A. Varadarajan, J.
1. The first defendant who failed in both the Courts below is the appellant. The respondents filed the suit for demarcation of the boundaries between S. Nos. 4312 and 4211 of Valvachagoshtam Village, Kalkulam Taluk, and for putting up the northern boundary wall of S. No. 4315? at the cost of the appellant and the second defendant and for recovery of Rs. 10 as damages in respect of the cocoa, nuts taken away from the tree standing on S. No. 4212. S. No. 4312 belonging to the respondents lies south of S. No. 4311 belonging to the appellant. The case of the respondents was that there was a bund separating the two fields and that it was removed by the appellant and the second defendant on 32nd,May, 1967 and that the appellant too)s. away cocoa-nuts valued at Rs. 10 from the aforesaid cocoanut tree.
2. The defence was that on the southern boundary of the appellant's property bearing S. No. 4211, there is small bund, now in ruins, and that it is used as a footpath and that the appellant did not remove any bund and there is no necessity to restore any bund or wall. The appellant claimed the cocoanut tree as her own and contended that the respondents are not in possession of any cocoanut tree. She further contended that the land in her possession is higher in level than the respondents' land and that even if any portion of S. No. 4212 is included in that higher level land the respondents have lost their title to that property by her adverse possession.
3. The trial Court appointed a Commissioner for making local inspection and filing a report. The learned Commissioner filed his report (Exhibit A-3) arid plan (Exhibit A-4). He has filed a second report (Exhibit B-2) and plan (Exhibit B-3). According to his first report the cocoanut tree from which the appellant is stated to have removed some cocoanuts stands on S. No. 4213. But according to the subsequent report (Exhibit B-3) that cocoanut tree stands on S. No. 4211. The trial Court accepted the first report of the Commissioner (Exhibit A-3) and did not place any reliance on the second report (Exhibit B-2) and found incidentally that the appellant has not acquired title to the cocoanut tree or any portion of S. No. 4313 By adverse possession that as the appellant was claiming the disputed cocoanut tree, she would have removed the fence 'as alleged' and that the northern boundary wall should be put in accordance with the first report of the Commissioner (Exhibit A-3) at the cost of both the parties. The learned District Munsif further found that the appellant had removed 30 cocoanuts from the cocoanut tree and that the respondents are entitled to damages of Rs. 10. On these findings he decreed the suit as prayed for with costs.
4. The appellant took the matter in appeal. The lower appellate Court found that no mud kasala separated the two fields and no bund had been removed by the appellant and the second defendant and that the respondents should put up the boundary line at their cost on their property bearing S. No. 4212. The learned Judge agreed with the learned District Munsif that the cocoanut tree stood on the respondents' land bearing S. No. 4313 but differed from the learned District Munsif and held that there was no proof that the appellant and the second defendant plucked any cocoanut therefrom. However, the learned Judge has granted a decree declaring that the respondents are entitled to put up a boundary in their extent at their own cost demarcating their survey number 4312 from the northern survey number 4311 as per the Commissioner's plan Exhibit A-4 and thus modified the trial Court's decree and dismissed the appeal.
5. The respondents have alleged in paragraph 3 of the plaint that S. Nos. 4211 and 4213 were separated by a bund and that the appellant and the second defendant removed it on 23nd May, 1967. On this allegation what the respondents should have prayed for was a mandatory injunction directing the restoration of the alleged bund. But in prayer 'A' there is no reference to any bund, and what has been asked for is a decree for putting up the northern boundary wall for S. No. 421? through Court at the common expense, of both the parties along the line marked F-E-D in the plaint sketch. There is no reference in any other part of the plaint to any boundary wall and as already stated reference has been made in paragraph 3 of the plaint only to both the survey numbers. As a matter of fact the existence of a bund between the two fields has been admitted in the written statement of the first defendant. The particulars of the wall claimed in prayer 'A' to be put up, namely, whether it is a granite wall or a brick wall or a mud wall, whether it is a granite and cement mortar wall or granite and lime mortar wall or granite in mud. wall or whether it is a brick in cement or brick in lime mortar or brick in mud wall or the dimensions of the wall, viz., its height and thickness have not been mentioned. The plaint prayer 'A' is therefore very vague.
6. Now the learned Counsel for the appellant invites my attention to a Bench decision of the Bombay High Court in Kavasji Jamsetji v. Hormasji Nassarvanjisket I.L.R.(1905) 29 Bom. 73 and of Madhavan Nair, J., in Appayya Banga v. Karaga : (1931)60MLJ85 and submits that a suit for demarcation of the boundaries of the properties is not maintainable. The prayer in the plaint in the Bombay case was to recover from the defendants possession by severance arid demarcation of 2 acres and 37 gunthas of land out of the area described in the plaint allowing the defendants to retain possession of as much land thereout as they could possibly retain consistently with it. The learned Judges have extracted the following observations of Lord Eldon in Miller v. Warmington (1820) 1 Jac. & W. 484 in their decision:
But if the difficulty of finding the boundaries were established, it is clear the plaintiff does not stand in a predicament that gives him a right to apply for a commission. This is the case of persons claiming by an adverse title; there is no connection between them to serve as a foundation for the Court to proceed on in ordering a commission. The subject was very luminously considered by the late Master of the Rolls in Speer v. Crawter (1817) 2 Marivale 410 and that case has settled that you must lay a foundation for 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 renders it incumbent on him to cooperate in re-establishing them. But the Court will not interfere between independent proprietors, arid confusion of boundaries per se is no ground to support such a bill.
After extracting this observation the learned Judges have observed that in that case the litigants were independent proprietors and it was impossible to regard them as individuals having such relations the one to the other as would entitle them to treat the whole of the land in their possession as a common fund capable of adjustment in such a way as to enable them to give 4/22 of the whole to one and the remaining 18/22 to the other, and that in their opinion the plaintiff in that case had not shown a sufficient equity in himself as against the defendants in the suit, more especially when regard is to be had to the findings of fact by the lower appellate Court.
7. This decision has been referred to in the aforesaid decision of Madhavan Nair, J. and the principle laid down in that decision has been accepted by the learned Judge who ha s observed that in his opinion the principle in a case of confusion of boundaries the Courts will not interfere unless some equity is super-induced by the act of the parties has to be applied with reference to the special features of each case. The learned Judge has, no doubt, added that he does not think that the principles enunciated in that case preclude the Courts from interfering in cases where obviously refusal to interfere will cause injustice to the plaintiff on account of misconduct on the part of the defendant with respect to property.
8. The learned Counsel for the respondents relies upon the decision of Varadaraja Iyengar, J., in Rayappan v. Yagappan Nadar 1985 K.L.J. 1177 : 1985 K.L.T. 955 That was a case where the suit was for putting up a boundary wall between the plaintiff's northern plot and the defendant's southern plot and to remove portion of item 3 building belonging to the defendant to the extent it abuts into the plaintiff's plot. The plaint averred that there existed no common boundary arid that the parties were not aware that item a had made at the time of its construction an incursion into the plaintiff's plot. The plaintiff had got the property measured by the Taluk Office and the defendant's refusal to abide by it had rendered the suit necessary. The question as to how far Courts will entertain a suit for resolving a confusion of boundaries when the plaintiff is unable to say what exactly was his property was canvassed before the learned Judge, who has observed:
The rule in these cases is well settle by a long line of English authorities that as between the independent proprietors, confusion of boundaries per se does not furnish a ground for Court's interposition unless some equity is superinduced by the act of parties as some particular circumstances of fraud or confusion where one party has ploughed too near the other or the like.
The learned Judge further observed that the mere fact that the boundary in between is not fixed does not mean that there is a confusion within the meaning of the rule.
9 This decision far from helping the respondents would support the contention raised by the learned Counsel for the appellant on the basis of the aforesaid two decisions.
10. The respondents should have asked' for declaration of their title and for possession if the appellant and the second defendant had trespassed into any portion of Section To. 4213 and they should have asked for a mandatory injunction as already stated, for the restoration of the bund if the bund had in fact been removed by the appellant and the second defendant, as alleged in the plaint. They should have asked for a permanent injunction restraining the appellant and the second defendant from interfering with their right to put up a bund on their property if they had interfered with the respondent's right to put up the bund. The respondents have not done any of these things and have merely asked for demarcation of the boundaries and construction of a boundary wall between the two properties and have sought to recover damages of Rs. 1 o on the assumption that the cocoanut tree from which cocoanuts are alleged to have been plucked by the appellant stands in S. No. 4212 and is in their possession. Under the circumstances, I agree with the learned Counsel for the appellant and find that the suit for demarcation of the boundaries is not maintainable and Section 9 of the Code of Civil Procedure, relied upon by the learned Counsel for the respondents will riot help them.
11. The learned Counsel for the appellant rightly submits that the lower Court having found that the appellant and the second defendant had not removed any bund and that the appellant has not plucked any cocoanuts from the cocoanut tree, the appeal should have been allowed and the suit should have been dismissed the very cause of action for the suit having been found against by the lower appellate Court. This submission is well-founded. The lower Court having found the very cause of action alleged by the respondents to have riot been established by the evidence, he should have straightaway dismissed the suit and not granted a decree allowing the respondents to raise a boundary wall on their own property bearing S. No. 4219 at their own cost in accordance with the Commissioner's plan Exhibit A-4.
12. The second appeal is therefore allowed with costs throughout arid the suit is dismissed. No leave.