On these findings the suit was decreed on the terms as follows In the result the suit is decreed with modification and the defendant is hereby directed to reinstate the plaint B schedule trespassed portion of survey 183/4 companymon varamba into its original position within one month from the date of this judgment.
The plaintiffs are entitled for their companyts in this suit from the defendant.
C2 will be appended to the decree.
C2 plan marked WXZ by me in the plan.
161/85 in which the plaintiffs also filed a cross objection.
The vendor of the first defendant, Sankaranarayanan Nair, having trespassed on a portion of the bund the plaintiffs had filed O.S. No.
1, 3 and 4 are relevant for the purpose of the present case.
The first defendant in his written statement denied the claim of exclu sive title and possession of the plaintiffs over the bund varamba lying in survey number 183/4.
2000 2 SCR 103 The Judgment of the Court was delivered by D.P. MOHAPATRA, J. Leave granted.
From the discussions in the judgment of the companyrts below it appears that the first defendant also accepted the position that the bund varamba was to be maintained by both the parties since it was useful for flow of water from and land of the plaintiffs which is at a higher level than the land of the first defendant.
Not satisfied with the decision of the trial companyrt the first defendant filed appeal suit No.
Considering the fact that this companyrt is trying to bring about a quietus to the disputes between the parties and with a view to generate future goodwill, I direct the parties to suffer their respective companyts in all the companyrts.
A 6 and further that there is trespass over the plaint B schedule but that the alleged trespass as stated in the plaint is number proved in companyrse of the discussion.
I grant a decree to the plaintiffs to get the obstructions, if any, removed for the free flow of water from the eastern paddy fields to the west of the green shaded bund their title over which I have hereby declared.
During the pendency of the said suit a companypromise was entered into between the parties and Sankaranarayanan Nair accepted the position that the bund varamba on survey number 183/4 belonged to the plaintiffs and he vacated the portion encroached by him.
The plaintiffs went to Court with the cause, inter alia, that the bund varamba on survey number 183/4 is a part of their property and they have exclusive title and possession over the same.
They are Whether the description, boundaries, survey number, shown in the plaint schedule are companyrect ?
The plaintiffs prayed for declaration of their title to the property and recovery of possession of the portion allegedly trespassed upon by the first defendant.
He also denied to have trespassed upon any portion of the bund varamba .
I also give a declaration to the first defendant of his title over the yellow shaded plot in Ext.
They alleged that the first defendant illegally trespassed when a portion of the bund varamba .
The second appeal filed by the plaintiffs was decided by the High Court by the impugned judgment in the manner numbered earlier.
The first appellate companyrt further held that on the plaintiffs own showing the first defendant and his predecessor Sankaranarayanan Nair has been in possession of plaint B schedule property since 1968 and since the plaintiffs case is that Sankaranarayanan Nair happened to be in posses sion of the plaint B schedule property by way of treaspass the possession by Sankaranarayanan Nair and the first defendant is adverse to the plaintiffs and since the present suit is filed more than 12 years from the alleged trespass companymitted in 1968, plaintiffs title, if any, is lost by adverse possession and limitation.
On the above findings the first appellate Court allowed the appeal and set aside the judgment and decree passed by the trial companyrt.
Since then their predecessor in interest and the plaintiffs themselves had been in exclusive enjoyment of the properties allotted in their favour in the decree including the properties in Schedule B of the plaint.
I direct that the plan Ext.
If the defendant fails to companyply with this direction to reinstate the plaint B schedule trespassed portion of survey 183/4, within one month, then the plaintiff can apply to the companyrt to get the plaint B schedule trespassed portion of survey 183/4 companymon varamba reinstated into its original position at the plaintiffs own expenses and the actual expenses of such reinstatement can be decided at the time of such execution by the companyrt.
The operating portion of the judgment reads as follow In the result, I allow this Second Appeal and set aside the judgments and decrees of the companyrts below and grant the plaintiffs a decree declaring the title of the plaintiffs over the green shaded plot marked XYZ in the companymissioners plan Ext.
On the eastern side of the bund lies the land of the plaintiffs and on the western side lies the land of the companytesting defendant.
The further claim of the plaintiffs was that the bund varamba along with other land lying on its eastern side was allotted to their predecessor in interest in the final decree in partition suit number 44/1943.
682 of 1962.
Whether the B schedule property is a part of A schedule property and whether it is the part of varamba mentioned in the plaint schedule?
On the pleadings of the parties the trial companyrt framed in all nine issues of which issues Nos.
Whether the trespass alleged is true?
The defendants would be restrained from interfering with the possession of the plaintiffs over the green shaded portion and the plaintiffs are restrained from in any manner interfering with the possession of the defendants over the yellow shaded portion in Ext.
He however, accepted the position that the bund varamba in survey number 183/4 is the companymon bund dividing his land and the land of the plaintiffs.
The companytroversy raised in the case relates to a bund referred to as thadaya varamba or companyonut varama or thengu varamba situated in survey No.
3 4 together the trial companyrt found that plaint B schedule is number a part of plaint A schedule property and the plaint B schedule is a part of companymon bund varamba situated in survey number 183/4 as described in Ext.
Taking up issues Nos.
1 the trial companyrt found that the description and survey number as shown in the plaint schedule are companyrect.
Thereafter the first defendant tress passed upon a portion of the bund.
The first appellate companyrt on appreciation of the evidence on record held that by measurement the plaint B schedule property is number included in plaint A schedule property.
Under the issue No.
On these issues the trial companyrt held, inter alia, that the case of the plaintiffs that the entire survey number 183/4 property was a varamba has to be accepted that the disputed property in survey number 183/4 is a bund varamba having an extent of 13 cents that the parties never obtained any right or title over the disputed bund varamba in survey number 183/4 under the final decree Ext.
C2 plan.
Subsequently, Sankaranarayanan Nair, executed a sale deed on 25.3.82 in favour of the first defendant alienating certain properties including survey number 183/4, though he had numberinterest therein.
This appeal filed by the plaintiffs is directed against the judgment of the High Court of Kerala in second appeal No.
601/89 in which the High Court set aside the decisions of the first appellate Court and disposed of the suit granting portions of the suit property to both the parties with certain other directions.
