was not taken forward.

2.2. The defendant resisted the suit by contending that the original plaintiff is not entitled to fixation of boundary. The total extent bequeathed in favour of the defendant’s husband was having an extent of 67 cents, instead of 51 cents and while the defendant was in possession of the property, 20 cents were sold to one Paloli Seenath and 27 ¹/ cents to one Abdul Khader as per

2 assignment deed dated 16.08.1994. Except on the side of the schedule property, all the other sides of the defendant’s property are having definite compound wall. There was no attempt to make a trespass.

2.3. By judgment dated 13.09.2002, the suit was decreed and the defendant, aggrieved by the same, filed A.S.No.124/2002 and the appellate court set aside the judgment and decree and remitted the matter back to the trial court for a fresh disposal. One of the primary issue directed to be decided on remand, was whether third parties are required to be impleaded in the present suit and to what extent the plaintiff is entitled to relief. On appreciation of the oral and documentary evidence, the trial court came to the conclusion that the plaintiff is entitled to have the boundaries fixed in terms of the Ext.A1 document, but then, the trial court found that, since the report and plan submitted in the earlier suit had not become final and the suit was dismissed, no relief could be granted to the plaintiffs and accordingly, the suit was dismissed. Aggrieved, the plaintiff preferred A.S.No.17/2012 before the Sub Court, Kannur and the first appellate court concurred with the findings of the trial court and dismissed the appeal and hence, the present appeal.

3. On 19.01.2015, this Court while admitting the appeal framed the following substantial questions of law:

i) Whether a suit for fixation of boundary can be dismissed on finding that the Commissioner has not properly identified the property?

ii) Is it not the duty of the court in a suit for fixation of boundary to decide the case either by fixing the boundary or finding that there is no need to fix the boundary as claimed by the plaintiff as there is an existing boundary?

4. Heard, Adv.Rajesh V.Nair - learned counsel appearing for the appellants and Adv.K.Shibili Naha - learned co