Aseervatham Nadar and Others vs Sathiadas and Others

S.M. Abdul Wahab, J.—The second appeal has been preferred by the plaintiff.

The plaintiff filed a suit for partition of 1/3rd share in both A and B schedule properties. The defence was that he is entitled to a share in the B

Schedule property and the said share is i.e., 72 cents south of C.F. line marked in Ex. B-6 plan.

The main question that was considered by the trial court is whether the decision in a demarcation suit i.e., O:S. 175 of 1966 (O.S. No. 1263 of

1108 M.E.) wherein it was held that the plaintiff and his family were entitled to only the shares south of C.F. line in Ex. B-6 plan is binding on the

parties. But as per the trial-court, the decision in the demarcation suit is not binding because they are not suit for partition and further the plaintiff

did not figure as a party in the above suit. Therefore, according to the trial court, the decision in O.S. No. 175 of 1966 was not binding on the

plaintiff. Hence he gave a decree for 1/3rd share in the entire B schedule property. On appeal the lower appellate court has found that the plaintiff

was a party to the suit O.S. No. 175 of 11986 and that therefore, the plaintiff was found by the said decision. In that view the lower appellate

court reversed the judgment and decree of the trial court and modified the decree that the plaintiff will be entitled to 1/3rd share in the southern

portion of the B schedule property only and in respect of the northern half measuring 72 cents, he is not entitled to any share. Being aggrieved by

the judgment and decree of the lower court, the plaintiff has filed the second appeal.

The only contention raised by the counsel for the appellant is that the decision in a demarcation suit has no binding for and the principle of

resjudicata is not applicable to the said decision. But the learned Counsel for the respondent cited a decision reported in E. Achuthan Nair Vs. P.

Narayanan Nair and Another, and contended that the decision in a demarcation suit is binding on the parties and it will also operate as a res

judicata between the parties.

In P. Narayanan Nair Vs. E. Achuthan Nair and Another, a Division Bench of the Kerala High Court has taken a view that the suit for

demarcation of boundary separating adjacent lands of different owners being one of a civil nature is maintainable. In the said decision, the learned

judges have overruled the decision of learned single judge, who took a contrary view. The said decision in P. Narayanan Nair Vs. E. Achuthan

Nair and Another, has been upheld by the Apex Court in Achuthan Nair v. Narayanan Nair (1987) 4 S.C.C.

In view of the decision of the Apex Court, the contention of the counsel for the appellant is not acceptable. Hence, the second appeal is

dismissed. How-ever, there will be no orders as to costs.