A plaintiff can succeed on a lesser claim for boundary fixation even if larger claims are dismissed if possession is substantiated.

J U D G M E N T

The 1^st appellant is the plainti permanent prohibitory injunction and fixation of boundary. The 1^st appellant has been concurrently non-suited by the courts below because she failed to substantiate the claim for fixation of boundary.

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

The plaint A schedule property initially belonged to the twin thavazhi namely Thottoli and Kappacheri Thottolil and the said property having a larger extent with a house was kept in common as per a Partition Karar No.2249/1122 M.E of SRO Chokli. The total extent so kept in common was 1.01 acres, situated in R.S No.93/3. Out of 1.01 Acres, 40½ cent was given to the 1^st defendant in 1949 and 29 ½ cents to one Kumba Amma, the paternal grand mother of defendants 4 and 5, by the then karanavar of the thavazhi. The balance extent of 31 cents of land was with both the thavazhi members and the plaintiff is the member of Thottolil Thavazhi. The plaintiff obtained an assignment of right of other sharers as per a jenm assignment deed No.45/96 of SRO Chokli and a release deed No.190/2001 of SRO Chokli and thus she is in an exclusive possession of the plaint A schedule property. The plaintiff later availed a loan from the Kodiyeri Service Co-operative Bank. The property obtained by the 1^st defendant as per marupat No.1235/49 of SRO Chokli is shown as the plaint B schedule property and the property given to the above said Kumba Amma as per document No.1243/49 is C schedule property. It is stated that the old house in the plaint A schedule property is in a dilapidated condition and had collapsed four years back and on 07.07.2001, defendants 1 to 3 attempted to trespass into the western portion of the plaint A schedule property. There is no boundary demarcating the plaint A and C schedule properties and defendants 4 and 5 are presently in possession of the plaint C schedule property. Therefore, the plaintiff prayed that the decree be passed for fixation of boundary between the plaint A schedule property and that of the plaint B and C schedule properties and also for an injunction restraining the defendants from trespassing into the plaint A schedule property.

2.1. The defendants entered appearance and contested the suit by contending that the defendants have not acquired the extent of properties as stated by the plaintiff. The 1st defendant acquired an extent of 41 cents as per Kuzhikanapattadaram dated 05.08.1949, which was registered as document No.1234/49 and he is in absolute possession and enjoyment of the same. Out of the said 41 cents he has gifted 26 cents, excluding the house and well, to his wife Indrani and his son Suresh Babu, who is the 2^nd defendant and the gift deed was made on 05.07.2001. Thus the properties are in possession of the respective persons. It is stated that the defendants do not have any intention to grab any properties of the plaintiff, but they are intending only to protect their property. In short, the defendants had raised the identity of the property in question. In order to sustain the plea, the plaintiff took out an Advocate Commissioner, who filed a report on 07.09.2004 and a plan was appended along with the report. In the report, the Advocate Commissioner has clearly demarcated the property with a specific finding that certain extent of properties are in occupation of the 1^st defendant as well as the other defendants. In short the Advocate Commissioner concluded that as against the claim of 31½ cents, the plaintiff is in possession of 21.75 cents, which was shown as plot No.2 in Ext.C2 plan. With the said report, the parties went to trial and add