Title admission by defendants validates survey plan acceptance under civil law.

JUDGMENT

This appeal by the defendants against the judgment of the Addl.

District Court, North Paravur in A.S. No. 88 of 2009 which reversed the findings of the Munsiff Court, North Paravur in O.S. No. 146 of 2006, a suit for recovery of possession and prohibitory injunction.

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

2.1. The plaintiff claimed title over the plaint schedule property item No. 1 as per sale deed No. 1931/1118 (ME). Item Nos. 2 and 3 of the plaint schedule are claimed on the basis of document No. 975/1957. The dispute arose because item No. 3 pathway was being trespassed upon by the defendants. Therefore, the plaintiff filed a suit for recovery of possession and prohibitory injunction. The plaintiff took out an Advocate Commissioner to identify the property with the help of a Taluk Surveyor, and a report was drawn on 14.07.2008 wherein the Advocate Commissioner concluded that an extent of 0.180 cent has been encroached upon towards the eastern side of plaint ‘A’ schedule, item No. 3. The report was supported by a plan drawn by the Taluk Surveyor after identification of the property with the side measurements contained in the title deeds of the plaintiff.

2.2. The defendants resisted the suit by contending that though they have no objection in fixing the boundary of the plaintiff’s property, it must be done with proper parties in the party array and in the absence of neighboring owners, the boundary cannot be fixed on 4 sides. The Trial Court accepted the plea of the defendants and found that inasmuch as Ext. C2(a) sketch shows that the Advocate Commissioner has not given any details regarding the measurement of the properties done by them, the sketch cannot be accepted and accordingly declined the relief for recovery of possession and fixation of boundary but granted an injunction restraining the defendants from trespassing into the plaintiff’s right over item No. 3 of the plaint ‘A’ schedule property. Aggrieved, the plaintiff preferred A.S. No.

88 of 2009 before the Addl. District Court, North Paravoor.

2.3. The First Appellate Court on reappreciation of the evidence, reversed the findings of the Trial Court and granted the decree as prayed for. In doing so, the First Appellate Court found that the right of the plaintiff over item No. 3 property is not disputed by the defendants and the title stands admitted and the measurements done by the Advocate Commissioner with the help of the Taluk Surveyor tallies with the side measurements in Ext. A2 title deed. So much so, the judgment of the Trial Court declining the relief for recovery of possession and fixation of boundary was reversed. Hence, the present appeal.

3. On 30.05.2012, this Court framed the following substantial questions of law;

Whether on the facts and “(i)

circumstances of the case, Courts below erred in accepting Ext. C2(a) plan prepared by the Advocate Commissioner without showing or measuring the adjacent properties?

(ii) Whether a survey plan prepared without complying with the provisions of survey and Boundaries Act are acceptable in evidence by the Civil Courts?”

4. Heard Sri. S. Shyam, the learned Counsel for the appellants and Sri. Anil Kumar, the learned Counsel representing Sri. Alunkal George and Sri. K. Narayanan, the learned Counsel for the respondent.

5. The learned Counsel appearing for the appellants contended that the findings of the First Appellate Court reversing the judgment and decree of the Trial Court is unsustainable inasmuch as the Advocate Commissioner had not measured out the property of the defendants and the neighboring owners. The defendants also raised objection to the report of the Advocate