Subhaga & Ors vs Shobha & Ors on 7 July, 2006
6. The High Court has also upheld the title claimed by the plaintiff over the plot, Plot No. 1301/1 Ba. Once we accept the identification made by the Commissioner as was done by the first appellate court, it is clear that the plaintiff has the right to have the disputed construction removedand the well filled up. That a property can be identified either by boundary or by any other specific description is well established. Here the attempt had been to identify the suit property with reference to the boundaries and the Commissioner has identified that property with reference to such boundaries. Even if there was any discrepancy, normally, the boundaries should prevail. There was no occasion to spin a theory that it was necessary in this suit to survey all the adjacent lands to find out whether an encroachment was made in the land belonging to the plaintiff. In this situation, we are satisfied that the judgment and decree of the High Court calls for interference. We are also satisfied that the lower appellate court was justified in affirming the decree granted in favour of the plaintiff on the pleadings and the evidence in the case.
But the above decision is not applicable to the facts of the present case because in the above case, the suit has been filed for declaration of title and injunction and in that, both the Trial Court and the first appellate Court had decreed the suit on the basis of the report filed by the Advocate Commissioner. However, the High court reversed the judgment and decree of the first appellate court and dismissed the suit on a finding that there was no proper identification of the suit property by the plaintiff either in the plaint or at the spot and since the boundaries cannot be ascertained without surveying the adjoining plots, no decree could be granted. But the Hon'ble Apex Court had set aside the judgment and decree of the High court holding that when the description of the boundaries in the plaint is admitted by the defendant as well as the Advocate Commissioner, there is no necessity to measure the other properties