The properties of late Muhammed were inherited by the plaintiffs and the defendants in O.S.No.75 of 2002 of the Munsiff's Court, Ottapalam. Muhammed had sold some portions of his properties to strangers, from its southern extremity. As per document, the extent of the remaining property of Muhammed was only 13 cents. The said 13 cents was included as the decree schedule property. When the property was measured, it was found that the actual extent of the property within the said boundaries, is 21 cents. Based on the said measurements reported by the Commissioner, the plaintiffs have sought for the amendment of the plaint, as well as the preliminary decree, for incorporating the extent of the property in the schedule as 21 cents within the boundaries. 2. The respondents/defendants contended that they are in possession of 4 cents of property at the southern side of the decree schedule property. At the same time, it seems that they had no such contention in the written statement or in the suit. Even now they have no case as to how they came into possession of such 4 cents of property. At the same time, it has clearly come out that the southern boundary of the property is shown as the property sold by Muhammed. The southern boundary of the decree schedule property does not show that the respondents have any property in their possession at the southern side of the decree schedule property. Therefore, it is evident that they have reduced 4 cents of excess of land, which is there within the boundaries of the decree schedule property, into their possession, after the decree. When specific boundaries are shown, the extent of the property has to be considered as the actual extent within the said boundaries.
3. When Ext.P6 application was filed, it seems that the court below has allowed the plaintiffs to amend the extent as 17 cents instead of 21 cents.
4. Heard the learned counsel for the petitioner, Shri.P.Jayaram. There is no representation for the respondents.
5. On hearing the learned counsel for the petitioner and on perusing the records, it is evident that the actual extent of the property as identified by the Commissioner, with measurements within the boundaries shown in the decree schedule as well as the plaint schedule, is 21 cents. It seems that the respondents have reduced the portion of 4 cents from the southern boundary of that 21 cents, into their possession and put up a fencing to show that they are in possession of 4 cents of property. At the same time, they had no such contention in the suit. Even going by the earlier Commission reports also it is evident they they were not in separate possession of such 4 cents of the property at the southern side of the property. The boundary descriptions also clearly show that the respondents are not in possession of any such property on the southern side. There was no reason for the court below to permit the plaintiffs to limit their claim in respect of the extent of the property to 17 cents only, when it is shown that there is a total extent of 21 cents within the boundaries. When there is a discrepancy between the boundaries and the extent, the boundaries shall prevail. When there is an extent of 21 cents within the boundaries shown in the plaint as well as the decree schedule, the court below ought to have allowed Ext.P6 application as such. Matters being so, Ext.P10 is liable to be modified by permitting the petitioners/plaintiffs to get the plaint, as well as the decree schedule amended, so as to incorporate 21 cents within the said boundaries and also to show its measurements.
In the result, this O.P.(Civil) is allowed and Ext.P10 order (I.A. No.1192 of 2006) is modified by allowing the plaintiffs to get the plaint, as well as the preliminary decree amended as sought for in Ext.P6 (I.A. No.1192 of 2006).
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B.KEMAL PASHA, JUDGE dl // TRUE COPY //