Suit – Suit filed for putting up a boundary wall/fence on land – Trial Court dismissed the suit, which was confirmed by the First Appellate Court – High Court, however, allowed second appeal and decreed the suit by upsetting concurrent findings recorded by both the Courts below and holding that defendant Nos. 1 to 3 could not have more than 10 cents of land as kudikidappukars and therefore, the plaintiffs were entitled to put up the boundary as per the Commissioner’s Plan and Report beyond the excess of 10 cents land – Held: In an earlier round of litigation instituted by the original landowner-predecessor-in-title of the plaintiffs, he was held to be entitled to land to the extent of 2 acres and 35 cents – Therefore, to that extent only the plaintiffs can protect their possession by putting up the boundary wall/fence and not beyond 2 acres and 35 cents – What apparently weighed with the High Court was that defendant Nos. 1 to 3 were entitled to only 10 cents as kudikidappukars – However, in a suit praying for putting up a boundary wall/fence filed by the plaintiffs, the High Court in a second appeal could not have given the findings that the defendants were entitled to only 10 cents as kudikidappukars – Judgment and decree passed by Trial Court confirmed by the First Appellate Court, accordingly, restored. Allowing the appeal, the Court
HELD:1. In an earlier round of litigation instituted by the original landowner - predecessor-in-title of the plaintiffs, being O.S. No. 833 of 1961, he was held to be entitled to plaint A schedule land to the extent of 2 acres and 35 cents. Therefore, to that extent only the plaintiffs can protect their possession by putting up the boundary wall/fence and not beyond 2 acres and 35 cents. [Para 4][834-D]
2. So far as the reliance placed upon the Commissioner’s Report, which suggests that the plaintiffs were in possession of 2 acres and 77 cents is concerned, it is to be noted that plaintiffs may be found to be in possession of 2 acres and 77 cents. However, any possession beyond 2 acres and 35 cents can be said to be unauthorized possession. [Para 5][834-H; 835-A]
3. The plaintiffs can protect their possession by putting up the boundary wall/fence to the extent of 2 acres and 35 cents only. By praying to permit the plaintiffs to put up the boundary wall/fence beyond 2 acres and 35 cents, the plaintiffs are asking for the reliefs permitting them to retain the possession of land beyond 2 acres and 35 cents, which otherwise they are not entitled to in view of the specific findings recorded by the Civil Court in the earlier round of litigation namely O.S. No. 833 of 1961. [Para 6][835-B]
4. From the impugned judgment and order passed by the High Court, it appears that what weighed with the High Court is that the defendant Nos. 1 to 3 are entitled to only 10 cents as kudikidappukars. However, in a suit praying for putting up a boundary wall/fence filed by the plaintiffs, the High Court in a second appeal could not have given the findings that the defendants were entitled to only 10 cents as kudikidappukars. The judgment and decree passed by the Trial Court confirmed by the First Appellate Court is ordered to be restored. [Paras 7, 8][835-C-E]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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