A fresh appointment of a survey commissioner is warranted when property boundaries are contested, particularly following prior adjudications.

J U D G M E N T

The plaintiffs in a suit for permanent prohibitory injunction concurrently non-suited have come up with the present appeal, aggrieved by the refusal of the First Appellate Court to grant an opportunity to take out a Survey Commissioner for identification of the property.

2. Brief facts for the disposal of the appeal appeal are as follows:-

An extent of 1 Acre 9 cent in resurvey No.150/3 belonged to the plaintiff by virtue of sale deed No.2046/1976. Out of the said property an extent of 20 cents lying in the north-east portion was sold to the 1^st defendant by sale deed No.591/1977. The plaintiff filed O.S No.82/1980 before the Munsiff’s Court, Thiruvalla, for fixation of boundary and injunction. The said suit was decreed by fixing a boundary based on the survey plan. Later the plaintiffs alienated 57 cents from his total property and the balance 32 cent is in absolute possession of the same. Since there is no visible boundary demarcating the plaintiffs and the defendants property, taking advantage of that fact, the defendants attempted to trespass into the plaint schedule property and hence the suit. The defendants resisted the suit by contending that the 1^st defendant has already transferred 10 cents to the husband of the 2^nd defendant and remaining 10 cents is in joint ownership of the 1^st defendant and her children. It was further contended that the remedy of the plaintiffs were to file an execution petition for executing the decree in O.S No.82/1980 and also that the period for filing the execution having expired, the suit is not the remedy. The trial court on appreciation of the oral and documentary evidence came to the conclusion that the plaintiffs were not able to identify the property scheduled in the plaint, therefore declined the relief of injunction. Aggrieved, the plaintiffs filed A.S No.37/2022 before the Sub Court, Thiruvala. During the pendency of the first appeal, I.A No.1/2023 was filed seeking to appoint a Survey Commissioner. However, the First Appellate Court found that a prayer for fixation of boundary was also sought for in the Interlocutory Application, which was completely alien to the prayer sought for in the suit and therefore dismissed the said application and proceeded to dismiss the appeal by judgment dated 23.08.2023. Hence the present appeal.

3. On 19.01.2026 this Court admitted the appeal on the following substantial questions of law:-

(i) If the plaint schedule property is identifiable based on the decree in an earlier suit for fixation of boundary, when a fresh suit for injunction with regard to the very same boundaries plaint schedule property on the basis of a fresh cause of action is filed, whether a fresh prayer for fixation of boundary is required and if such a prayer is made will it be barred by the principle of resjudicata? Additional substantial question of law:-

(ii) Whether the first appellate court was justified in rejecting I.A No.1/2023, which is an application for appointment of a Survey Commissioner?

4. Heard Shri.R.Padmaraj, the learned counsel appearing for the appellants and Shri.Manu Ramachandran, the learned counsel appearing for the respondents.

5. Shri.R.Padmaraj, the learned counsel appearing for the appellants submitted that having extended an opportunity to take out a Survey Commissioner, the First Appellate Court could not have dismissed the appeal and the Interlocutory Application. It is true that in the said application, extensive prayers were sought for. B