The defendants who suffered a decree at the hands of the trial court which was confirmed in appeal are the appellants before this court.
2. The suit was one for injunction and fixation of boundary. Both the plaintiff and the defendants claimed their respective properties to a final decree in a partition suit evidenced by Ext.A1. Admittedly the defendants' property is situated on the western side of the plaintiff's property. Contending that there is no boundary separating the two properties and the plaintiff apprehends trespass at the hands of the defendants, the suit was laid.
3. The defendants resisted the suit by pointing out that the final decree was passed while the matter was pending before the Apex Court and when status quo order was in force. It is further contended that since final decree is under challenge, the allocation made as per the final decree cannot be treated as final. On the basis of these contentions, they prayed for a dismissal of the suit.
4. On the basis of the above pleadings, issues were raised by the trial court. Evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A10 from the side of the plaintiff. The defendants had D.W.1 examined and Ext. B1 marked. Exts.C1, C1(a), C2 and C2(a) are the commission reports and plans.
5. On an appreciation of the evidence in the case, both the courts below came to the conclusion that Exts. C2 and C2(a) are strictly in terms of Ext.C1(a) plan wherein the properties were allotted to the respective sharers in the final decree. It is found that plots C and C1 were allotted to the plaintiffs, and plots D and D1 were allotted to the defendants. The courts below also found that there is no demarcating boundary on the western side of the property and therefore the plaintiff was justified in approaching the court. Hence the suit was decreed and it was confirmed in appeal.
6. Learned counsel also contended that as long as the final decree has not become final, it is dangerous to permit the party to put up a boundary on the western side of the property. The plaintiff is allotted with 6.44 cents as per the final decree, but actually it was found to be a lesser extent going by Exts.C2 and C2(a). If as a matter of fact any alternation is made in the final decree, that will cause difficulties and therefore the decree and judgment of the court below cannot stand.
7. Though the argument may look attractive at the first blush, on a close scrutiny it can be found that there is no substance in the contention raised by the learned counsel for the appellants. Final decree was passed making allocation to the appellants in the party array and there is nothing to show that they had filed any objection either to the allocation or to the delivery effected. Plot Nos. C and C1 in Ext.C1(a) were allotted to the plaintiff. They have also no case in this suit that by resorting to fixation of the western boundary as per the allotment made, the plaintiff is trying to usurp any portion of the property not allotted to them as per Exts. C1 and C1(a). The commissioner deputed in this case has identified the property allotted to each of the sharers as per Ext.C1(a) and no objection seems to have been filed by either parties to the commission report.
8. It was after accepting the commission report that there is no boundary as such separating the two properties on the western side, the trial court decreed the suit. The fact that the commissioner has noticed only a lesser extent of property than what is claimed does not help the defendants at all. The defendants have no case that as already noticed, the plaintiff is trying to annex any portion of their property nor have the plaintiff laid a claim that the defendants have encroached into any portion of their property. There is no dispute regarding the fact that the identification made by the Commissioner as per Exts.C2 and C2(a) are in terms of Ext.C1(a) and if that be so, there is no grievance for the appellants. If the final decree was passed while the matter was pending before the Apex Court, it is only reasonable to believe that appropriate proceedings will follow.
With the above observation this appeal is dismissed.
P. BHAVADASAN, JUDGE sb.