1. Defendants in a suit for fixation of boundary and for prohibitory injunction are the appellants. The suit was originally filed against the 1st defendant alone. Subsequently, additional defendants 2 and 3 were impleaded. The trial court held that plot no.1 in Ext.C1(b) plan is the plaintiffs property and thus fixed the northern and western boundary of the said plot. Prohibitory injunction was granted restraining the defendants from trespassing into plot no.1, shown in Ext. C1(b) plan, and from committing any acts of waste. The appeal filed by the defendants was dismissed, confirming the decree and judgment passed by the trial court.

2. The learned counsel for the appellants vehemently argued that the observations made by the Advocate Commissioner in Ext C1 report will make it undoubtedly clear that plot no.2, shown in Ext.C1(a) plan, is in the possession of the defendants and it was based on that report filed by the Commissioner additional defendants 2 and 3 were impleaded. It is also submitted by the learned counsel that the application I.A. No.3225/2008 was filed by the plaintiffs to implead additional defendants 2 and 3 on the ground that a portion of the property was found to be in the possession of the defendants and so the plaintiffs cannot contend that the disputed plot - plot no.2, shown in Ext.C1 (a) plan was also in the possession of the plaintiffs as on the date of the suit. Therefore, it is argued by the learned counsel that without a prayer for recovery of possession, the plaintiffs cannot get the boundary of the property fixed, as if plot no.2 is in the possession of the plaintiffs. Without seeking recovery of possession of plot no.2, the plaintiffs cannot have a short cut by seeking a prayer for fixation of the boundary, it is further argued.

3. The following substantial question of law was framed by this court:

i. In the light of the reports submitted by the Commissioner, showing that the disputed portion is in the possession of the appellant and the admission of the respondent in I.A. No.3225/2008 that the disputed portion is reported to be in the possession of the appellant by the Commissioner, whether courts below were justified in fixing the boundary so as to include the disputed portion, when no decree for recovery of possession was sought for

4. The learned counsel for the respondents would submit that the trial court and the appellate court have considered the entire pleadings and evidence and found that plot no.2, shown in Ext.C1(a) plan, is part of 8 cents of land covered by Ext.A1 title deed of 1965. Apart from the oral vibration of the defendants that they were in possession of this disputed plot for about 40 years, no documentary or oral evidence could be produced by the defendants to show that they have got any right over plot no.2 shown in Ext.C1 (a) plan. It is submitted by the learned counsel for the respondents that what was reported by the Commissioner and what was stated by the plaintiffs in evidence is only to the effect that as per the survey commission plot no.2 falls outside the property of the plaintiffs and has been shown as the property forming part of the property claimed by the defendants. There is no admission that plot no.2 in Ext.C1 (a) plan was in the possession of the defendants. In other words, according to the learned counsel, simply because, as per the survey demarcation, this small bit of land happened to be shown as part of the property of the defendants, it cannot be said that the defendants were in settled possession of the property. Stray or intermittent act of possession cannot be taken up as a ground to hold that the plaintiffs were out of possession so as to deny a decree for injunction.

5. As per Ext.B3, an extent of 16.70 Ares of land, described as purayidam, is in the name of the 1st defendants mother - Thachikochumanu. That property is comprised in Resurvey no.15/2 (old survey number of which is 7/7A). 02.25 Ares in Resurvey no. 15/3 (old survey number of which is 7/7B) is shown to be in the possession of the 1st respondent - Sethu Mohammed. Based on the entry that 16.70 Ares in resurvey no. 15/2 stood in the name of Thachikochummani, the learned counsel submits that the disputed portion (plot no.2) of Ext.C1(a) plan cannot be the property of the plaintiffs. But this submission is resisted by the learned counsel for the plaintiffs pointing out that as per Ext.A1 - title deed, where the old survey number is shown as 7/7B, the total extent is 8 cents. But Ext.B3 - the extract does not show the old survey no.7/7B at all. As such, based on Ext.B3 alone the title of the property cannot be determined.

6. Ext.B4 is the certificate issued by Kuthiraparambu Mahal Muslim Jama-Ath Nurul Islam Samajam dated 20.1.2009 which is to the effect that one coconut tree was dedicated by Kochu Ummani. This certificate was not proved by the person who issued it. Not only that, it cannot be said that the so called dedication was in respect of the tree situated in the disputed property. Therefore, Ext.B4 also does not come to the rescue of the appellants.

7. The suit property measures 8 cents, comprised in old survey no.7/7B of Vazhakullam Village. This 8 cents of land is part of a property measuring 42 cents. The Commissioner has measured and identified the property and filed Ext.C1 report and Exts.C1(a) and C1(b) plans.

8. The defendants disputed the northern and western boundary of the plaint schedule property and so the plaintiffs sought for fixation of boundary. The suit is mainly resisted by the defendants contending that under the pretext of causing fixation of boundary the plaintiffs wanted to get possession of plot no.2 shown in Ext.C1(a) plan which was not in the possession of the deceased 1st plaintiff. (since the plaintiff died pending suit, his legal representatives were impleaded as supplemental plaintiffs 2 to 8). It is not disputed that as per Ext.A1 of 1965, the 1st plaintiff obtained 8 cents of property. The plot demarcated by the Advocate Commissioner as plot no.1 in Ext.C1(b) plan is 8 cents. In Ext.C1(a) plan the disputed portion was separately marked as plot no.2. The property covered by Ext.A1 takes in plots 1 and 2 in Ext.C1(a) plan. Since the identification has been properly done by the Advocate Commissioner and since it was accepted by the courts below, I have no hesitation to hold that plots no.1 and 2 shown in Ext.C1(b) are the plots over which the plaintiffs have title by virtue of Ext.A1.

9. Much was argued by the learned counsel for the defendants, relying upon the evidence given by the Advocate Commissioner, who was examined as PW2, to contend that plot no.2 in Ext.C1(a) plan is in the possession of the defendants. But it can be discerned from the evidence given by PW2 that what was stated by PW2 – the Commissioner is that plot no.2, which is part of Ext.A1 property, is shown as per the resurvey, as the plot in the possession of the defendants.

10. While discussing the acceptability of Ext.B3, it was found that the entries relating to the resurvey number and the extent of land were not correctly shown in Ext.B3. Not only that, simply because it was wrongly shown in the survey plan or the basic tax register that a portion of the property covered by Ext.A1 stood in the name of another person, that does not mean that the plaintiff has lost his title to the property nor can it be presumed, based on such a wrong entry in the revenue records or plan, that the plaintiff was out of possession of the property or that the other person in whose name it is registered could obtain title to the property.

11. When a party approaches the Civil Court for deciding his title and for possession based on title, it cannot be allowed to be scuttled by the handiwork of the Surveyor, especially when there is nothing on record to show that the survey was done in the presence of the plaintiffs or their predecessor-in-interest. It is not for the survey authorities to decide the question of title nor can the parties be left at the mercy of the survey authorities. What was stated by PW2 -the Advocate Commissioner is that as per the survey plan, plot 2 in Ext.C1(a) is in the possession of the defendants. The statement was not to the effect that the defendants were in possession of plot no.2, mentioned above. Not only that, the Advocate Commissioner who inspects and measures the property with the Surveyor, is not expected to state who is in possession of the disputed plot. Therefore, the argument vehemently advanced by the learned counsel for the defendants/appellants that the deceased 1st plaintiff was out of possession, is devoid of any merit.

12. PW1 the plaintiff has asserted that plot no.2 is in his possession. It was further stated that there was a mud wall/mud ridge on the northern boundary of his property. On the western portion there was no specific boundary. It was further stated that the deceased 1st defendant attempted to construct a compound wall trespassing into the plaint schedule property. Therefore, there is absolutely no merit in the contention that the defendants are in possession of the property. On the other hand, the admission made by DW1 is that he does not want the property, which as per the document, the deceased 1st plaintiff has.

13. The admission made by DW1 would show that he admitted the plaintiffs title to the property covered by Ext.A1 title deed, relied upon by the plaintiff and there is no case for the defendant (DW1) that he was in possession of any extent of land which is covered by the title deed of the plaintiff. Therefore, the contention that the plaintiff should have sought recovery of possession of plot no.2, marked in Ext.C1(a) plan, is found to be bereft of any merit.

14. It was held by the Honble Supreme Court in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria (Dead) Thr.L. - AIR 2012 SC 1727 [LQ/SC/2012/301] thus:

"Possession is important when there are no title documents and other relevant records before the Court, but, once the documents and records of title come before the Court, it is the title which has to be looked at first and due weightage be given to it. Possession cannot be considered in vacuum."

15. On going through the judgments rendered by the courts below, it is clear that except the fact that the survey authorities had shown a portion of the property covered by the plaintiffs title deed in another survey number and that it belongs to another person, there is no iota of evidence to show that the plaintiffs were out of possession of the suit property. The courts below have correctly analysed the pleadings and evidence and have come to a right conclusion that the deceased plaintiff was in possession of the plaint schedule property which takes in plot no.2, marked in Ext.C1(a) plan. The cause of action alleged by the plaintiffs was also found to be true. The decree granted by the courts below is only to be confirmed.

In the result this Regular Second Appeal is dismissed.