Defendants 2 to 4 in a suit for injunction are the appellants. A suit was filed for prohibitory injunction restraining them from trespassing into any portion of the plaint A schedule property and also for recovery of possession of the plaint B schedule property, which is the portion of the plaint A schedule property, which was alleged to have been trespassed upon and reduced to the wrongful possession of the defendant. It was contended by the plaintiffs that on the southern side of the plaint A schedule property there was a pathway, but the defendants wanted the plaintiffs to surrender a portion of the A schedule property for widening the same. But the plaintiffs declined the request. Thereupon the defendants attempted to trespass into the southern portion of the plaint A schedule S.A. No: 582/2000 -2- property and hence the suit was filed. Subsequently, when the commissioner inspected the property, a small strip of land which is part of the property held by the plaintiffs had been encroached upon by the defendants and hence in respect of that small portion recovery was sought.
2. The defendants resisted the suit contending that though the defendants had approached the plaintiff for surrendering a small bit of land for widening the road, the plaintiffs refused to surrender that land. The defendants, thereafter, obtained a small strip of land for widening the pathway from the owners holding the property on the southern boundary of the pathway and by making use of that land the pathway was widened.
3. PW1 and DW1 were examined and Exhibits A1 to A5 were marked. Commissioner's reports and plan were marked as Exts. C1 to C3. The learned Munsiff, after a detailed consideration of the entire evidence, found that the S.A. No: 582/2000 -3- southern boundary of the plaint schedule property is the fencing noted by the commissioner. It was found that there was an old fence and also an old gate which were seen intact and as such the contention that the portion of the plaint schedule property was trespassed upon by the defendants for widening the pathway is unsustainable. It was not disputed that the gate post and the fence were old. Hence, considering all the aspects, the learned Munsiff found that the plaintiffs failed to prove that they have got any right over the property to the south of the old fence and gate, mentioned earlier. Since it was found that the defendants had not trespassed into any portion of the plaint schedule property, the suit was dismissed.
4. In the appeal the learned Sub Judge found that the plaint A schedule property was clearly demarcated as ABCD and that the B schedule property is demarcated as SS2BA. According to the learned Sub Judge, since survey S.A. No: 582/2000 -4- boundary line is shown in dotted lines, the aforesaid small strip of land marked as SS2BA forms part of the plaint A schedule property and as such a decree for injunction against the defendants from trespassing into the plaint schedule property and a decree for recovery possession of the plaint A schedule property was granted.
5. The learned counsel for the defendants/appellants contends that the evidence would clearly show that along the southern boundary of the plaintiff's property there had been an old fence and also an old gate as specifically noted by the Advocate Commissioner in Ext.C1 report. There was no case for the plaintiffs that he had property to the south beyond the old fence which was actually the southern boundary of his property. It is further contended that it is unreasonable to think that the plaintiff would leave apart a very narrow strip of land to fall outside the boundary of his property, if actually that small strip of land had been part of S.A. No: 582/2000 -5- his property. It is further argued that when survey measurements are taken at a later point of time, there used to be slight mistake in fixing the boundary and the drawing of the survey boundary line. So, even if the survey line is seen to be slightly to the south of the old fence, which was actually the southern boundary of the plaintiff's property, it cannot be said that the plaintiffs had title to the property up to the survey line.
6. It was the specific case of the plaintiff that along the southern boundary of the property there was an old compound wall and that the defendants demolished that compound wall and also cut the trees which were standing there. But in evidence PW1 stated that along the southern boundary of the A schedule property there was an old fence and gate. It was categorically admitted that the said fence and gate were situated on the southern boundary of the A schedule property and that the plaintiffs have no property to S.A. No: 582/2000 -6- the south of that gate and fence.
7. The relevant portion of the evidence given by PW1 extracted by the learned Munsiff in page 7 of the judgment, is to the effect that they used to put up fence along the southern boundary of the plaint schedule property. It was further stated by him that even from his age of discretion gate posts had been there. That would demolish the case of the plaintiffs that there was a compound wall on the southern boundary and it was demolished by the defendants. Though that was the case in the plaint, when examined, PW1 had no case that there was a compound wall on the southern boundary of the A schedule property. Not only that, in the light of the categoric admission made by PW1 that the southern boundary of A schedule property was the old fence, it is inconceivable how the plaintiff could successfully contend that their property did fall beyond the southern old fence which had been there in existence for S.A. No: 582/2000 -7- several years.
8. The very fact that touching the old fence two electric posts were also seen would sufficiently indicate that the plaintiff had no property to the south of the fence which itself formed the southern boundary of his property. PW1 had no complaint about the facts noted by the Advocate Commissioner relating to the old fence, old gate posts and electric posts. As has been already found, since the old fence and the gate were seen in tact when the commissioner inspected the property, the contention to the contrary advanced by the plaintiffs was rightly turned down by the learned Munsiff. The learned Munsiff had the opportunity to assess the evidence correctly watching the demeanour of the witnesses as well.
9. The argument that since the survey line is along S1 and S2 the plaintiff's property extended up to that survey line is actually contrary to the pleadings and S.A. No: 582/2000 -8- evidence. Viewed in that background, the contention raised by the defendants that the pathway was widened after getting small strip of land from the owners holding the southern boundary of the property, appears to be more reasonable, plausible and acceptable.
10. The contention that the plaintiff's property extended up to the survey line SS2 and not AB does not stand to reason in view of the fact that the natural existing boundary of the properties lying to the east also is seen marked by the Advocate Commissioner along BE DGE whereas the dotted survey line proceeds from S2 upto E2. That also would demolish the case of the plaintiff that the boundary existed upto the survey line shown by the Commissioner in dotted lines.
11. There is one more point that assumes importance. The Advocate Commissioner seems to have not got the property measured based on the kole measurements S.A. No: 582/2000 -9- shown in the document. Ext.A1 shows that the kole measurement of the property which is most certain and definite regarding the extent of the property as 41x28 six feet koles . If so the extent of the property would be only 95.666 cents (41x28/12). The plaintiff seems to have calculated the total extent of the A schedule property held by him as one acre and 07 cents. But in respect of that much of land the plaintiffs have not obtained title as per Ext.A1 as has been mentioned above, the defendants contend.
12. There is yet another point which also cannot be lost sight of. The plaintiff is only one of the co-owners of the property. The first defendant is another co-owner. It is also stated that there was a suit for partition of the plaint schedule property. Since the plaintiff is only having fractional share in the plaint schedule property and the first defendant who is another co-owner is on the other side as S.A. No: 582/2000 -10- the first defendant, that also would demolish the case of the plaintiff that he has got title to the property upto the southern boundary line SS2 which is not the case of the first defendant. The fact that along the southern boundary of the plaint schedule property the old fence was situated, ie along the line AB, is further fortified by the existence of the old gate posts G1 and G2, which is in the same line. Ext.A1 shows the total extent of the property as 41x28 six feet koles. It was not measured and demarcated in that line. The contention raised by the plaintiff that the property extended beyond the old fence is found to be bereft of any merit.
13.The suit is not for fixation of boundary. The decision in P.Velu and others v P.Padmavathy Amma- ILR 1984 (1)Kerala page 30 also cannot come to the rescue of the plaintiff since here the north-south and east-west kole measurements shown in the document are so definite and S.A. No: 582/2000 -11- certain that it is least likely to be confused. In the facts and circumstances highlighted earlier the contention that the plaintiffs' property extended upto the survey line SS2 cannot be sustained at all. These aspects were highlighted by the learned Munsiff to dismiss the suit. 14. The lower appellate court has not considered any of these aspects but was simply swayed by the fact that a survey line was drawn by the Advocate Commissioner as SS2 without realising the fact that as per Ext.A1 the plaintiff's property was only having the measurement 41x 28 six feet koles. In these circumstances, it is held that the lower appellate court has misconstrued the evidence and did not properly apply the principle that title is to be proved by the plaintiff, in a suit for recovery of possession based on title. The plaintiff has to stand on his own legs. He has to prove title to the property. I have no hesitation to hold that the plaintiff could not prove his title to the small strip of land ABS2S. S.A. No: 582/2000 -12- The decree granted by the lower appellate Court has to be thus set aside.
15. In the result, this appeal is allowed. The decree and judgment of the lower appellate court are set aside. The suit stands dismissed. Considering the facts and circumstances of the case, the parties are directed to suffer their respective costs.
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N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj/ani