V. Khalid, J. - (1.)Plaintiffs l to 3 are the appellants. The suit was for a declaration of title and possession and also for an injunction to restrain the defendants from interfering with the plaint property and destroying a boundary (Wada). The trial Court decreed the suit declaring that the plaintiffs had title and possession over 67 cents of plaint schedule property and that the plaintiffs were entitled to get the wada, which existed on the western boundary of the plaint schedule property, restored. In appeal, the Appellate Court set aside the decree and judgment of the trial Court. Hence this Second Appeal.
(2.)The dispute in this case relates to 17 cents of land which, as per the documents of title, forms part of the 1st defendant's property which is 1-17 acres in extent. The plaintiffs have as per their documents of title property only of 50 cents in extent. The plaintiffs did not have a consistent case regarding the extent of the property. In the original plaint, the extent of the property was shown as 7 cents. Later it became 17 cents by two amendments in the plaint. The entire property originally belonged to one tarwad. By various assignments the plaintiffs became entitled to the 50 cents of land called "..(Text in Malayalam not Printed).." and the defendant to a property with an extent of 1.17 acres. For the purpose of this second appeal, I held that the property to which the plaintiffs are entitled as per their documents of title to be 50 cents in extent and that to which the 1st defendant is entitled to be 1 acre 17 cents in extent. In doing so, I confirm, the decree of the Appellate Court declining the plea of declarations of title claimed by the plaintiffs.
(3.)The bone of contention in this second appeal relates to the existence of a wada at the eastern extremity of the property belonging to the 1st defendant and the western extremity of the property which the plaintiffs claimed to be in possession. I say so advisedly because the claim now put forward, as seen in the amended plaint, is a claim to 67 cents of property that is 17 cents in excess of what is seen in the documents of title of the plaintiffs. The learned counsel for the respondents strenuously contended that the wada was an imaginary boundary because there was no mention of 6 wada in any document of title. This is so, but, from the evidence in this case and the findings entered by the Courts below, it is possible to infer that something like a wada existed on the ground at the time the suit was filed. There is no evidence in this case as to when the wada came into existence. Suffice it to say for the purpose of this second appeal that a wada existed at the time the suit was filed. It was contended by the respondents' counsel that the amended plaint had given a goby to the rase that the wada existed in between the plaintiffs and defendants' property. This may not be strictly correct because there is mention of the existence of the wada in the body of the plaint and is the 1st schedule attached to the plaint Be that as it may, it is evident from the 1st Commissioner's report, which has been referred to by the Courts below, that the wada existed on the property. According to the appellants the cause of action for the suit itself was the attempt of the defendants to demolish this wada. The trial Court has found in para 10, last sentence, as follows:
"The mahazar prepared by the urgent Commissioner is conclusive to show that there was a wada on the western side of paradaivaparambu." The Appellate Court has observed as follows in para 6 of the judgment: "These circumstances establish that the wada noted in Exts. C-5 and C-6 was in existence of the disputed boundary line viz., the western boundary of the disputed 17 cents." The second appeal has to be decided with these findings entered by the Courts below of the existence of a wada between the properties of the plaintiffs and the defendants. The trial Court found possession with the plaintiffs. The Appellate Court after considering the Commissioner's report held as follows:-- "The existence of wada, stated above, and the similarity of the nature of both the disputed 17 cents and the eastern 50 cents are the only two circumstances, to support plaintiffs' claim of possession of the disputed 17 cents."
The learned Judge proceeded to consider other circumstances which, according to him, would take away the effect of the two circumstances mentioned above. I have considered that part of the judgment in the context of the evidence in the case and the Commissioner's report. I find that the evidence is in favour of the plaintiffs' case that they have been in possession of the property some time prior to the suit. Though the Appellate Judge found that the 50 cents and the disputed 17 cents were similar in nature, concluded by saying that the disputed 17 cents of land did not form part of paradaivaoarambu and was not in the possession of the plaintiffs on the date of suit. This finding was entered without any evidence. I find from the 1st Commissioner's report that he had noted the existence of the wada and marks of destruction of certain portions. The 3rd Commis-sioner (second Commissioner's report was set aside as per agreement between the parties) has not observed the existence of the wada but has observed heaps of sand at the place where the plaintiffs asserted that the wada existed. The Commissioner's reports indicate that the 17 cents were treated as part of the 50 cents. From these materials, I hold that the Appellate Court erred in holding that the plaintiffs had no possession over the property in dispute.