In property disputes, the burden of proof lies with the plaintiff to establish specific claims of encroachment and the principle that boundaries prevail over mere extent must be adhered to.

JUDGMENT

The appellants are the defendants in a suit for declaration and recovery of possession. The plaintiff filed the suit to declare his right to an extent of 2 acres, excluding 10 cents of common family temple property and for a consequential decree for recovery of possession of 16 cents from the defendants.

2.It is the case of the plaintiff that the plaintiff and the 1st defendant are brothers, being sons of one Valliya Gounder, whose title is admitted by both the parties. The son of the 1st defendant is the 2nd defendant, the wife of the 1st defendant is the 3rd defendant, the 5th defendant is the daughter of the 1st defendant, the 4th defendant is the husband of the 5th defendant (Son-in- law of defendants 1 and 3) and the 6th defendant is the son of defendants 4 and 5. According to the plaintiff, his father conveyed the property of an extent of 65 cents to the 1st defendant, by way of a registered sale deed, which is not in dispute. Subsequently, the remaining property measuring 2 acres has been settled on the plaintiff. The allegation of the plaintiff is that the defendants have encroached an extent of 16 cents into his 2 acre property and therefore, the suit was filed.

3.The 2nd defendant filed a written statement which was adopted by the other defendants. It is the case of the defendants that, the father of the plaintiff, Valliya Gounder, had conveyed 65 cents of land under a registered sale deed, even prior to the settlement deed in favour of the plaintiff. In the said sale deed, the vendor, namely, father of the plaintiff had clearly mentioned that there was a 1/3 right of enjoyment of the common pathway as well as a house and the well. According to the defendants, the said common properties are situate within the property claimed by the plaintiff. The said common property is claimed by the plaintiff, as if it is an encroachment.

4.An additional written statement was filed by the 1st defendant stating that the plaintiff was in possession of only 1.91 acres and the boundaries specified in the settlement, under which the property was settled in favour of the plaintiff, did not mention about the common family temple also. According to the 1st defendant, they have been in absolute possession and enjoyment of the disputed property for over 12 years and the 1st defendant had perfected title to the suit property, measuring 16 cents.

5.Before the Trial Court, on the side of the plaintiff, the plaintiff examined himself as P.W.1 and one Subramaniam was examined as P.W.2 and Ex.A1 to Ex.A21 were marked. On the side of the defendants, the 2nd defendant examined himself as D.W.1 and Ex.B1 to Ex.B7 were marked. An Advocate Commissioner was also appointed by the Trial Court and his report and sketch have been marked as Ex.C1 and Ex.C2.

6.The Trial Court had appreciated the oral and documentary evidence adduced by the parties and dismissed the suit, holding that the plaintiff was not entitled to either the relief of declaration or recovery of possession. 7.On appeal, preferred by the plaintiff in A.S.No.12 of 2017, the First Appellate Court re-appreciated the evidence available on record and reversed the findings of the Trial Court and proceeded to decree the suit as prayed for.

8.It is as against the reversal findings rendered by the First Appellate Court, the defendants are on Second Appeal.

9. On 19.12.2023, the above Second Appeal was admitted on the following substantial question of law:

“Whether the judgment and decree passed by the First Appellate Court is vitiated in its failure to apply the well settled legal principle 'boundaries will prevail over the extent'?

10. I have heard Mr.I.Abrar Mohamed Abdullah, learned counsel for Mr.M.Roshan Atiq, learned counsel appearing for the appellants and Mr.J.Tisus Erock, learned counsel appearing for the first respondent and Mr.N.Chinnaraj, learned counsel for the second respondent.

11. The learned counsel for the appellants would submit that the plaintiff has approached the Court for the