Boundaries prevail over survey discrepancies in title deeds; no automatic vesting without proof of prior public dedication.

JUDGMENT :

EASWARAN S., J.

The 1st plaintiff in a suit for declaration of title and prohibitory injunction has come up in the present appeal aggrieved by the concurrent findings rendered against him. 2. The brief facts necessary for the disposal of the appeal are as follows:

2.1. The plaint schedule property comprises 15 cents of land in Survey No.184/15, forming a compact plot with boundary walls, situated near Kowdiar Palace. The property originally belonged to His Highness Sree Chithirathirunal Balarama Varma, who executed a gift deed on 06.11.1971 with respect to a large extent of land in favour of Her Highness Gowri Parvathi Bai of Kowdiar Palace. She accepted the gift for a total extent of 1 acre 19 ¼ cents. On 08.07.2005, by Sale Deed No.2611, she transferred the 15 cents in favour of the plaintiffs. Though the property was transferred, the revenue authorities did not accept the request for mutation. Thus, a complaint was filed by the plaintiffs before the Lokayuktha. While so, on 21.01.2006, attempts were made by the officers of the Water Authority to trespass into the property. Thereafter, when they made attempts to trespass into the property on 23.01.2006 and again on 08.02.2006, the suit was instituted.

2.2. The defendant resisted the suit by contending that the suit is not maintainable and that the property vests with the Kerala Water Authority consequent to the enactment of the Kerala Water Supply and Sewerage Act, 1986. In fact, the defendant contended that, it is the plaintiffs who had trespassed into the property. It was further contended that the property was originally dedicated for the purpose of establishment of a water supply line even before the erstwhile Princely State of Travancore merged with the State of Kerala. Since the property was dedicated by the erstwhile King for public purpose, the same stood vested with the Kerala Water Authority and therefore, the plaintiffs do not have a title over the property.

2.3. The plaintiffs later amended the suit and contended that the plaintiffs’ possession over the property was in continuation of the possession of their predecessor and the possession of the predecessor was even predated and therefore, sought for declaration of title. On behalf of the plaintiffs, Exts.A1 to A12 series were produced and PW1 to PW5 were examined. On behalf of the defendant, Exts.B1 to B10 documents were produced and DW1 was examined. Exts.C1 and C2 are the reports and Ext.C2(a) is the plan submitted by the Advocate Commissioner. The Advocate Commissioner was examined as PW3.

2.4. The trial court framed the following issues for consideration:

1. Whether the plaint schedule description is correct?

2. Whether the plaintiff has got possession over plaint schedule property?

3. Whether the plaintiff is entitled to get a prohibitory injunction restraining defendants from trespassing into plaint schedule property?

4. Reliefs and costs.

Additional issues

5. Whether plaintiffs have title over plaint schedule property?

6. Whether the plaintiff is entitled to get a decree of declaration as prayed for?

2.5. The trial court, on appreciation of the oral and documentary evidence, came to the conclusion that, at the time of execution of Ext.A3 Sale Deed, the vendor was not in actual possession of the property and therefore, the title cannot be declared. But, the trial court found that since the plaintiffs have got possession over the property in Survey Nos.187 and 192, they are entitled to get a decree of prohibitory injunction. Thus the suit was partly decreed granting a prohibitory injunction in favour of the plaintiffs restraining the defendant from disturbing their possession. Aggrieved, the defendant preferred A.S.No.94/2008 and the 1st plaintiff preferred A.S.No.158/2008 before the Principal Sub Court, Thiruvananthapuram