JUDGMENT : RSA 935/2018 & CROSS OBJECTION NO.100/2019 1. The defendants 1 and 2 in the suit are the appellants. They are husband and wife. The plaintiff filed the suit seeking a declaration of his rights over Plaint B schedule property, mandatory injunction to the defendants 3 and 4, who are the State and Superintendent of Survey, to correct the mistake in resurvey by including Plaint A Schedule property as part of Plaint B schedule property in resurvey records, and permanent prohibitory injunction restraining the defendants 1 and 2 from trespassing into plaint A schedule property and committing waste therein. 2. Plaint A schedule property was originally shown as 9.7 cents of land in Sy No.496/1A in Resurvey No.114/3 in Resurvey Block No.82, and after the Commission Report it was amended as8.94 cents incorporating Resurvey No.114/2 also. Likewise, Plaint B schedule property was originally shown as 7 acres 12 cents of land in Sy No.496/1A in Resurvey Nos.99 &114/3 in Resurvey Block No.82, and after Commission Report it was amended as 7 acres 24.94 cents incorporating Resurvey No.114/2 also. 3. The case of the Plaintiff is that A schedule property is a part of plaint B schedule property lying on the northern extremity of plaint B schedule property. The plaintiff derived a larger extent, including plaint B schedule property as per Exts.A1 and A2 documents of the year 1973. Plaint B schedule property is the property remaining with the plaintiff after alienations and relinquishment for road. Plaint B schedule property is having well defined boundaries on all sides. The property of the defendants 1 and 2 is situated on the northern side of Plaint B schedule property. Teak trees standing in a row separates the plaint B schedule property from the property of defendants 1 and 2. The plaint B schedule property and the property of defendants 1 and 2 are easily distinguishable. The property of one Achukutty Thomas is also situated on the northern side of Plaint B schedule property, which is situated on the eastern side of the property of defendants 1 and 2. There is barbed wire fencing to separate plaint B schedule property with the property of Achukutty Thomas. Kayyalas, constructed for the protection of the property of the defendants 1 and 2 is lying north-south and its southern end touches the northern boundary of Plaint B schedule property. There is barbed wire fencing to separate plaint B schedule property with the property of Achukutty Thomas. Kayyalas, constructed for the protection of the property of the defendants 1 and 2 is lying north-south and its southern end touches the northern boundary of Plaint B schedule property. In resurvey, Plaint A schedule property is included in RS No.114/3 in Block No.82, which is the resurvey number of the property of the defendants 1 and 2 and taking advantage of the same defendants 1 and 2 are attempting to trespass into plaint A schedule property. The Plaint B schedule property excluding A schedule property is included in RS.No.99/1. 4. The defendants 1 and 2 opposed the suit prayers contending, inter alia, that the Plaint A schedule property is not part of plaint B schedule property. The identity of the plaint schedule properties is not clear. The plaintiff has property in RS No.99, and on the northern side of the plaintiff’s property, defendants 1 and 2 have 6.04 acres in RS.No.114/3 as per Exts.B1 to B5 of the year 1988. The plaintiff is claiming right over a portion of the said property. There is no boundary separating the properties of both parties. The allegation that there are teak trees in a row to separate the property is incorrect. Trees are not boundary. There are other trees in their property. There is no Kayyala as boundary in their property. They believe that the claim of the plaintiff is with respect to the trees belonging to them. The property in the possession of the plaintiff is replanted in the year 1987. The property belonged to the plaintiff is replanted in the year 1993. The Resurvey was conducted in the year 1975 and hence the suit is barred by limitation. 5. The defendants 3 and 4 filed Written Statement contending that the resurvey records came into force with effect from 01.04.1994. The Resurvey was done on 31.07.1975 in accordance with law. Though the plaintiff had filed petitions before the Superintendent of Survey, the same were dismissed since there was boundary dispute. 6. The Trial Court decreed the suit in part, declaring that the plaintiff is the absolute owner of Plaint B schedule property, including Plaint A schedule property, and granting an injunction against defendants 1 and 2 from trespassing and committing waste in Plaint A schedule property. 6. The Trial Court decreed the suit in part, declaring that the plaintiff is the absolute owner of Plaint B schedule property, including Plaint A schedule property, and granting an injunction against defendants 1 and 2 from trespassing and committing waste in Plaint A schedule property. The relief of mandatory injunction was denied, finding that the same is barred under Section 14 of the Kerala Surveys and Boundaries Act. 7. The defendants 1 and 2 filed the Appeal, and the plaintiff filed Cross Objection before the First Appellate Court. The First Appellate Court dismissed the Appeal as well as the Cross objection. 8. The defendants 1 and 2 alone filed the Regular Second Appeal.This Court admitted the Regular Second Appeal on the following substantial question of law. Has not the appellate court erred in confirming the judgment and decree of the Trial Court when the plaint schedule properties were not measured and identified with reference to the title deeds of the parties? 9. The plaintiff filed Cross Objection No.100/2019 challenging the Decree of the First Appellate Court, confirming the decree denying the mandatory injunction. The Cross Objection was admitted without formulating substantial questions of law. 10. I heard the learned Counsel for the appellants, Sri.Rajesh.R.Kormath, learned counsel for the respondents 1,2 and 5 Sri.M.A.Zohra and the learned Government pleader Sri.Denny Devassy. 11. The learned counsel for the appellant contended that the suit, as framed, is not maintainable. The suit should have been one for the fixation of boundaries. No attempt was made to identify the plaint schedule properties with reference to the title deeds of the parties. The plaint schedule properties are not identified in any of the Plans. Even though the plaintiff admitted that he sold 45 cents out of the properties derived as per Exts.A1 and A2, the location of the said property is not disclosed, and the Sale deed with respect to the same was not produced. The area admittedly surrendered by the plaintiff for the road is also not disclosed. The suit is clearly barred as the suit was filed in the year 2004 and the resurvey was completed in the year 1975. The Trial Court simply accepted the boundary on account of the existence of certain trees in the properties. The area admittedly surrendered by the plaintiff for the road is also not disclosed. The suit is clearly barred as the suit was filed in the year 2004 and the resurvey was completed in the year 1975. The Trial Court simply accepted the boundary on account of the existence of certain trees in the properties. The property owner on the north-eastern side of the plaintiff’s property, Achukuty Thomas, is a necessary party, and hence, the suit is bad for no joinder of necessary parties. Learned counsel concluded the arguments by submitting that the suit being an experimental one to grab the property of the defendants 1 and 2, it is liable to be dismissed with costs. 12. On the other hand, the learned counsel for the party-respondents contended that the judgment and decree of the Trial Court and the First Appellate Court are well founded. The plaint schedule properties have been lying with clear cut boundaries as found by the Courts. Hence there is no need for fixation of boundaries. Since the dispute is only regarding Plaint A schedule property, which is the northern portion of the Plaint B schedule property, there is no need to measure the property as per the title documents. The Trial Court and the First Appellate Court considered the lie and nature of the disputed Plaint A schedule property and found that it has similarities with those of the Plaint A schedule property and not with those of the property of the defendants 1 and 2. The Trial court and the First Appellate Court found clear cut boundary between the properties of the plaintiff and the defendants 1 and 2 on account of the existence of a row of teak trees, the existence of which is specifically denied by the defendants 1 and 2. The Advocate Commissioner has clearly identified the Plaint A schedule property in the Ext.C7 Plan. Achukutty Thomas is not a necessary party as there is no dispute between Achukutty Thomas and the plaintiff. The records would clearly reveal that a part of plaintiff’s property was wrongly included in the Resurvey number of the defendants 1 and 2 and the plaintiff was taking all his efforts to correct the mistake in resurvey. Achukutty Thomas is not a necessary party as there is no dispute between Achukutty Thomas and the plaintiff. The records would clearly reveal that a part of plaintiff’s property was wrongly included in the Resurvey number of the defendants 1 and 2 and the plaintiff was taking all his efforts to correct the mistake in resurvey. Learned counsel concluded her arguments by submitting that the defendants 1 and 2 may not be allowed to grab the property of the plaintiffs taking undue advantage of mistake in resurvey. The First Appellate Court ought to have allowed Cross objection granting mandatory injunction to correct the mistake in resurvey. 13. Learned Government Pleader submitted that the boundary dispute between the parties is to be resolved between them. The relief of mandatory injunction was rightly denied finding that the same is barred under Section 14 of the Kerala Surveys and Boundaries Act. It is not liable to be interfered in the Cross Objection. 14. I have considered the rival contentions. 15. The Plaint schedule properties are claimed to be part of the property obtained by the plaintiff as per Exts.A1 and A2 documents of the year 1973. As per Exts.A1 and A2 plaintiffs derived 8.28 acres of land in Sy No.496/1A. The party- defendants claim that their property is having an extent of 6.04 acres as per Exts.B1 to B5 documents. Originally, all these properties are situated in Old Survey No.496/1A. Admittedly, the properties are not identified with reference to title deeds. Admittedly, the property of the party-defendants is situated on the northern side of the plaintiff’s property. Ext.C5 and C7 Plans were there before the Court. In both these plans, Plaint A and B Schedule properties are not referred. The properties are identified with reference to Resurvey Number. Ext.C5 Plan does not serve any purpose as it does not provide the relevant details to identify the properties of the parties. 16. In Ext.C7 Plan, the property in the possession of the plaintiff in RS No.99/1 is shown as ‘ABCDEF’. There is no dispute with respect to this land having an extent of 3.0792 Hectares. Property in possession of the plaintiff near the property of Achukutty Thomas is shown as ‘CHID’ having an extent of 1.71 are equivalent to 4.225 cents in RS.No.114/2. There is no dispute with respect to this land having an extent of 3.0792 Hectares. Property in possession of the plaintiff near the property of Achukutty Thomas is shown as ‘CHID’ having an extent of 1.71 are equivalent to 4.225 cents in RS.No.114/2. The party-defendants can not have any claim over this property as the said plot is abutting the property of Achukutty Thomas and it is situated in RS No.114/2 in which the party-defendants do not claim any property. The disputed portion is shown as ‘BGHC’ in RS No.114/3 having an extent of 1.91 ares equivalent to 4.720 cents. The northern boundary line of the said plot is ‘BGH’. The row of six teak trees are situated in this line. The southern boundary line of the said plot is ‘BC’. This is the Survey boundary line between RS No.99 and RS.No.114 also. The learned counsel for the appellants much stressed on the point that non-identification of the properties as per title deeds is fatal to the case of the plaintiff. If the disputed property is clearly identified before the Court, the Court can very well consider the title and possession of the same if sufficient evidence is available before it. In all cases, it is not necessary to identify the property with reference to the title deeds. It depends on the facts and circumstances of each case. In the case on hand, both sides claim that plot ‘BGHC’ is part of their property. The parties have clear idea about the identity of the disputed land. Hence, non-identification of the property with reference to the title deed and non-disclosure of the details of the assignments and surrender for the road by the plaintiff are not material factors. 17. With respect to the contention of non-joinder of Achukutty Thomas, it is seen that plots ‘BGHC’ having 1.91 ares and ‘CHID’ having 1.71 ares would make an extent of 3.62 ares equivalent to 8.945 cents. These two Plots make the Plaint B schedule property of 8.94 cents. The contention of the plaintiff is that Achukutty Thomas is not having any dispute with the Plaintiff with respect to the title of ‘CHID’ Plot. The Advocate Commissioner has also reported that the said Plot is in the possession of the plaintiff. These two Plots make the Plaint B schedule property of 8.94 cents. The contention of the plaintiff is that Achukutty Thomas is not having any dispute with the Plaintiff with respect to the title of ‘CHID’ Plot. The Advocate Commissioner has also reported that the said Plot is in the possession of the plaintiff. In Ext.C6, the Advocate Commissioner has reported that there is barbed wire fencing between the property of the plaintiff and the property of Achukutty Thomas. In these circumstances, the party- defendants could not raise a contention that there is a non- joinder of necessary parties on account of the non-impleadment of Achukutty Thomas as Achukutty Thomas has nothing to do with the dispute between the plaintiff and the party -defendants over Plot ‘BGHC’. 18. If the ‘BGH’ line having a row of six teak trees is taken as the northern boundary of the plaint schedule properties, Plaint A schedule property shall belong to the plaintiff. If the ‘BC’ line running along with the survey line is taken as the northern boundary of the plaint schedule properties, Plaint A schedule property shall belong to the party- defendants. Since, as per the old survey, both the properties had been remaining in the same survey sub division number, there is no meaning in measuring the properties as per old Survey Plan for identifying the properties of the respective parties. The boundary of the properties could not be decided as per survey lines. Admittedly, no natural boundary is there to separate the properties. The presence of only a row of teak trees alone is available in that area. These teak trees are situated on the northern side of Plaint A schedule property identified by the Advocate Commissioner. If the row of teak trees is not taken as the northern boundary, there is nothing to prove the boundary between the properties, and in such case, without fixation of boundaries in a suit for fixation of boundaries, the title over the plaint A schedule property could not be claimed. In such a case, the properties will have to be identified with reference to the title deeds of the parties to fix the boundary. 19. In such a case, the properties will have to be identified with reference to the title deeds of the parties to fix the boundary. 19. Though the learned counsel for the appellant argued that man-made boundary cannot be considered to decide the boundary line and only natural boundary alone should be considered to decide the boundary line, I am unable to accept such contention. If there is evidence for age-old man-made separation between two properties, there is nothing wrong in accepting the same as a boundary line in the absence of any evidence to the contrary. 20. Merely because, a portion of the property of the plaintiff isincluded in the Resurvey of the party-defendants and remedy for challenging the same is barred, the party- defendants could not claim title over such portion. It is a well-settled principle of law that revenue records cannot confer title. As resurvey records are also revenue records resurvey also cannot change title. In the decision of this Court in Ibrahim and Others v. Saythumuhammed and Others [2013(4)KLT 435], it is held that simply because it was wrongly shown in the survey plan or the basic tax register that a portion of the property covered by the title deed 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. In the decision of this Court in Venugopalan Nair v. Saraswathy Amma [ 2013(4) KLT 717 ], this Court held that only because there are changes in the extent of the property in the re-survey, that by itself would not confer title and that even beyond the period of one year after finalization of resurvey, a suit on title disputing the re-survey is maintainable. In Cheriyanad Grama Panchayath v. State of Kerala and Others [ 2019(5) KHC 699 ], this Court held that it is neither permissible nor advisable for the resurvey authorities to refix the boundary line of particular survey under the guise of resurvey based on possession; that no such power can be vested with the resurvey authority and hence what is done by them by refixing the boundary based on possession can only be considered as without any authority or exceeding the authority vested with them; that the resurvey authority cannot exercise the jurisdiction of a Civil Court to fix any boundary based on possession and that the possession is really a matter to be decided by a Civil Court. In view of the aforesaid settled legal proposition, I am of the view that the dispute involved in this suit cannot be decided on the basis of resurvey records. In other words, the inclusion of the disputed portion in the resurvey of the party-defendants alone will not conclude the issue. 21. Now the questions to be considered is whether the row of teak trees is made for separating the properties of the parties and is there any indication to show that the disputed portion is a part of the property of the plaintiff or party- defendants. For answering these questions there is no need to measure the entire properties of the parties as per their title deeds, especially when the parties have a clear idea about the disputed portion. Measurement of the entire properties is required only if it is found that there is no boundary between the properties of the parties and boundary is to be fixed in a suit for fixation of boundaries. 22. The plaintiff has specifically averred in the plaint that there is a row of teak trees to separate the boundary of his property with the property of the party-defendants. The party-defendants have specifically pleaded in their Written Statement that there is no such row of trees. The Advocate Commissioner has specifically found the existence of a row of teak trees. The ‘BGH’ line having row of teak trees and ‘HI’ line separating the property of the plaintiff and the property of Achukutty Thomas is in a straight line. It is difficult to think that a property owner will plant teak trees in a row inside his property away from the boundary. The ‘BGH’ line having row of teak trees and ‘HI’ line separating the property of the plaintiff and the property of Achukutty Thomas is in a straight line. It is difficult to think that a property owner will plant teak trees in a row inside his property away from the boundary. Such row of teak trees is seen only at one place of the property. In such a case, the probability is that the teak trees are planted along with the boundary line to separate the properties of the plaintiff and the party-defendants. This can only be the possible conclusion when other boundary marks are absent to separate the properties of the plaintiff and the party-defendants. In Ext.C5 Report, the Advocate Commissioner has specifically reported that the plantation direction of two of the four rubber trees in the disputed area is similar to the plantation direction of rubber trees on the property of the plaintiff. The platforms for the rubber trees in the plaintiff’s property and the disputed property are found to be similar. No similarity is reported between the disputed property and the property of the party-defendants. It would also strengthen the case of the plaintiff. 23. The party-defendants did not mount to witness box to prove hiscase offering himself for cross examination. Both sides cited the decision of the Hon’ble Supreme Court in Vidhyadhar v. Mankikrao and another [ AIR 1999 SC 1441 ] in support of their respective arguments. The learned counsel for the appellant cited the decision to substantiate the point that even if the defendant does not enter into witness box, still he can raise any legitimate plea available to him under law to defeat the suit of the plaintiff. The learned counsel for the appellant cited the decision to substantiate the point that even if the defendant does not enter into witness box, still he can raise any legitimate plea available to him under law to defeat the suit of the plaintiff. As pointed out by the learned counsel for the party respondents, it is specifically held in the said decision that where a party to the suit does not appear in the witness box and, states his own case on oath, and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council, making it clear that the question would depend upon the pleadings of the parties, the nature of the suit, the nature of the deed, the evidence led by the parties in the suit and other attending circumstances. Here, the party-defendants could have made the reasonable explanation of the aforesaid various factors found in favour of the plaintiff, offering themselves for cross-examination by the plaintiff. No such attempt was made by the party- defendants. In the facts and circumstances of the case, the absence of examination of any of the party-defendants is fatal, and hence adverse inference is to be drawn against the party-defendants. 24. The learned counsel for the appellant cited the decision of the Hon’ble Supreme Court in Moran Mar Basselios Catholicos and another v. Most Rev.Mar Poulose Athanasius and Others [1954 KLT 385] and the decision of this Court in K. M. Paul v. K. Pradeep [ 2006(2) KLT 20 ] to highlight the settled principle of law that in a suit based on title, the plaintiff can succeed only on proof of his title and mere destruction of the defendant's title carries the plaintiff nowhere. In the case on hand, the plaintiff has not attempted to destruct the title of the party-defendants, but only attempted to prove that he has title and possession over the disputed portion. The party-defendants have not made any attempt to prove their title apart from producing Exts.B1 to B5. 25. In the case on hand, the plaintiff has not attempted to destruct the title of the party-defendants, but only attempted to prove that he has title and possession over the disputed portion. The party-defendants have not made any attempt to prove their title apart from producing Exts.B1 to B5. 25. Considering the nature, character, and lie of the disputed area, I am of the view that the ‘BGH’ line having a row of teak trees in Ext.C7 Plan is the boundary separating the plaint schedule properties from the property of the party-defendants. There is nothing in the ‘BC’ line running along with survey line to show that it is the boundary. The plaint schedule properties are having well defined boundaries on its northern side separating from the property of the party-defendants as pleaded by the plaintiff. When a well-defined boundary is there separating the plaint schedule property, there is no need to measure the plaint schedule properties with reference to the title deeds of the parties. The substantial question of law is answered in the negative and against the appellants. 26. The plaintiff has established identity, title, and possession of the plaint schedule properties. The plaintiff is entitled to a declaration and injunction, and the Trial Court is perfectly justified in granting the same. I do not find any ground to interfere with the judgment and decree of the Trial Court, which is confirmed by the First Appellate Court. 27. The Cross objection was admitted without formulating any substantial question of law. It is against the denial of the relief of mandatory injunction. The mandatory injunction is sought against defendants 3 and 4, who are the State and Superintendent of Survey, to correct the mistake in the resurvey by including Plaint A Schedule property as part of Plaint B schedule property in resurvey records. It was denied by the Trial Court finding that the same is barred under Section 14 of the Kerala Surveys and Boundaries Act. It is confirmed by the First Appellate Court. There is nothing wrong in the said finding. No substantial Question of law arises in the Cross Objection. Hence, the Cross Objection is liable to be dismissed. 28. The Regular Second Appeal and Cross Objection are dismissed without costs.