Previous judgments on property boundaries are binding, and any challenge requires substantive evidence.

J U D G M E N T

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Challenging the concurrent findings entered by the Munsiff's Court, Kodungallur in O.S. No.733/2007, followed by those of the Additional Subordinate Judge's Court, Irinjalakuda in A.S. No.46/2011, the defendant in the suit has come up in Second Appeal.

2. The suit is one for fixation of boundary and perpetual injunction. The case of the plaintiff is that the plaint schedule property belongs to the plaintiff and he derived the title to the property through Exts.A1 sale deed and Ext.A2 purchase certificate. Through Ext.A1, the plaintiff derived title over 14 cents of property and through Ext.A2, he derived title over 10 cents of property. The properties are lying in various sub divisions in Survey No.9 of P.Vemballur village. It is the case of the plaintiff that the property situated at the eastern side of the plaint schedule properties belongs to the defendant. There is no clear-cut boundary to separate the plaint schedule property from the property of the defendant. According to the plaintiff, the defendant, with a view to committing trespass into the plaint schedule property, has installed two concrete posts by encroaching into certain portions of the plaint schedule property. At the same time, still, there is no separating boundary between these two properties.

3. The defendant contended that the two concrete posts were installed by the defendant at the then existing separating boundary of the plaint schedule property and the property of the defendant and, therefore, the straight line in between the said two concrete posts is the separating boundary. It was also admitted that earlier, the defendant had filed O.S. No.995/2001 before the trial court for a decree of perpetual injunction. The said suit was dismissed by the trial court and the said decree and judgment have become final. Even though the defendant has contended that the defendant had made arrangements to file an appeal challenging the judgment and decree in O.S. No.995/2001, still no appeal has been filed.

4. On the side of the plaintiff, PWs 1 and 2 were examined and Exts.A1 to A6 were marked. Through PW2 Advocate Commissioner, Ext.C1 series were proved. The Commissioner's report and plan produced and marked in O.S.No.995/2001 as such were sought to be produced in the suit. The same were produced and the said documents were marked as Exts.C2 and C2(a). The defendant has not entered the box. At the same time, Exts.B1 and B2 were marked. The trial court decreed the suit in terms of the plaint by fixing the eastern boundary of the plaint schedule property as noted in Ext.C1(a) as well as Ext.C2(a). The defendant went in appeal through A.S. No.46/2011. The lower appellate court also concurred with the findings entered by the trial court and dismissed the appeal.

5. This Court has admitted the Second Appeal on the following substantial questions of law: “(1) Were the courts below right in accepting and marking the Commissioner's report and plan in an earlier suit without examining the Advocate Commissioner in the present suit?

(2) Did the courts below properly appreciate the evidence available in the case and whether the appreciation of evidence led to a perverse finding?

(3) Whether the courts below went wrong in accepting the Commissioner's plan and report when the properties of the plaintiff and the defendant were not measured on the basis of their respective title deeds?”

6. Heard learned counsel for the appellant and learned counsel for the respondent.

7. The learned counsel for the appellant has argued that the entire sub divisions noted in Exts.C1(a) and C2(a) in which the plaint schedule property is situated, are not available in Exts.A1 and A2 and, therefore, the plots identified as the plaint schedule property are not correctly identified. Further, according to the learned counsel for the appellant, the entire sub divisions in which the property of the defendant is situated are also not shown in Exts.C1(a) and C2(a) and, therefore,