IN THE COURT OF THE MUNSIFF-MAGISTRATE, MANNARKKAD

Present:- Smt. Kavya Soman., B.Com., LL.B., Munsiff - Magistrate.

Friday, the 30th day of June, 2023
(9th day of Ashadam, 1945, S.E)
ORIGINAL SUIT NO. 203/2014
Udayakumar (Mentally retarded), aged 53 years, S/o. Late Ramankutty
Tharakan, Nagambrath, residing at Kodiyankunnath, Edathanattukara
amsom desom, Mannarkkad Taluk. Represented by next friend and Mother
Plaintiff
Madhavi Amma, aged 76 years, D/o. Apputharakan and W/o. Late
Ramankutty Tharakan, Nagambrath, residing at Kodiyankunnath,
Edathanattukara amsom desom, Mannarkkad Taluk.
Vs.
1. Sundharan @ Krishnan, aged 53 years, S/o. Kunjikannan @ Sankaran,
Perazhi Veettil, residing at Kodiyankunnath, Edathanattukara amsom
desom, Mannarkkad Taluk.
2. Muhammed Haji, aged 55 years, S/o. Hamsakutty, Koomancheri Veettil,
residing at Kodiyankunnath, Edathanattukara amsom desom,
Defendants
Mannarkkad Taluk.
3. Radhakrishnan, aged 54 years, S/o. Kunchu, Pangodan Veettil, residing at
Kodiyankunnath, Edathanattukara amsom desom, Mannarkkad Taluk.
4. Ali, aged 56 years, S/o. Rayinkutty, Paduvambadan Veettil, residing at
Kodiyankunnath, Edathanattukara amsom desom, Mannarkkad Taluk.
This suit coming on this day for final hearing before me in the presence of
Sri. P. Narayanankutty, Advocate for plaintiff, and Sri. K. Sankaran, Advocate for
defendant No.1 and D3, and D2, D4 called absent set ex parte, and this Court delivered
the following:-
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JUDGMENT

This is a suit for Fixation of Boundary and Perpetual Injunction.

2. The plaint averments are as follows:- The plaint schedule property was under

jenmom rights of Pathiramanna Karumanappan Marattu Baghavathy

Devasom. Apputharakan is the father of the plaintiff. The father of the

plaintiff got possession over the plaint schedule property through kanam

rights. The father of the plaintiff executed and registered Sale deed bearing

No. 2054 of 1975 of SRO Mannarkkad and thereby transferred all his rights

over the plaint schedule property to the plaintiff and plaintiff’s husband

jointly. Then Land Tribunal - V, Ottapalam by disposing Application No. 339

of 1976 issued purchase certificate bearing No. 1603 of 1976 with respect to

the plaint schedule property in favour of the plaintiff and her husband jointly.

Then the husband of the plaintiff passed away. Vijayakrishnan, Udayakumar

and Kanjana are offsprings of the plaintiff and the plaintiff’s husband. As the

husband of the plaintiff died intestate, his right over the plaint schedule

property devolved upon plaintiff and aforesaid Children jointly who are his

legal heirs. Then the plaintiff, Vijayakrishnan and Kanjana jointly executed

and registered Release deed bearing No. 1469 of 2000 of SRO, Alanallur and
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thereby released all their right over the plaint schedule property. From

thereon, said Udayakumar is having exclusive ownership, possession and

enjoyment over the plaint schedule property. Other than the said

Udayakumar, no other persons have got any right over the plaint schedule

property. Said Udayakumar is having mental illness and he is living along

with the plaintiff at the house situated in the plaint schedule property. The

plaintiff is managing the plaint schedule property for said Udayakumar. At

the time of execution and registration of Sale deed bearing No. 2054 of 1975

of SRO Mannarkkad, the property which existed on the northern boundary of

the plaint schedule property was under possession of Perazhi Kunjatharakan.

Then said Perazhi Kunjatharakan sold the said property to the defendants.

For creating a pathway to the said property of the defendants, they are trying

to encroach into the plaint schedule property and take illegal possession of the

same. The defendants are trying to do so from the early days of them

purchasing their said property. The defendants have no right to do so. The

fencing and boundary structured on the northern boundary of the plaint

schedule property was destroyed when the plaintiff was not present at the

plaint schedule property. Then plaint schedule property is comprised in

survey No. 585/3 of Alanallur – III Village. The properties of the defendants

are not covered by survey No. 585/3. In order to fix the northern boundary of
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the plaint schedule property, the plaintiff measured the plaint schedule

property through Taluk Surveyor but the defendants are not ready to resolve

the issue. Thus this suit.

3. The defendants 1 and 3 filed written statement contending as follows :- The

suit is not sustainable either in law or in facts. The plaintiff has to prove the

rights over the plaint schedule property as claimed through the plaint. The

year on which application was submitted before Land Tribunal – V, Ottapalam

is not stated in the plaint. The defendants have no need to encroach upon the

plaint schedule property and take illegal possession of the same for

constructing pathway. When the defendants purchased their property, there

already existed pathway having of 10 feet width on the southern boundary of

the property of the defendants. The defendants and other people for ingress

and egress to their respective properties are using the said pathway frequently

without any objection. The averment that when the plaintiff was not present

at the plaint schedule property, the defendants destroyed fencing etc. which

were present on the northern boundary of the plaint schedule property is false.

On what date said incident happened and damages to what amount has

occurred are not stated in the plaint. Even though the suit is one for fixation

of boundary, the property of the plaintiff is alone scheduled in the plaint and
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that is not correct. The property of the defendants has to be scheduled

separately in the plaint. There exists pathway having width of 10 feet

separating the northern boundary of plaint schedule property from the

property of the defendants. The plaint schedule property and the property of

the defendants are not lying adjacent to each other. Thus this suit is filed

based on false averments. Filing of this suit for fixation of northern boundary

after measuring the plaint schedule property with the help of Taluk Surveyor

itself shows the non-credit worthiness of the plaintiff. If the defendants are

restrained from using the said pathway by passing decree of permanent

prohibitory injunction by this court, it will cause irreparable harm and

hardship to the defendants and also to other persons who use the said pathway

for ingress and egress to their respective properties. The cause of action as

alleged in the plaint is false. The defendants are not liable to pay the costs of

the suit to the plaintiff as sought for. The plaintiff is not entitled for any relief

as sought for. Hence prayed for dismissal of the suit upon costs.

4. As defendants 2 and 4 did not turn up, they were set ex parte.

5. Following issues were framed for trial :-

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1. Whether the plaintiff is entitled for a decree of fixation of northern

boundary of the plaint schedule property as sought for?
2. Whether the plaintiff is entitled for a decree of permanent prohibitory
injunction as sought for?
3. Relief and costs?

6. Son of the Plaintiff was examined as PW1 and Ext. A1 to A5 and Ext.C1 and

Ext.C2 were marked from the side of the plaintiff. The defendants neither

adduced oral evidence nor any documentary evidence. Ext.A2, Ext.A3 and

Ext.A5 being photocopies, is not admitted in evidence as they are struck by

Section 65 of Evidence Act.

7. Heard both sides.

8. Issue No.01 and 02 :- For convenience of the discussion, Issue No.01 and 02

are discussed together. The son of the plaintiff filed affidavit in lieu of

examination in chief and was examined as PW1. PW1 deposed that the plaint

schedule property was under jenm rights of Pathiramanna Karumanappan

Marattu Devasom. Apputharakan is the father of the plaintiff. The father of

the plaintiff got possession over the plaint schedule property through kanam

rights. The father of the plaintiff executed and registered Sale deed bearing
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No. 2054 of 1975 of SRO Mannarkkad and thereby transferred all his rights

over the plaint schedule property to the plaintiff and plaintiff’s husband

jointly. Then Land Tribunal - V, Ottapalam by disposing Application No. 339

of 1976 issued purchase certificate bearing No. 1603 of 1976 with respect to

the plaint schedule property in favour of the plaintiff and her husband jointly.

Then the husband of the plaintiff passed away. PW1, Udayakumar and

Kanjana are offsprings of the plaintiff and the plaintiff’s husband. As the

husband of the plaintiff died interstate, his right over the plaint schedule

property devolved upon plaintiff and aforesaid Children jointly who are his

legal heirs. Then the plaintiff, PW1 and Kanjana jointly executed and

registered Ext.P1 and thereby released all their right over the plaint schedule

property. From thereon, said Udayakumar is having exclusive ownership,

possession and enjoyment over the plaint schedule property. Other than the

said Udayakumar, no other persons have got any right over the plaint schedule

property. Said Udayakumar is having mental illness and he is living along

with the plaintiff at the house situated in the plaint schedule property. The

plaintiff is managing the plaint schedule property for said Udayakumar. At the

time of execution and registration of Sale deed bearing No. 2054 of 1975 of

SRO Mannarkkad, the property which existed on the northern boundary of the

plaint schedule property was under possession of Perazhi Kunjatharakan.

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Then said Perazhi Kunjatharakan sold said property to the defendants. For

creating a pathway to the said property of the defendants, they are trying to

encroach into the plaint schedule property and take illegal possession of the

same. The defendants are trying to do so from the early days of them

purchasing their said property. The defendants have no right to do so. The

fencing and boundary structured on the northern boundary of the plaint

schedule property was destroyed when the plaintiff was not present at the

plaint schedule property. Then plaint schedule property is comprised in

survey No. 585/3 of Alanallur – III village. The properties of the defendants

are not covered by survey No. 585/3. In order to fix the northern boundary of

the plaint schedule property, the plaintiff measured the plaint schedule

property through Taluk Surveyor but the defendants are not ready to resolve

the issue.

9. PW1 further deposed that the claim of the 1 st and 3rd defendant that a pathway

having width of 10 feet already existed on the southern boundary of their

respective properties when they purchased the same is false. The claim of the

1st and 3rd defendants that they have committed no trespass to the plaint

schedule property is also false. There is no need for detailing about the

description of properties of the defendants in the plaint. The claim of the 1 st

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and 3rd defendants that their respective properties are not lying adjacent to the

property of the plaintiff is also false.

10. In cross examination PW1 deposed that on the western boundary of the

plaint schedule property exists a pathway. PW1 further deposed that in the

year 2007, the northern portion of the plaint schedule property was taken into

illegal possession by the defendants by encroaching into the same. PW1

denied that on the northern boundary of the plaint schedule property exists a

pathway and further deposed that the properties of the defendants are lying

adjacent to the plaint schedule property.

11. The learned counsel for the defendants 1 and 3 relied on Ext.C1

commissioner’s report and Ext.C2 survey sketch and argued that the properties

of the defendants are not lying adjacent to the plaint schedule property but a

pathway is passing through the northern boundary of the plaint schedule

property. On examination of Ext.C1 and Ext.C2, the said argument holds

grounds. The learned counsel for the defendants further contended that the

plaintiff has admitted Ext.C1 and Ext.C2 and thereby effected amendment of

the plaint schedule. It was further argued by the learned counsel for the

defendants that PW1 while deposing stated that the defendants had encroached
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into the northern portion of the plaint schedule property and took illegal

possession of some portion of plaint schedule property from there. First of all

the plaintiff has not sought for any recovery of possession. Secondly, Ext.C1

and Ext.C2 never discussed about any encroachment. Thirdly, the plaintiff has

admitted Ext.C1 and Ext.C2 and amended the plaint schedule according to the

same. These all show that the said claim of encroachments are contradictory

to the case of the plaintiff.

12. The learned counsel for the defendants 1 and 3 relied on Nandakumara

Varma and Another v. Usha Varma and Another (2014 KHC 854 : 2015 (1)

KLJ 73) and argued that the Hon’ble High Court of Kerala through Judgment

cited supra had made it ample clear that to maintain a suit for fixation of

boundary, it is necessary that properties of the parties to the suit are adjoining

properties, which means that the two properties should be in contact with each

other.

13. On examination of Ext.C1 and Ext.C2 it is ample clear that the properties of

the defendants are not lying adjacent to the northern boundary of the plaint

schedule property. The decision cited supra is squarely applicable to the facts

of this case. As the northern boundary of the plaint schedule property is not
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lying in contact with the properties of the defendants, the plaintiff is not

entitled for fixation of northern boundary as sought for. Thus Issue No.01 is

found against the plaintiff.

14. The suit itself is for fixation of northern boundary of the plaint schedule

property. That evidences that the plaint schedule property has no fixed

northern boundary. For claiming a decree of permanent prohibitory

injunction, the plaint schedule property should have fixed boundaries and

thereby identifiable. As Issue No.01 is found against the plaintiff Issue No.02

also found against the plaintiff.

15. Issue No.03:- As Issue No.01 and 02 are found against the plaintiff, this court

finds that the suit is liable to be dismissed. Considering the facts and

circumstances of the case, there is no order as to costs.

In the result the suit is dismissed.

(Dictated to the confidential Assistant, transcribed and typed by her and

corrected and pronounced by me in open court on this the 30th day of June, 2023.)

Sd/-
Munsiff-Magistrate
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APPENDIX
Plaintiff's witness examined:-

PW1 09.03.2023 Vijayakrishnan, aged 67 years, S/o. Ramankutty Tharakan,

Edathanattukara.
Plaintiff's exhibits marked:-
A1 02.06.2000 Release deed No. 1469/2000 of SRO, Alanallur
A2 23.04.1975 Photocopy of Assignment deed No. 2054/1975 of SRO,
Mannarkkad
A3 09.11.1976 Photocopy of Purchase Certificate No. 1603/1976 of
Land Tribunal No. V, Ottapalam.
A4 18.06.2014 Basic Tax Receipt issued from Alanallur No. III Village
Office to plaintiff.
A5 02.09.2011 Photo copy of report submitted by Taluk Surveyor,
Mannarkkad to Tahsildar, Mannarkkad.
C1 01.06.2018 Commission Report filed by Advocate Commissioner
P. R. Jayakrishnan.
C2 01.06.2018 Survey Plan prepared and submited by Advocate
Commissioner with the assistance of Surveyor.
Defendants witness examined :- Nil
Defendants exhibits marked:- Nil
Court witness examined:- Nil.
Court exhibits marked:- Nil.

Sd/-
Sd Munsiff-Magistrate
//True Copy//
Munsiff-Magistrate
Copied by : Gayathri. M. K
Compared by : Manikandan. U
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FAIR/COPY JUDGMENT
O.S:- 203/2014
dated 30.06.2023
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