'CR'

K.BABU, J.

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R.S.A No.1096 of 2014 ---------------------------------------

Dated this the 1st day of November, 2021 JUDGMENT This Regular Second Appeal arises from the judgment dated

07.01.2014 in A.S.No.37/2011 of the Principal Subordinate Judge's Court, Irinjalakkuda, which set aside the judgment dated 25.02.2011 in O.S.No.741/2001 passed by the Principal Munsiff, Irinjalakkuda.

2. The plaintiff is the appellant.

3. The brief facts giving rise to this appeal are as follows:

3.1. The plaintiff instituted the suit for fixation of boundary and consequential injunction against the defendants in respect of 16½ cents of property in Survey No.762/4 of Poomangalam Village. The plaintiff acquired title and possession of the plaint schedule property under sale deed No.2762/1992. The property of the defendants lies on the immediate south and west of the plaint schedule property. At some portions, the plaint schedule property is lying higher than the defendants' property. The defendants attempted to encroach upon the plaint schedule property on some portions. The defendants also attempted to cut and remove trees standing in the plaint schedule property. The plaintiff prevented the defendants from cutting and removing the trees. The plaintiff is entitled to fixation of the boundary of the plaint schedule property and for a permanent prohibitory injunction against the defendants from trespassing into the plaint schedule property.

4. The defendants resisted the case of the plaintiff. The trees standing on the southern side of the plaintiff's property were in a dangerous position, and the same were about to fall over the tarwad building of the defendants. The plaintiff does not have right over 16½ cents of property. The plaintiff trespassed upon the property of the defendants on its southern and eastern boundaries. There are definite boundaries on the southern and eastern sides of the plaint schedule property, and the same was destroyed by the plaintiff and her husband.

5. The defendants also raised a counterclaim seeking recovery of possession of a portion of the property owned by them, describing the same as 'B' schedule property, and for a consequential injunction.

6. The evidence, in this case, consists of the oral evidence of PWs 1 and 2 and DWs 1 and 2. Exhibits A1 to A9 were marked on the side of the plaintiff and Exts.B1 to B4 were marked on the side of the defendants. Exhibits C1 to C3 series also were marked as Court Exhibits.

7. The Trial Court decreed the suit and granted a decree for fixation of the boundary of the plaint schedule property in accordance with Ext.C3(a) plan. The Trial Court also granted relief of permanent prohibitory injunction in favour of the plaintiff restraining the defendants and their men from trespassing upon the plaint schedule property and from annexing any portion of the same. The counterclaim preferred from the side of the defendants was dismissed by the Trial Court.

8. The defendants challenged the decree and judgment passed by the Trial Court by filing A.S.No.37/2011. The First Appellate Court held that the Trial Court rightly found that the boundary has to be fixed to the plaint schedule property as prayed for. The First Appellate Court further held that the defendants are in possession of 0.285 cents of property of the plaintiff. The First Appellate Court relying on Anjil Vellachi v. Mamuni Bhaskaran [2009 (4) KLT SN.6 (Case No.6)], held that as there was no specific prayer for recovery of possession in the plaint, the remedy for fixation of the boundary cannot be granted. The First Appellate Court reversed the judgment and decree passed by the Trial Court, and the suit, as well as the counterclaim, were dismissed.

9. On 27.03.2015, this Court admitted this Regular Second Appeal on the following substantial questions of law:

1) Has not the lower appellate court erred in holding that a decree for fixation of boundary could not be granted without seeking recovery of pos