Remand for proving legatee's Will rights and co-owners' joinder after vacating erroneous title findings based on Commissioner's identification.

Dated this the 1^st day of April, 2026 JUDGMENT This appeal arises out of the concurrent findings rendered by the courts below by the Additional Munsiff Court - I, Thiruvananthapuram in O.S.No.1730 of 2011 as affirmed in A.S.No.500 of 2015 by the Additional District Court – III, Thiruvananthapuram.

2. The brief facts necessary for the disposal of the appeal are as follows: The original plaintiff sued the defendants for a declaration of title, recovery of possession, fixation of boundary and permanent prohibitory injunction contended that 25 cents of property in Attipra Village was in possession of her father and it was sold to him by a sale deed. The plaint schedule property is lying contiguously with the property on its northern side, without any boundaries. The resurvey authorities prepared the resurvey plan showing the plaint schedule property together with its adjacent northern property. Though the defendants were approached to enable the plaintiff to put up a boundary wall, the same was refused and hence the suit. After filing of the suit, the plaintiff had amended the suit seeking for a declaration of title and recovery of possession. The defendant resisted the suit and contended that there is no property as stated in the plaint and that the property of the defendants having an extend of 60 cents was surrounded by a compound wall and therefore, the claim of the plaintiff is unsustainable. On behalf of the plaintiff Exts.A1 to A8 were marked and PW1 to PW3 were examined. On behalf of defendants DW1 to DW4 were examined and Exts.B1 to B7 series were marked. Exts.C1 and C2 are the reports submitted by the Advocate Commissioner and Ext.C1(a) is the survey plan. The Advocate Commissioner identified the plaint schedule property and found that it was lying inside the compound wall. However, despite the identification done by the Advocate Commissioner, the plaintiff was nonsuited on the ground that the mere production of the sale deed is not sufficient, since the sale deed does not mention about the prior document. Accordingly, the suit was dismissed. Aggrieved an appeal was preferred before the Additional District Court - III, Thiruvananthapuram, which was dismissed by judgment dated 30.09.2016 and hence the appeal. On 30.03.2026 this Court admitted the appeal on the following substantial questions of law:

“(i) Did not the Courts below err in construing Exhibits A1 to A6 in the facts and circumstances of this case?

(ii) Did not the Courts below err in discarding Exhibit A7?

(iii) Did not the courts below err in misconstruing the oral evidence adduced in this case and in coming to conclusions that are totally unwarranted?

(iv) From the pleadings, evidence and findings available on record, did not the Lower Appellate Court fail to exercise its jurisdiction as the Court of First Appeal as mandated under Section 96 read with Order XLI of the Code of Civil Procedure, 1908?”

3. Heard Sri.K.S.Bharathan, learned counsel appearing for the appellant and Sri.V.N.Gopalakrishnan Nair, learned counsel appearing for the respondents.

4. Sri.K.S.Bharathan, learned counsel appearing for the appellant contended that the defendants cannot dispute the title of the plaintiff. In fact, in the written statement, there is a categorical admission as regards the title of the predecessor, but then what is contended is that he has sold away the property. Further, the defendants had not produce any title deed in respect of the property in order to show that the plaint schedule property was in fact belonging to them. Once the Advocate Commissioner has identified the property with the help of the Surveyor, it became incumbent upon the trial cour