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P. Narayanan Nair Vs. E. Achuthan Nair and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Arbitration
CourtKerala High Court
Decided On
Case NumberA.S. No. 101 of 1967
Judge
Reported inAIR1974Ker51
ActsArbitration Act, 1940 - Sections 2 and 32; Code of Civil Procedure (CPC) , 1908 - Sections 9
AppellantP. Narayanan Nair
RespondentE. Achuthan Nair and anr.
Appellant Advocate K.A. Nair, Adv.
Respondent Advocate C.S. Balakrishnan and; M.C. Sen, Advs.
DispositionAppeal allowed
Cases ReferredMiller v. War
Excerpt:
property - possession - sections 2 and 32 of arbitration act, 1940 and section 9 of code of civil procedure, 1908 - appeal against order dismissing plaintiff suit for specification and demarcation of property - plaintiff title of property proved - property is private forest land - such land cannot be alienated without permission from district collector - plaintiff did move and obtain permit prior to suit - court below erred in view that plaintiff title not proved - appeal allowed. - - this apoeal is by the unsuccessful plaintiff. it is said that having failed in his attempt to obstruct the grant of the permit, first defendant moved the executive first class magistrate. a3 settlement provided for the appointment of three persons to do certain acts which it further provided, were to be.....subuamonian poti j.1. thesubject-matter of the suit from which this appeal arises is the dispute between the plaintiff and the first defendant as to the boundary between their properties. plaintiff is the owner of cheria cheerothum-kalam mala while the first defendant is the owner of puthenpeedikamala and the dispute is as to the boundary between these two properties. the plaintiff sued for specification and demarcation of the property comprised in the plaint schedule in accordance with the terms of an agreement reached between the plaintiff and the first defendant earlier and he also prayed for a perpetual injunction restraining the defendants and their men from trespassing upon the plaint property and interfering with the plaintiff's possession. there is a further relief prayed for in.....
Judgment:

Subuamonian Poti J.

1. Thesubject-matter of the suit from which this appeal arises is the dispute between the plaintiff and the first defendant as to the boundary between their properties. Plaintiff is the owner of Cheria Cheerothum-kalam Mala while the first defendant is the owner of Puthenpeedikamala and the dispute is as to the boundary between these two properties. The plaintiff sued for specification and demarcation of the property comprised in the plaint schedule in accordance with the terms of an agreement reached between the plaintiff and the first defendant earlier and he also prayed for a perpetual injunction restraining the defendants and their men from trespassing upon the plaint property and interfering with the plaintiff's possession. There is a further relief prayed for in the suit and that concerns the claim of damages in respect of trees, if any, cut by the defendants from the plaint property. The plaintiff lost the suit in the court below, that court finding that the suit was not maintainable and that even otherwise the plaintiff was not entitled to succeed. This apoeal is by the unsuccessful plaintiff.

2. The plaintiff claims to have obtained title to the plaint schedule property which is described in the plaint as Cheria Cheerothumkalam Malayaram, 1000 acres in extent, lying north of Kodappadimala, Kodappadi thodu and Puthenpeedikamala. According to him he obtained this inalayaram under Ex. A2 sale deed executed by one Manikalal Sivarai and Dr. C. C. John after taking permission for such transfer under the Madras Preservation of Private Forests Act. 1949. Such sanction was necessary since the property dealt with was private forest and without permission from the Collector any transfer would not be valid. The executants of Ext. A2 sale deed are said to have obtained title to the property from one Mahammad under Ext. .Al dated 20-9-1943, and this right so obtained by them under Ext Al was conveyed under Ext. A2.

3. After taking Ext. A2 sale deed plaintiff applied for a permit under Section 3 (2) of the Madras Preservation of Private Forests Act, 1949 from the Collector of the District concerned to enablehim to fell timber and clear the area of about 500 acres out of the said property. It is said that the plaintiff obtained permission from the Collector and for the purpose of clear felling pursuant to the permit, preliminary work by way of construction of approach road was commenced. The first defendant is said to be a part owner of Puthenpeedika Mala, which in the body of the plaint, plaintiff describes as lying south-west of the plaint property thouah in the schedule to the plaint it is described as in the southern boundary. First defendant applied for licence for felling trees from a large extent of Puthenpeedikamala. but he got permission for clear felling only from 100 acres lying on the south-western portion of his property. It is said that the first defendant taking advantage of the fact that he so obtained a permit for 100 acress in Puthenpeedikamala, attempted to disturb the plaintiff's peaceful possession and enioy-ment of a portion of the property in the north which was part of his Cheria Che-erothum Mala. It is said that prior to the grant of permission to the plaintiff for clear felling from the Cheria Cheerothum Mala first defendant had obiected to such grant and it was overruling such obiec-tion on the finding that plaintiff was actually in enjoyment and possession of the property that the permit had been granted to the plaintiff. It is said that having failed in his attempt to obstruct the grant of the permit, first defendant moved the Executive First Class Magistrate. Quilan-dy, but that did not bear any fruit. Plaintiff claims to be in undisputed possession of the entire property within the boundaries mentioned in the plaint schedule except a small portion regarding which there was said to be recent encroachment. In respect of that plaintiff averred that separate proceedings were proposed to be taken by him. The attempt of the first defendant to claim a portion of the property claimed by the plaintiff as Part of his is apparently on the basis that it is a part of Puthenpeedika Mala and therefore necessarily the dispute between the parties all along had been one as to what exactly was the southern boundary of the plaintiff's property which would form northern boundary of the first defendant's property. In view of this dispute plaintiff is said to have filed a suit O. S. 26 of 1960 in the Sub-Court of Badagara for the issue of a perpetual injunction restraining the first defendant, his men and dependants from trespassing upon the plaint-schedule property and it is said that an interim order against the first defendant had also been obtained. Thereafter on 25-6-1960 the plaintiff and the first defendant are seen to have entered into an agreement which is Ext. A3 in the case, by which they settled their dispute. Thiswas so settled at the Instance of mediators and the settlement concerned the boundaries between the properties. There are certain terms in the settlement and there concerned the location of the boundary on the spot. Ext. A3 mentioned the line that should be taken as the boundary between the properties of the parties and further provided that this will be located on the spot jointly by three persons men-tioned in the agreement. It was further agreed that their decision would be accepted by all concerned. There was also a provision that if on such determination it was seen that from the property north of the boundary line so determined, first defendant had cut any trees, the value of such trees, as determined by the mediators, should be paid by the first defendant to the plaintiff. Pursuant to this agreement a ioint statement was filed in O. S. 26 of 1960 and pursuant to such statement, the suit was dismissed without costs. It is said that though the mediators mentioned in Ext A3 attempted to settle matters by arbitration they were not successful due to the non-co-operation of the first defendant and also to some extent by the attitude of two of the arbitrators. One of the arbitrators who is said to have so joined hands with the first defendant is the second defendant in the suit. At any rate, there is no dispute that the plaintiff was told by letter dated 19-4-1966 that the arbitrators were unable to do the work and they were relieving themselves of the responsibility imposed on them pursuant to Ext. A3. It is said that in thp meanwhile the first defendant, with the assistance of the second defendant, felled timber worth Rs. 25000/- from the suit property. Plaintiff claimed damages of Rs. 20000/- in the plaint. It is said that the second defendant, thouah an arbitrator, entered into an agreement with the first defendant to purchase the timber felled unlawfully by the first defendant from the plaint sche-dule and that is why the second defendant is impleaded in the suit. According to the plaintiff what the arbitrators had to fix as boundary line by common agreement In terms of Ext. A3 was also the real boundary between the properties and at any rate, according to him, first defendant was estopped from contending that it would not be the boundary. In these circumstances plaintiff sued for the reliefs already mentioned.

4. The main contentions of the first defendant were that the suit was not maintainable both for the reason that in view of the agreement. Ext. A3, the only course open to the plaintiff was to seek a final decision through arbitration and also because, according to him. a suit for settlement of boundaries would not be maintainable in law. The first defendantalso disputed the claim of the plaintiff that he had cheria Cheerothum Mala with an extent of 1000 acres with the boundaries and measurements described in the plaint. According to him plaintiff's property lay further north of what he claimed and on a proper settlement of boundaries no portion of the property which is now claimed by the plaintiff as disputed would form Part of his Property.

5. During the trial of the suit successive plans were taken and the final plan Ext. C6 showed ACBD as the property in dispute according to the commissioner, though according to the plaintiff even a strip of land further south of ACBD was also part of the plaint property. After the said plan and the report accompanying it were submitted by the commissioner, first defendant filed an additional written statement contending that the property shown by the commissioner as plot ACBD in the plan was really in his possession as part of Puthenpeedika-mala and did not form part of Cheria Cheerothumkalam mala as claimed in the plaint. The second defendant also denied his liability for the claim for damaaes urged against him by the plaintiff.

6. The court below, after examining the provisions of the Arbitration Act, 1940 (hereinafter referred to as the Act) held that since the reliefs claimed in the suit were on the basis of Ext. A3 agreement, the suit was not maintainable in law. It further held that since what the plaintiff sought was the ascertainment of the boundary between his property and that of the first defendant, such a suit would not be maintainable in law. On the evidence, the court below came to the conclusion that the plan Ext. C6 showed the correct location of Cheria Cheerothumkalam mala alone with Puthenpeedika-mala, with reference to the boundaries, but it was not possible to say where exactly was the boundary that should separate these two malavarams and it further found that the plaintiff had neither title nor possession over the property shown as ACBD, but had title to the property lying north of that. On the question of claim for damages, there was no evidence and plaintiff did not press this claim. On these findings the suit was dismissed. Ext. C6 plan forms part of the decree by the direction made by the court below.

7. Before us first defendant's counsel, in answer to the appellant's claim on the merits, raised a preliminary objection that as held by the court below, this court also should find that the suit is not maintainable in law and if that be the case, there is no necessity to go into the merits of the case. It is only proper that we, therefore, examine this question before we examine the merits of the case.

8. Ext. A3 settlement provided for the appointment of three persons to do certain acts which it further provided, were to be binding on the plaintiff as well as the first defendant. It is not disputed that there has been no arbitration by these persons though it is said that they attempted to carry out their work but they could not do so. Whatever be the reason for this the fact is that there has been actually no arbitration and admittedly no attempt has been made by any of the parties to enforce the arbitration agreement under the provisions of the Act It is, therefore, said that a civil suit, which, in effect is one to enforce the agreement between the parties in regard to which the arbitration was provided for, should not be entertained by the court. The other plea as to non-maintainability is based upon the contention that no suit will lie for settling the boundaries of ad-ioining properties even if there be confusion as to the boundaries unless some further circumstance such as fraud, which would be sufficient to invoke equitable considerations are also shown. We will examine both these pleas here.

9. It is necessary to refer to Ext. A3 to understand the objection of the first defendant that the suit is one to enforce the arbitration Agreement. Prior to the execution of Ext. A3. there were a number of proceedings between the parties, civil and criminal, and these were settled under Ext. A3. The agreement starts by stating that:-- (Portion in Malay-alam omitted:-- Ed.)

(The disputes regarding the boundaries of Cheria Cheerothumakalam Mala of the first party and Puthenpeedikamala alias Elamala of the second party have been mediated and settled subiect to the following terms :) We cannot but read this as indicating that the dispute as to the boundaries have been finally settled between the parties unless it be there is anything in the terms of the document which follow which would compel us to read it otherwise and according to us those terms do not indicate that as regards the settlement of boundaries parties had not reached a final understanding. We find that the terms which follow are only directions concerning the mode of ascertainment of the boundaries on the spot pursuant to what had been settled. Term No. 1 in the agreement was that a particular line, location of which was detailed therein, was to be treated as the boundary between the Puthenpeedika Mala of the second party and Cheria Cheerothumkalam Mala of the first party and it was further provided that considering these properties respectively as that of these parties they were to be in possession of these respective portions. That line which was to be theboundary line was described in Ext A3 as-- (portion in Malavalam omitted-- Ed.) (The estern boundary of the property which is a portion of Puthenpeedikamala and which is being enjoyed by Parambatt Velavudhan and his son under a registered lease deed of 10th April, 1952 is mentioned as thodu (in that document). Whether that thodu is one which starts from Kodap-padimala has to be examined and if it is the one so starting; from Kodnppadi Mala and if it flows west and then east of the property in the possession of Velavudhan. then, from the point where, after flow-ins from east to west, it bends to the south if a line is drawn west to Muthalamarap-panmala, that line must be taken as the boundary between Puthenpeedika Mala and Cheria Cheerothumkalam Mala). Term No. 2 in the agreement refers to the permission given to the second party to fell trees and term No. 3 refers to the liability of the second defendant to account for the value of the trees found to be standing north of the boundary determined in accordance with the agreement, the amount payable being that determined by those mediators mentioned in the agreement. The 4th term in the agreement mentions the names of three persons who are authorised to inspect and decide in accordance with what was said in the agreement:

'Ithu prakaram vasthu parisodhichhu theerumanican'.

It was further provided that both Parties would accept the decision of these persons The expenses of the arbitrators were to be borne eaually by both parties.

10. Before referring to the relevant provision of law on which the first defendant places reliance in support of his plea that the suit would be barred by the provisions of the Act, we must also refer to the nature of the reliefs which the plaintiff has prayed for in the suit, since, according to the first defendant, what the plaintiff seeks in the suit is enforcement of the agreement, Ext. A3. According to the plaintiff that is not the scope of the suit. The plaint proceeds as if the question of boundary between the plaintiff's property and first defendant's property had been finally settled by the agreement and what was left to be decided was the location of the said boundary on the spot. The agreement, contends the plaintiff, describes in detail the line that would re-ally be the demarcating the boundary and what is left is only to locate that line on the spot with reference to the description in Ext. A3. It is therefore the plaintiff's case that title has been decided by the settlement between the parties and the court is not called upon to decide it. But since the parties are not agreed about the location of the particular boundary onthe spot on the basis of the description in Ext. A3, the plaintiff had to move the court as the owner of his property to have the boundary settled and it is the plaintiff's case that the relief that is asked for in this behalf is in the capacity of a proprietor of property based on his title and not by way of enforcement of any arbitration agreement. If that be the case, according to him. there is no scope for the plea that the provisions of the Act would debar such a suit. It is further pointed out that the parties are not in dispute on the question whether the thodu (challel) which flows east of Velavudhan's property as located in Ext. C6 Plan starts from Kodappadimala. That of course is true. The only dispute is from which point of Kodappadimala the thodu starts. There is no case for either the plaintiff or the first defendant that it does not start from Kodappadimala nor is there any case that it does not flow alons the eastern boundary of Velayudhan's property.

11. Now we will advert to the relevant provisions of the Act on which reliance is placed by the first defendant to support his case. Section 32 as it now stands reads thus:

'Notwithstanding any law for the time being in force, no suit shall lie on any ground whatsoever for a decision upon the existence, effect or validity of an arbitration agreement or award, nor shall any arbitration agreement or award be enforced, set aside, amended, modified or in any way affected otherwise than as provided in this Act.'

The word 'enforced' occurring in this section was inserted by the Specific Relief Act, 47 of 1963 and that was with effect from 1-3-1964. This suit was filed in 1962 long before the amendment of the Section by the said insertion and therefore as the section stood at the time when the suit was filed, there was no bar to any suit to enforce an award. But no suit could have been filed for a decision upon the existence of an arbitration agreement Of course, we are not concerned with that here. The suit is also not one to set aside, amend or modify any award. According to the first defendant, the suit is one to enforce an award and if it be not one to enforce an award is one which would affect the arbitration agreement otherwise than as provided in the Act and therefore a suit would not lie.

12. We have already said that when the suit was filed there was no prohibition that it should not be one to enforce an award. It is not contended that the amendment is retrospective. Therefore there Is no substance In this objection.

13. Even apart from the answer which we have accepted in the previous paragraph, we do not think that the suit is one to enforce an award. The process of arbitration is the determination of a preexisting dispute. Every agreement entered into for the purpose of avoiding a dispute cannot be said to be an arbitration agreement. If parties are at variance on any issue, the issue has necessarily to be settled as between them. The process of reference to an arbitration could be agreed upon by the parties and in such cases the arbitrators' award will be binding upon the parties to such agreement. But if it be that both parties agree that certain services will be rendered by mediators to settle matters which are not yet in dispute between them, but such settlement is desirable to avoid disputes in future, even though the persons who are appointed as mediators are styled as arbitrators they will not become arbitrators within the meaning of the Act.

14. The essential difference between arbitration in the proper sense of the term and appraisement valuation can best be illustrated by reference to the case in Collins v. Collins ((1858) 28 LJ Ch 184). In that case the arbitrators were to fix the value of the purchase money for a property which was the Sub-ject of a sale transaction between the parties and the question arose whether they were arbitrators in the real sense. Dealing with this the Master of the Rolls said:

'.....but in this case I do not thinkthat the fixing the price of a property is 'arbitration' in the proper sense. An arbitration is a reference to the decision of one or more persons, either with or without an umpire, of a particular matter in difference between the parties.' The essential distinction between an arbitration technically so called and an arbitration in a loose sense of the term could best be noticed by the following illustration in that judgment.

'If two persons enter into an agreement for the sale of property, and try to settle the terms, but cannot agree, and after dispute and discussion respecting the price, say, we will refer the auestion of price to A. B., he shall settle it, and they agree that the matter shall be referred to his arbitration, that would appear to be, 'arbitration', in the proper sense of the term, within the meaning of the act: but if they agree to a price to be fixed by another, that does not appear to be arbitration.'

Reference is made to the case of Leeds v. Burrows and Hemingway's case ((1810) 12 East 1). Applying the rule in those cases the Master of the Rolls said thus:

'.....but I look at this case simplyas in the nature of a contract, to the pur-poses of which contract this was auxiliary, and in order to save discussion, and to prevent differences which might arise between the parties, it was agreed that the price should be settled by the decision of two persons who were to be called in, who were to call in an umpire before they proceeded to the settlement.'

The same view was expressed by Cock-burn C. J. in 'In the matter of an arbitration between John Mason Hopper. William Barningham. and John Wgihtson' (2 QB 367): while agreeing with the rule laid down in ((1859) 28 LJ Ch 184) Cockburn C. J. observed that the rule must not be taken to comprehend every case of appraisement of compensation or value and that it must depend upon the circumstances of each particular case. Blackburn J. agreed with this view and observed that--'An appraisement is not necessarily an award. If those cases are to be supposed to go so far as to decide that an agreement to assess compensation and ascertain; value could not be a matter of arbitration and there could be no award. I should certainly pause before I concurred in them.'

15. In view of the fact that in the case before them the arbitrators were required to make a judicial determination of the case and a iudicial determination was actually made, the court held that there was an agreement for submission to arbitration.

16. Later. Lord Esher, M. R. in In re Carus-Wilson And Greene (1886) 56 LJ QB 530 has very pithily summed up this position. The learned Lord observed thus:

'If It appears from the terms of the agreement, by which a matter is submitted to any person, that that which he is to do is to be in the nature of a iudicial enquiry, and that the object is that he should hear the parties and decide the matter upon evidence to be laid before him, there the person is an arbitrator. But if it appears that the obiect of appointing the person was rot to settle differences after they had arisen, but to preclude differences from arising, there thp person appointed is not an arbitrator. There is an intermediate class of cases in which a person is appointed to determine disputes after they have arisen, but is not bound to hear evidence or argument. In those cases it may be more difficult to say whether the person is a valuer or an arbitrator. They must be determined according to the circumstances in each particular instance by the intention of the parties. At present I say nothing about this class of case. In the case before us it seems to me clear that the obiect of appointing the umpire was to preclude differences from arising.'

17. Bearing in mind the essential distinction between a case where a per-son is not functioning to decide an existing dispute and a case where such person is appointed to settle an existing difference between parties we do not think that the clause in Ext. A3 agreement relating to the appointment of three persons to locate boundaries on the spot on the basis of the description agreed upon by the parties and to assess the value of the trees, if any, found cut from the area determined as falling on one side or other of the line lends to the construction that the agreement is one for arbitration.

18. Much less can it be said that this is a suit to enforce an arbitration agreement, assuming the agreement is one such. Apparently the suit is one by which a title-holder to property seeks to safeguard his interest in the property. If the plaintiff has a right to sue for the relief claimed in the plaint independent of any right arisinf from the agreement, the suit cannot be said to be one to enforce any arbitration agreement. We have already considered Ext. A3 agreement as in two parts, the first as the opening portion of the agreement itself indicates, a settlement in regard to the boundaries between the two properties by specifying what is to be the boundary and the second part how to settle such boundary on the spot after inspection. As we read the agreement, it is this latter part alone that is left to be decided by the three persons appointed as arbitrators or mediators (we are using both these terms because both are used in Ext. A3). Therefore, if title to the property is settled by Ext. A3 and based on the title the boundary as specified in the agreement itself is left to be located any suit by a title-holder on the basis of his title would be maintainable and in such a suit the plaintiff cannot he said to be invoking any right that he has obtained under the arbitration clause. If that be the case, the suit cannot be one to enforce any arbitration agreement, assuming that the relevant clause is one such.

19. The suit as framed is not either expressly or by implication one in which the arbitration agreement is sought to be given effect to. That agreement has been given the go-bye. The reliefs sought are incidental to and arising from the title to the property and therefore we find no substance in the contention that the suit is one to enforce an arbitration agreement.

20. We cannot also accede to the contention of counsel for the first defendant that the arbitration agreement would be affected by the suit. It is not the first defendant's case that the agreement is in any way sought to be varied and it is difficult to understand, in the circumst-ances of the case, how it could be said that the agreement would be affected by the suit. No materials have been placed before us by counsel for the first defendant to assume that it will in any way be so affected.

21. Counsel for the plaintiff refers to Section 34 of the Act in support of his plea that if at all the first defendant had any obiection to the legal proceedings commenced against him in respect of what he claims to be an arbitration agreement in existence it was up to him to have raised objection to the maintainability of the suit, before filing the written statement and in that case the matter could have been stayed under Section 34 of the Act if the obiection was found to be good. It is agreed that no such obiection was raised at or before the filing of the written statement. If that be the case, according to the plaintiff's counsel, the obiection now raised need not be adjudicated upon. In view of what we have already said on the auestion of bar under Section 32 of the Act. we do not think that we should deal with this question here.

22. Next we come to the case of the first defendant that the suit as it is one merely for locating the boundaries would not be sustainable. Counsel relies more on the decision of a learned single Judge of this Court to support his plea than on any specific rule of law which, according to him. establishes his plea A learned Judge of this Court in the deci-sion in Ravappan v. Yagappan Nadar. (1958 Ker LJ 1177) observed that in such cases-

'.....you must lay a foundationfor this species of relief not merely by showing that the boundaries are confused but that the confusion has arisen from some misconduct on the part of the defendant or those under whom he claims of which you have a right to complain and which render it incumbent on him to cooperate in re-establishing them.' Varadaraia Iyengar J. in a very short Judgment, was only purporting to follow the decision in Speer v. Crawler ((1817) 35-E. R. 997). There is no independent discussion of this question in the Judgment of the learned Judge. How far the reliance upon the precedents referred to in that decision is justified is a matter which will have to be examined here.

23. The law of procedure in India is to be found in the Code of Civil Procedure. Of course, it goes without saving that it is a fundamental principle that where there is a right there is a remedy. A litigant having a grievance of a civil nature has accordingly a right, to seek remedy and that, unless otherwise provided, is by instituting a suit in some courtor other This right need not be conferred by any statute. The risht to institute a suit to seek remedy for infringemment of his right or for protection of his right could be exercised unless some provision of law expressly or imoliedly bars the cognizance of such suit This is the principle embodied in Section 9 of the Code of Civil Procedure. 1908. That section reads thus:

'9. The courts shall (subiect to the provisions herein contained) have juris-diction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation: A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.'

24. There is no case that cognizance of suits such as the one before us is expressly or impliedly barred. If the suit is one of a civil nature, the court will have iurisdiction to try it. We may observe at the outset that this is not the approach made to the question by Vara-daraia Iyengar J. in the decision referred to by us earlier or in the precedents relied on by the learned Judge. In the context of the law of our country, this is the question which appears to be pertinent.

25. The courts deal with questions which relate to rights of citizens and not matters which are purely social such as questions relating to caste or questions relating to religious ceremonies. Even in those classes of cases where such questions arise, if the question as to any right to property or any civil right is also involved and that cannot be decided without the determination of the question of religious rites or ceremonies those may be decided by the civil court. The word 'civil' when used as an adiective to 'law' has been understood by the Allahabad High Court as meaning 'pertaining to the private rights and remedies of a citizen as distinguished from criminal, political etc.' (Keshav Gupta v. Ghayur Ali Khan AIR 1959 All 607). The dictionary meaning of the term 'civil' is also in support of this definition. The term 'civil' means 'of citizen.' Therefore a suit brought for the enforcement of rights or obligations of a person as a citizen of a State is a suit of a civil nature. The civil right may arise from ownership of property, from the right to office or from status or from statutes. As an owner of property a person is entitled to keep undisturbed person secure his title to the property and even seek declaration where a cloud is cast on his title. He may seek recovery of possession of Pro-perty Where it has gone into the possession of another and he is entitled to immediate possession. He can seek an injunction from court restraining any attempt at forcible taking of possession by another If he apprehends commission of waste in the property he can seek an order of restraint by way of iniunction All these suits are suits where he seeks to protect his right to property and therefore these are suits of civil nature. Where he seeks to protect his property by having the boundaries of his property demarcated from that of his neighbour apprehending that the neighbour would otherwise trespass upon his property claiming it as his1 own it appears to us to be in the category of suits where such person seeks to protect his rights to property. We cannot find any reason to assume that such a suit; is not one of a civil nature.

26. Tracts of lands which are either unsuryeyed or which are forest or barren area owned by neighbouing proprietors are now and then seen to be without any definite boundary marks. In regard to such land there may be cases where the owners do not exercise acts of possession and possession very often is deemed to follow title. In regard to such land disputes may arise as to where exactly should the boundaries be drawn. It would not be a case where either party denies the title of the other, but there may be bona fide dispute between the parties as to where they should draw the line to demarcate their respective holdings. It is only when one of the parties or both of them think of exercising acts of possession in the land that this dispute will come into focus and then, if they cannot settle the matter between themselves the consequence would be that each one would try to take possession of the property which is claimed as that of the other. It is only natural that then they think of resorting to the civil court to settle the dispute as to the boundary. If a person who apprehends trespass to his property has a right to approach a civil court to protect his possession, we see no rational difference between such a case and the one where a person has reasonable apprehension that in the absence of a definite boundary demarcated on the spot his title and possession may be in jeopardy. If a person could come to a court for declaration of his title to property and removal of the cloud on his title even though there is no actual encroachment or infringement upon that title, but only because he has sufficient reason to apprehend an imminent infringement, we do not see any reason why a suit for determining the dispute as to the boundaries, very often in apprehension of a trespass in the event of that disputenot being settled by court, should not lie in Court. Of course whether on the facts of a case there is any cause of action for the suit is a different matter altogether.

27. It is not contended even by counsel for the first defendant that the plaintiff will not be entitled to seek determination of boundary in any suit whatsoeyer. Even accordins to counsel, in a suit for recovery of possession he can seek determination of the boundary but the relief must be not merely for determination but also for recovery. We do not see how this has any relevancy on the question whether the suit for settlement of boundaries is or is not a suit of a civil nature. If it is, Section 9 of the Code of Civil Procedure enables the suit to be filed and there is no express or implied bar under any of the provision of the Statutes by reason of which the suit could be held to be not maintainable.

28. We can also state from our experience at the bar that this type of suits are not unfamiliar to this Dart of our country. In fact in several areas of the State suits for determination of boundaries when the boundaries between the holdings are disputed are a matter of common occurrence and the maintainability of such suits have not, till recently, been doubted.

29. As we indicated, earlier in this judgment, the question which we have dealt with here had not been adverted to in the decision of the learned single Judge in (1958 Ker LJ 1177). The learned Judge relies on a decision in the English case (1817) 35 E. R. 997) which had been referred to in Kavasji v. Hor-masji ((1905) ILR 29 Bom 73). It is only proper that we refer, in brief, to the English law on the suibiect, in this context.

30. Bills to settle boundaries had been entertained in English courts from very ancient times, from so early as the reign of James the Ist. The iurisdiction of the English courts to issue commissions to ascertain boundaries is very ancient. But its origin is not free from doubt. The rigour of the technical forms of action was relieved in England by the exercise of the eauity iurisdiction of the court of Chancery. It is this iurisdiction which gave relief to parties where relief could not be had by way of one or other of the technical forms of action which were recognised in the courts of law in England. In cases of bills for settlement of boundaries it was to the Chancery Court that resort was made by the parties and therefore in the grant of reliefs in such suits the courts had been considering whether there were grounds for exercise of the equitable jurisdiction of the court. LordKeeper in the leading case Wake v. Con-years ((1759) 38 E. R. 712) was of the view that suits for determining boundaries ordinarily came to the Court of Chancery under the eauity of preventing multipli-city of suits. He observed thus:

'..... they have been sometimesattended with more expense than if all the suits which they apprehended, and which they were brought to prevent, had actually been tried at law.'

The learned Judge laid down the dictum, which has been followed in many later cases, that:--

'This court has, in my opinion, no power to fix the boundaries of legal estates, unless some eauity is superinduced by the act of the parties, as some particular circumstance of fraud: or confusion, where one party has ploughed too near the other, or the like; nor has this court a power to issue such commissions of course as here prayed.'

It may be noticed that the conditions for the cognizance by a court of a Bill for the determination of boundaries were laid down only because the court was not obliged in law to exercise its iurisdiction and if it was the eauitable juris-diction that had to be exercised, eauity must be shown. Confusion of boundaries by itself was, according to Lord Keeper, a circumstance of eauity which would be sufficient for the exercise of the Iurisdiction of the court of Chancery lust as fraud was another similar circumstance. This decision of Lord Keeper was followed by Grand M. R. in ((1817) 2 Mer 410). The Master of the Rolls in that case expressed the view that for this species of relief, plaintiff must lay a foundation not merely by showing that the boundaries are confused, but that the confusion has arisen from some misconduct on the part of the defendant, or those under whom he claims, of which the plaintiff had a right to complain, and which renders it incumbent on him to co-operate in reestablishing them. This view has been followed by Lord Eldon in Miller v. War-mington ((1830) 1 J & W 484). It is not necessary to go further into this question since we see no warrant to follow the English law based, as it is, upon its peculiar historical background. The Question In the Indian context is not whether any equitable consideration has to be shown before a plaintiff in a suit gets the relief and therefore what was said in the decisions of the English Courts on this particular form of action may not have relevance here. As we pointed out earlier in this iudgment, the only question that may be releyant to the issue in a suit of this nature in the Courts in India is whether the suit is one of a civil nature. Once ifis shown that it is, no other auestion would arise and the courts will have to entertain the suit and try it on the merits. The decision in ((1905) ILR 29 Bom 73) which has also been referred to by Vara-daraja Iyensar J in (1958 Ker LJ 1177] has also simply purported to follow the English cases without considering how far the law should be applicable to this country. We. therefore, are of the view that the decision in (1958 Ker LJ 1177) has not laid down the correct law and has therefore to be overruled.

31. Now we will come to the merits of the dispute and the evidence in the case bearing on it. Whatever might have been the difference between the parties earlier, after they settled these differences under Ext. A3, what remained to be determined was only the boundary line in accordance with the terms of that agreement. Admittedly, on the spot there Is a thodu flowing from Kodappadimala and passing along the eastern side of the property held by Parambattu Velayu-dhan and his son Damodaran. Reference In Ext. A3 is to that thodu. The particular point referred to in that thodu has to be found out and a line has to be drawn from that point to Muthalamarappan Mala on the west. That Point is said to be at the bend where the thodu flowing from east to west turns south. As there is no dispute about the identity of the Kodap-padi thodu, the only auestion could be as to where exactly this thodu. after flowing from east to west turns southwards and that is really the controversy between tile parties. In the plan, Ext. C6. the commissioner has noted this point as the point D and has drawn a line from point D to point B which is on the west and which is said to correspond to the northern portion of the Muthalamarappan Mala. Therefore, the line DB could be taken as the boundary line in case the location of the south-eastern point as point D has been properly made. We may observe here that the plaintiff has a case in his evidence as PW1 that the south-eastern point is a little further south than point D and that point has been shown by him and marked as point M. According to him MN should be the boundary line and not DB. As there is actually no boundary on the spot and the respective parties are anxious to get as much as possible for themselves, this attempt of the plaintiff in the box. without anything to substantiate it, as found by the court below. could only be considered as an attempt to bring the southern boundary further down so as to get a little bit more area. It has been found that there is no bend at point M agreeing with the description in Ext A3 and nothing has been shown tothe contrary. Therefore the further case of plaintiff as PW1 may be dismissed as untenable. The auestion would then be whether the correct line should be that marked as BD in Ext. C6 plan or that which is further north not marked in the plan a boundary to which we will refer when discussing the case of the first defendant in this behalf.

32. Considerable Part of the judgment of the court below has been devoted to the discussion of the boundaries as mentioned in the respective documents of both the parties and it would appear that the decision of the case should, according to the court below, primarily rest upon an appreciation of the boundaries noticed in the documents. This approach may not be auite correct in this case. The property purchased by the plaintiff under Ext. A-2 could very well be identified even without resolving the location of the boundaries mentioned in the schedule to that document as the sale deed Ext. A-2 was accompanied by a plan Ext. A-46 which clearly showed what the property dealt with was. Therefore, if the idea is to find out what exactly was the area the plaintiff dealt with under Ext. A-2 Ext A-16 plan will be of assistance and the emphasis normally placed on the location of the disputed boundaries mentioned as boundaries of the property in the body of the document may not be placed here. There is the further fact that the parties have settled their disputes and acknowledged their respective title and therefore the auestion as to what exactly was the area comprised in the respective documents of title may not be decisive in this case. If the plaintiff's title deed purports to be for a property even lying south of the plot ACBD as contended by the plaintiff and by Ext. A-3 what was done was to limit the plaintiff's claim up to the line BD, then the auestion as to what exactly are the boundaries of the plaintiff's pro-perty or defendant's property as described in their respective documents of title may not be very material. However a decision on the auestion as to what was intended by the plaintiff to be taken -under Ext. A-2 sale deed or what was the property purportedly dealt with by the first defendant and his predecessors is auite easy in this case. Admittedly, what was sold under Ext. A-2 was the property covered by Ext. A-1 what was so sold was indicated in the plan Ext. A-16. Considering the location of the property so sold under Ext. A-2 as noticed in Ext. A-16 plan with reference to the property marked in yellow colour in Ext. C-6 plan prepared by the commissioner, it is easy to find that Ext. A-2 property is the yellow marked portion in Ext. C-6,One important fact to be noticed is that Ext C-6 plan shows a channel or river (we are referring to it in these terms because it is referred to as a thodu and also a puzha in the documents) lies all along the western boundary of the Plot ACBD as also the property lying south of it and a similar channel or river lies on the east and these meet in the south so much so that ACBD as well as the portion south of it is enclosed within the said watercourse. This watercourse is a pronounced land mark. There cannot be any dispute about its location and in fact there is none. The same watercourse is located in Ext. A-16 plan. The entire property lying inside the watercourse was taken as plaintiff's Cheerothumkalam estate under Ext. A-2 sale taken by plaintiff. That is limited to the line BD in Ext. C-6 plan. This shows that at the time of Ext. A-2 plaintiff's case was that his property lay even further south, that it comprised the entire property lying within the watercourse whereas in Ext. A-3 agreement he limited his claim up to the line BD or whatever is to be fixed as the boundary line in terms of Ext. A-3 leaving a substantial portion of forest area on the south as puthenpeedikamala. Once this is borne in mind, it is easy to understand the reason for location of puthenpeedikamala of the first defendant as on the Southern side of Kodappadi-thodu in Ext. A16 plan. The attempt, then, apparently, was to displace the first defendant's property beyond the watercourse and that, apparently, based upon a claim for the entire property within the watercourse as part of Cheerothumkalam-mala. Therefore the description of puthenpeedikamala as the southern boundary in Ext. A2 and its location as lying south of Kodappadithodu in Ext. A16 are consistent with the case of the plaintiff when he took Ext. A2 thoush plaintiff has given up that case now by conceding the title of the first defendant to some portion within the watercourse. The court below, without realising this situation, observed in paragraph 21 of its iudgment that 'puthenpeedikakunnu in Ext. A16 is shown as lying to the south of Kqdappadi thodu and it is also shown as lying adjacent to Kodappadimala. at the east. This is totally incorrect.'

33. It is also easy to find that the documents of title relied on by the first defendant also take in property in the south lying within the watercourse. What is its northern boundary, and whether it extends beyond BD on the north are matters which may not be evident on the face of these documents but that the property is within the watercourse is apparent. The result is that while the disputed portion is seen comprised in the do-cuments of title of the plaintiff and his predecessors-in-interest, though puthenpeedikamala takes in property within the watercourse, which is of course a part of the property covered by Ext. A2. it is not possible to say on the description in the documents of title of the first defendant that it extends beyond the line BD. In fact no attempt has been made before us to indicate that this is the case nor is this seen considered by the court below in its iudgment. However, apart from this, in view of Ext. A3 settlement reached between the parties agreeing to the boundary line between the properties, and leaving only the Question of determination of that line on the spot we are concerned with the question of locating that boundary in terms of Ext. A3.

34. The attempt must be to find out the point in Kodappadithodu where the thodu bends southwards after flowing east to west. It must be observed that at no particular point does this thodu flow exactly from east to west. The best that could be said is that the thodu at some point flows from north-east to south-west. Whether it be the plaintiff's case of location or the defendant's case of location, it has to be taken that such flow is not exactly as east to west flow as mentioned in Ext. A3. From Point A to point D the flow is from north west to southeast and that has to be taken as necessarily involving a flow of the thodu from east to west if there is nq portion of the thodu which agrees more with this description. It is also seen from, the plan that at point D the flow turns from that point to southwards and that is alone the eastern portion of Velavudhan's property. This is the reason why point D has been marked as the appropriate point. In these circumstances we see no reason not to hold that it is not the point that should be noted in accordance with Ext. A3. But the case of the first defendant is that the channel which is shown as Kodappadithodu though marked in the plan Ext. C6 as starting from point A really starts from further north and from the point where is so starts there is a well pronounced flow which could be said to be from east to west and if that be the case, the point where it turns south is a Point, much north of point A and the line should be drawn from that point to point C. That would mean that even AC will not be the northern boundary but that will be further north. It was contended by the first defendant's counsel that if D could be taken as the point where there is a bend to the south, with greater force could it be said that the bend at the point where the figure '97' is noted in the plan Ext. C6 above point A can be taken as the turning point southwards and though there is nothodu there now there is a dry bed, of the channel. The complaint is that the commissioner has not noticed this dry bed. DW1 who is the daughter of the first de-fendant stated that though she wanted the commissioner to inspect the dry bed. the commissioner did not dp so as there was thick forest on either side of the channel and the forest area was cleared only up to point A. She would say that the commissioner did not examine the portion of the channel north of it. As it is. there is no evidence in the case which would substantiate the first defendant's case that the Kodappadi thodu starts from further north of point A. There is no independent evidence of any sign of a thodu which once existed in that area. The commissioner who is examined as PW2 was asked about it and he is very specific in his answer. He denied the existence of any thodu and on the evidence available it is not possible to displace point A so as to find some other point which, according to the defendant, should be taken as the point from which the channel starts. Nor can it be said that there is any portion showing a marked flow from east to west along the boundary of the property north of point A.

35. It is true that In Ext. C5 report filed by the same commissioner along with Ext. C3 plan he had reported that the thodu starts from the point A. that for a short distance, about 300 links, there is no water that the thodu flows south and that he did not find at spot A or anywhere north of the plot belonging to Ve-layudhan and his son. a flow of the thodu from east to west or any bend towards the south. Of course, possibly he is justified in this since at no point does the channel really flow east to west in a marked manner and as we said earlier it flows only from north-east to south-west. When he was in the box this was put to him. He explains this and this evidence substantiates the location of point D as the point contemplated as the south-eastern boundary of the plaintiffs property in Ext. A3. The court below which has denied the plaintiff a decree has not disbelieved the commissioner nor has it reiected the report. In fact the court refers to the commissioner as 'a senior advocate of this court, whose competency as well as integrity is unquestionable.'

36. The south-western point of the plaintiff's property is the point to which a line is to be drawn from the southeastern point which has been found to be point D. Point B has been so located in Ext. C6 as lying in the northern portion of Muthalamarappan Mala. That corresponds to the description in Ext. A3. Muthalamarappan mala is shown as lying immediately west of point B in Ext. C6plan. The first defendant apparently has a case that Muthalamarappan Mala is really a Mala lying further north, though for this there is no evidence in the case. That remains unsubstantiated. In fact, if it is such an extensive area, as is spoken to by DW1, then Muthalamarappan Mala would not have been referred to as a point to which a line should be drawn from the south-eastern corner of the plaintiff's property. Therefore, necessarily Muthalamarappan Mala could not be such an extensive Mala. That again goes to negative the first defendant's case that Muthalamarappan Mala as located in Ext. C6 on the western side of point B cannot be the Muthalamarappan Mala referred to in Ext. A3. Apparently the attempt of the first defendant is to locate Muthalamarappan mala as west of Point C since, according to him, that point is the south-eastern point of the property of the plaintiff.

37. Parambatt Velayudhan and Damodaran are enjoying a portion of Puthenpeedikamala under Ext. B6 taken from an assignee of persons claiming 300 out of the 600 acres of Puthenpeedikamala. Though according to the first defendant that 300 acres is in the south it cannot be possibly said so as the claimants of the said 300 acres are seen to have executed documents in respect of areas other than in the southern 300 acres. Parambatt Ve-layudhan's plot has been located as somewhere immediately south of DB line. According to the first defendant: if that is in southern 300 acres, his 300 acres must be further north and that would mean that plaintiff is not entitled to plot ACBD. Plaintiff is not bound by any arrangement that has been reached between those who took Puthenpeedikamala nor is he concerned with disputes inter se between them. In fact, they are not agreed upon what area each one took, as evidenced from a litigation that arose on account of the discovery of a treasure-trove in a portion of Puthenpeedikamala. It is under a will Ext. B2 that Puthenpeedikamala happened to be obtained by the neices and sons of the original owner in eaual halves. That does not mention any division into northern or southern halyes. In these circumstances the fact that Velavudhan, who took a document under some part-owners of Puthenpeedikamala is In occupation of a portion immediately south of BD line will not be sufficient to assume title of the first defendant to 300 acres further north of it. There are two documents executed by part owners of Puthenpeedikamala, who, according to the first defendant, are entitled only to the southern 300 acres and it Is said that under these documents one Meprath Kunju and one. Katterkara Joseph are in occupation of certain portions northof BD line. This Is shown in Ext. C6 plan. The plaintiff has referred to their occupation as due to recent trespasses. If first defendant's case with regard to relevancy of the location of Ve-layudhan's plot is to be accepted, then by the same logic it would mean that the owners of the southern 300 acres having executed the documents to Meprath Kunju and Kattekara Joseph, clot ACBD also cannot be part of the property to which first defendant is entitled. That is not the first defendant's case. This is only mentioned to show that nothing turns on possession taken or attempted to be taken by strangers under documents executed by other owners of Puthenpeedikamala so long as it is evident from the circumstances that all concerned were attempting to get at whatever property they could so get at.

38. Though we have referred to the identification of the property covered by Ext. A16 with reference to Ext. C6, we have to notice the fact that the boundaries shown in these two plans are not identical Valivacheerothumkalam mala. Che-mbanchiramala and Vynad Taluk are shown as on the north in Ext. A6 plans whereas Valivacheerothumkalam mala and Chembanchiramala are shown mostly as in the west in Ext. C6. plan. Pannip-padu mala is shown as on the east in Ext A16, and it is on the north-east in Ext. C. 6. Kodappady mala and thodu are shown as in the South in Ext. A16 plan, but as in the east in Ext. C6. plan. We have found that this does not in any way create any difficulties in identifyina the property In preparing Ext. C6 plan the commissioner is said to have taken a mariner's compass and determined the direction quite correctly in accordance with the compass. Ext. A16 would not have been prepared with the assistance of mariner's compass and therefore what he says to be the north may not exactly be the north. If there is a total displacement by a few degrees, there may not be any confusion with regard to the directions. What is significant, however, is the fact that the property identified with reference to the watercourse in Ext. A18 is easily identifiable in Ext. C6. If the boundaries of the properties are so identified nothing turns on the difference in the directions indicated in the two different plans.

39. Before we close, we may also refer to some of the reasons referred to in the iudgment of the court below which has led that court to think that Puthenpeedikamala must have extended far beyond the line BD on the north and that it may take in the entire Plot ACBD. We have already mentioned about the plea of the first defendant that if Velavudhan's plot is in the sourthern half first defen-dant must get 300 acres north of it and so the claim to ACBD will have to be considered. The assumption made by the court below that Velavudhan's plot must necessarily be in the southern half of Puthenpeedikamala is unwarranted. Another reason mentioned by the court below is that 'For Plot ACBD the eastern boundary without any doubt is Kodappadi thodu and Kodappadimala and the Western boundary is Muthalarappan mala. This is consistent with the boundaries given in all the documents of title.' We are unable to accept this reasoning of the learned Judge of the court below in paragraph 25 of his iudgment. Apparently the learned Judge assumes that the western boundary of ACBD is agreed on both sides as Mutha-lamarappanmala. when he says 'without any doubt.' That is the matter in controversy. Muthalamarappanmala has been located by the commissioner not as the western boundary of ACBD. but further south as in the case of plaintiff, while he has also noted where the said mala lies according to the first defendant. We have already held that there is nothing to substantiate the first defendant's case. Hence the assumption 'without any dobut' is unwarranted. Another reason mentioned by the learned Judge to assume that plot ACBD is a part of Puthenpeedikamala is the existence of a long stream runnins east to west at point C in Ext. C6 plan which can, according to the court, form a natural boundary. The commissioner does not report of any such long stream which could have formed a natural boundary. He refers to a small water channel and admit-tedly it does not reach anywhere near the eastern boundary. The mere fact that the first defendant's daughter claimed that it extended further for a considerable extent is not sufficient to accept her contention. None of the documents of the plaintiff refers to any such water channel as the southern boundary nor do the documents of the defendants refer to any such water channel as the northern boundary. The existence of such water channel is not pleaded even by the first defendant in the written statement as a land mark separating the two. If. as a matter of fact, there was such a water channel and that did form the boundary of the properties, in the face of the case that there is no boundary between the properties of the plaintiff and the defendant one would have expected the first defendant to raise such a case much earlier than at the time when he is inspired by the commissioner's report or by the commissioner's visit to the spot. Therefore, apart from the fact that there is no reason to assume that there is a water channel, there is no such case for the parties earlier and the circumstancesdo not indicate that there is any good faith in the plea that there is a water channel from point C which could form the northern boundary. In fact there is no case that the water channel flows from point C to the point on the north-east which is claimed by the first defendant as the north eastern boundary of his property. The mere fact that PW1 denied the existence of a channel at this point may not be very material. The commissioner. as PW2, has confirmed only what he has said in the report and nothing more.

40. There is a reference in the judgment of the court below to Ext. B19 written by one K. P. Damodaran Menan to the first defendant's daughter. DW1'. (It is said that the said Damodaran Menon is the power of attorney holder of the plaintiff and in Ext. B19 he had admitted the tittle of the first defendant to the disputed property. Neither of these appear to be correct. Of course, Damodara Menon was the power of attorney holder of the plaintiff, but he became one only later, when he wrote he did not hold that power. There is nothing in Ext. B19 which is of assistance to the first defendant. Damodara Menon only offered to purchase the 300 acres of Puthenpeedikamala belonging to the first defendant at the rate of Rs. 100/-per acre. This is not an admission of the right of the first defendant to the property lying north of the line BD. It may also be possible that this was written to the first defendant to avoid any disputes with him.

41. There was a suit for partition filed by one Devaki Amma as plaintiff against the first defendant and others for partition and recovery of possession of their share in Puthenpeedikamala shown as having 600 acres. The first defendant in this suit was the first defendant in that suit also. It was found by the court below that the said decision was not res iudicata against the plaintiff here who was the 57th defendant therein. There Was no claim to the plaintiff's property in that case and if that be the case, nothing turned on the judgment in that case. Nevertheless the court below seems to think that the iudgment is relevant.

42. We find that on the materials available the best has been done to locate the south-east and south-west points of the plaintiff's property which are the ones in dispute. In the absence of any evidence on the side of the first defendant to show that this location of points D and B based as it is on the materials already adverted to is wrong, we do not think that the court below was right in finding that plaintiff had no title to ACBD.

43. Now we come to possession, possession is considered, independent oftitle as the court below has taken the view that title has not been proved. This approach may not be correct in view of our finding that title to the property up to the line BD has been proved. The property is private forest land. At all material times it was so. Such land cannot be alienated without the permission from the District Collector, Trees cannot be felled without obtaining permit from the Collector, Plaintiff did move and obtain the permit prior to the suit. But, of course, that by itself will not establish plaintiff's possession. But the nature of the land is such that plaintiff cannot be expected to prove exercise of acts of possession. In regard to such land the normal presumption that possession follows title may be available and therefore though the plaintiff has got a duty to prove possession to justify the injunction that duty is discharged when once title is shown and the circumstances also show that the property is one in regard to which it is not possible to expect either party to adduce evidence of acts of possession. In these circumstances the oral evidence of PW1 or that of DW1 as to possession may not be material. In fact the evidence is not of much assistance.

We therefore hold that the plaintiff is entitled to a decree as prayed for by him. The boundary between the property of the plaintiff and that of the defendants would be demarcated as the line BD in Ext. C-6 plan. The defendants will be restrained from trespassing upon the plot ACBD by an order of perpetual injunction. Since there is no evidence on the auestion of damages, as found by the court below, the plaintiff is not entitled to a decree in regard to this and hence the suit should fail to that extent. No relief is awarded against the second defendant. The appeal is allowed to the extent indicated above. In the circumstance of the case, plaintiff will get 3/4th of his costs from the first defendants in both the courts and the defendants will suffer their costs.

Viswanatha Iyer J.

44. Iagree with the reasonings and the conclusions of my learned brother, Since we are overruling the decision of a learned Single Judge of this Court in (1958 Ker LJ 1177) I wish to add a few lines of my own regarding the maintainability of a suit for fixation of a boundary separating two adioining properties belonging to different owners. The learned Single Judge, relying on a Bombay decision and an English case, has taken the view that to maintain such a suit there must be some confusion of boundaries and that confusion must have been caused by the misconduct of theopposite party or anybody claiming under him. On that ground certainly a suit will lie as there is a cause of action. But that does not exhaust the grounds on which a suit of that nature will lie. The rights of an owner of lands are largely negative that other people shall do nothing to interfere with his enioyment. As the owner of one piece of land is under a legal duty not to interfere with the possession and enjoyment of the owner of a neighbouring land as part of that duty or for its performance rather, he must know the limits of the neighbour's land. When the latter seeks his co-operation to fix the dividing line separating his property he must respond to it. If he refuses to co-operate or claims to have the dividing line drawn in a different way than that put forward by the neighbour there is an uncertainty or a threat to or a cloud cast to the right of the Possession of the land of the neighbour and the latter can approach the court seeking redress. It may not be possible for him to seek recovery or seek injunction as a main relief in that that relief will depend on the fixation of the dividing line. The main relief can be one for fixation of boundary and the other reliefs, if necessary, will be conseauential or identical.

45. Disputes as regards the location of boundary separating adjacent lands of different owners may arise under ever so many circumstances. One common instance is where portions of a survey field are transferred or allotted to different persons without mentioning either the side measurements or other necessary measurements to fix the geometrical shape of the plot at the spot. The area and location alone may have been shown in the transfer deed or the partition deed. Without changing the location, the area conveyed or allotted may be sought to be located in one or more alternative geometrical shape by one owner. This may clash with the claim of the other person to have his area located in a particular geometrical shape. Again, any one party may wish to have the limits of the area belonging to him demarcated so that he may either enclose the area to prevent trespass or to exercise acts of possession without encroaching into the neighbouring plot. If the other party on demand does not co-operate, a cause of action arises to have the limits of his property determined through court. Again the property conveyed or allotted may have been described only with reference to neighbouring properties. Those properties may or may not have been limited in extent and shape to a survey field. In that case, a fixation of the boundary of those properties may be necessary to fix theboundaries of the properties conveyed or allotted. If there is no co-operation in doing that, that may result in a dispute. These instances are only illustrative and not exhaustive. All these disputes are disputes of a civil nature and they can form the subject matter of a suit under Section 9 C. P. C. There is no express or implied bar under any other law. The provisions of the Survey and Boundaries Act do not bar such a suit. It only provides one remedy. If the provisions of the Survey and Boundaries Act are resorted to by any party, the authorities under that Act may investigate and arrive at a decision regarding the demarcation. That decision is subject to a result of a suit. The dissatisfied party may go to a court and claim the fixation of the boundary by the court. That confirms the view that a suit to fix the boundary separating two neighbouring properties will lie. According to me. whenever there is a dispute between two parties as regards the location of a boundary separating their neighbouring properties and if on a demand to co-operate in fixing that boundary it is not given, a suit will lie at the instance of the demanding party. So I agree with my learned brother that the decision in (1958 Ker LJ 1177) is not correct and has to be overruled.


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