The plaintiff in O.S.No.292/2006 who succeeded in the trial court and who was non suited by the lower appellate court is the appellant before this Court. The plaintiff traces his title to Exts.A1, A2 and A3 documents. He claimed that though he was entitled to 88 cents of property, he obtained patta for only 83 cents. It is claimed that he is in absolute enjoyment of the plaint schedule property. He would say that the eastern boundary of the property obtained by him as per Exts.A1, A2 and A3 documents is a thodu. Alleging that the defendants are trying to trespass into the property situated on the western side which is actually belonging to him, suit was laid. 2. The defendants contested the suit and raised title to Ext.B1 document which is a partition deed of their family. According to them, thodu is not a common boundary but it is situated inside the property allotted to the defendants 1 and 2 and beyond the thodu, on the western side also, they had a strip of land. Apart from resisting the claim made by the plaintiff, they also filed a counter claim with respect to 1½ cents of property which is shown on the western side of the thodu as claimed by them.
3. On the basis of the above pleadings, issues were raised and the parties went to trial. The plaintiff examined PWs 1 and 2 and had Exts.A1 to A4 marked. The defendants had DW1 examined and Exts.B1 to B4(a) marked. Exts.C1 to C2(a) are the commission report and plan.
4. The trial court, on evaluation of the evidence, found in favour of the plaintiff and granted a decree as follows:
(i) Defendants or anybody claiming under them are restrained from trespassing into the plaint schedule property which is shown in yellow and pink shades in Ext.C2(a), committing any waste therein, altering the lie of the same and from obstructing the plaintiff's peaceful enjoyment over the same.
(ii) Ext.C2(a) plan shall be appended with the decree.
(iii) No costs”.
5. The lower appellate court reversed the findings of the trial court and non suited the plaintiff. Hence this R.S.A.
6. The following substantial questions of law have been formulated in the memorandum of appeal:
(i) Whether the finding of the Lower Appellate Court, that the plaintiff has not proved the possession of the entire extent of the plaint schedule property, by a wrong interpretation of Ext.C2(a) Survey Plan, when there is clear evidence by way of Exts.A1 to A3 and oral evidence for the possession, is correct?
(ii) Whether the Lower Appellate Court is justified or correct in ordering to fix the boundary of the plaint schedule property and the 2nd defendant's property on a wrong appreciation of the Survey Plan which is strongly objected by the plaintiff and also when the evidence is on the contrary?
(iii) Whether the Lower Appellate Court is correct in ordering recovery of possession of 'B' schedule property without even referring to the adverse possession pleaded and proved by the plaintiff?
7. Learned counsel appearing for the appellant pointed out that the lower appellate court was not justified in reversing the decree granted in favour of the plaintiff because there was no attempt from the side of the defendants to have the property obtained by them as per Ext.B1 identified. It is significant to notice, according to the learned counsel, that what is scheduled and claimed in the counter claim was a portion of 23 cents out of the larger extent of property obtained by them and it is not discernible how they carved out 23 cents from a larger extent of property obtained by them as per Ext.B1. It is also contended that the commission report and plan now prepared are without measuring the property alleged to have been obtained by the parties with respect to their title deeds.
8. It is significant to notice, according to the learned counsel for the appellant, that even in the written statement though the defendants admitted that as per Ext.A1 partition deed the plaintiff had 88 cents, he has only patta for 83 cents. Going by the sketch now forms part of the decree, he has only 79½ cents. The claim of the defendants that a portion of the property had taken for widening of the road is not established. At any rate, according to the learned counsel, the property which they have claimed to have obtained has to be identified first and then only the court could have come to the conclusion that counter claim property belongs to the defendants as held by the lower appellate court.
9. Learned counsel appearing for the respondents, on the other hand, pointed out that going by the descriptions in Ext.B1 which has been extracted by the lower appellate court, it is clear that a portion shown in red colour which is situated on the eastern side of the plaintiff's property and which is also on the western side of the thodu actually belongs to them and the claim put forward by the plaintiff that thodu is a common boundary between the plaintiff's property and the defendants' property is not proved. Learned counsel also referred to the proceedings before the Revenue Divisional Officer. Accordingly, it is contended that there are no grounds to interfere with the findings of the lower appellate court.
10. At the outset itself, it may be noticed that there is some substance in the complaint voiced by the learned counsel for the appellant. Even in the counter claim, their anxiety was to have the property obtained by each of the parties with respect to respective documents identified and measured and fix the common boundary between the properties. This would be clear from paragraph 11 of the written statement containing the counter claim. Their definite case was that the claim made by the plaintiff that the thodu is situated between the property of the plaintiff and the defendants is not correct and the thodu belongs to the defendants. In short, to ascertain the common boundary between the two parties, it is absolutely necessary to have the properties obtained by each of the parties as per the respective documents measured and identified and prepare the plan with respect to those properties.
11. It is difficult to understand how the lower appellate court came to the conclusion that in the counter claim a portion of the property now shown forms part of a larger extent of property obtained by the defendants as per Ext.B1. It is also difficult to understand how a smaller portion of land has been culled out. It is not possible to identify from the sketch now before court, the property actually obtained by the defendants as per Ext.B1. Going by the claim made by the defendants, they must have obtained nearly 1.3 and odd Acres of land as per the recital in Ext.B1. As to where the property is located has to be ascertained. Even going by the contention raised in the written statement, the defendants have no case that even though patta was obtained for 83 cents by plaintiff, as on date the plaintiff was in possession of much less property though a portion of the property has been taken for widening of road. Of course, going by the sketch now available, on the southern side of the plaintiff's property shown as per Ext.C2 is a road so also on the western side of a portion of 23 and odd cents of property belongs to the plaintiff. What is the extent left as per the document is a matter to be ascertained.
12. It is clear from the counter claim that the defendants were not sure about the boundaries. In order to fix the boundaries, it is absolutely necessary to have the properties obtained by each of the parties be identified. There is no dispute that there is a common boundary. Attempt has not been made to ascertain that boundary. Without ascertaining the said boundary and identifying the property, it is felt that the decrees of the courts below cannot be justified.
For the above reasons, this appeal is allowed and the impugned judgment and decree are set aside and the matter is remanded to the trial court for fresh disposal in accordance with law and in the light of what has been stated above. The parties shall appear before the trial court on 23.07.2014. Till the suit is disposed of, the state of affairs as on the date of filing of the suit shall be maintained. Both parties are at liberty to adduce further evidence. The court may make every endeavor to get a proper plan and sketch prepared for the purpose of agitating the issue. The court may also make every endeavor to dispose of the matter as expeditiously as possible, at any rate, within a period of six months from the date of appearance of the parties.
P.BHAVADASAN JUDGE smp