The court determined that a plea of recovery of possession is not valid when plaintiffs admit lack of interest, emphasizing the necessity of clear evidence for property identity and proper amendment procedures.

JUDGMENT

The appeal is filed by third parties who were not arrayed as defendants in the proceedings. The appellants claim title under the first defendant in a suit for fixation of boundary and declaration of title. O.S.No.35 of 1985 was instituted on the files of the Munsiff Court, Kayamkulam which resulted in a dismissal of the suit on a categorical admission by the plaintiffs that they do not want any recovery of the property from the first defendant. Accordingly, the suit was dismissed. Aggrieved, they preferred an appeal before the Additional District Court-I, Mavelikara, wherein, an application seeking amendment of the plaint was filed which stood allowed. Though the first defendant raised a contention that the statement made by the plaintiff in the application for amendment is incorrect, it appears that the District Court has proceeded to allow the amendment and proceeded with the matter on merits. Despite the categorical admission made by the plaintiffs while being cross examined, the first appellate court ignored the said admission and granted a decree in favour of the plaintiffs based on the amendment made before the first appellate court. The first defendant in the suit challenged the said judgment and decree in S.A.No.540 of 1992 before this Court. While so, for not impleading one of the respondents therein, this Court dismissed the second appeal on 10.11.2003 for default. In the meantime, the first defendant sold ten cents of property held by him to the appellants herein. The appellants came to know about the proceedings between the plaintiffs and the first defendant, when the execution proceedings were taken out for executing the judgment and decree in O.S.No.35 of 1985. Therefore, they filed a review petition before this Court as R.P.No.522 of 2015 which was disposed of by judgment dated 30.09.2015 giving liberty to the appellants herein to ventilate their grievance in an appropriate proceeding. Thus, the appellants are before this court in the present appeal seeking leave to question the judgment and decree rendered by the Additional District Court-I, Mavelikara. By order dated 18.02.2016, the leave was granted and the appeal was taken on Board.

2. The facts as disclosed in the memorandum of appeal shows that the defendants derived right title and interest over 16 cents of property in Survey No.46/42A, 46/42B and 45/17 of Kayamkulam Village as per the document executed in the year 1968. At the same time the plaintiffs traced their title to the Common predecessor of defendants 1 and 2 as per a sale deed No.4722/1968 executed on the same day i.e., on 28.10.1968. The plaintiffs contended that there is no boundary or fencing, separating A and B schedule properties and hence the plaintiffs demanded the defendants to measure out the property to demarcate the boundary separating both items. The original 1^st defendant resisted the suit contending that the suit is not maintainable and that the description of property shown in the plaint schedule is not correct. It was further contended that the properties comprised in Survey Nos.46/42A, 46/42B and 45/17 belonged to one Kesavan Thankal Narayanan and he had mortgaged the property in favour of strangers and by assignment the same has come into the possession of one Janardanan Unnithan. While so, Narayanan Thankal along with Janardanan Unnithan had executed the sale deed in favour of the defendants 1 and 2 and handed over the possession to them and they have put up a screwpine fence on the west of the boundary. The property situated on the west of that s