A claimant can assert both ownership and prescriptive title; failure to frame an issue does not invalidate proceedings if parties were aware and no prejudice occurred.

Dated this the 12th day of April, 2024 This second appeal has been preferred by the appellant in AS No.50 of 2009 on the file of the District Judge, Pathanamthitta, who is the plaintiff in O.S.No.500 of 2005 on the file of the Munsiff Court Pathanamthitta, against the judgment dated 9.6.2015 dismissing the above appeal.

2. The appellant filed the above suit for declaration of title, fixation of boundaries, recovery of possession and injunction. The case of the appellant is that he obtained plaint schedule item No.1 property consisting of 12 cents comprised in Sy No.384/16 of Konni Village as per Exhibit A1 partition deed No.525/1956 and item No.2, six cents and more property comprised in the very same Survey number as per Exhibit A2 Sale Deed No.2719/77. Though as per Exhibit A2, he had purchased 12 cents, the remaining six cents was re-conveyed to the seller and as such he is in absolute possession and enjoyment of 18 cents of property. The 1st respondent is the nephew of the appellant. The 2nd respondent is the son of the 1st respondent. The 3rd respondent is the intending purchaser of the above property from respondents 1 and 2. As per Exhibit A1 partition deed, the appellant's brother, namely the father of the 1st defendant obtained six cents of property and the same was settled by him in favour of the 1st respondent as per Exhibit A3 settlement deed No.2141/1991. Subsequently, as per Exhibit A4 settlement deed No.483/2005, the 1st respondent settled the above property in favour of the 2nd respondent. However, in Exhibit A4, the extent of the property is shown as 10.500 cents, instead of 6 cents.

3. According to the appellant, there was no clear demarcating boundaries separating the plaint schedule item Nos.1 and 2 properties. In the year 2000, the respondents 1 and 2 brought a lorry load of granite into the plaint schedule item No.1 property with the permission of the appellant, on the guise of renovating the residential building. Thereafter, they have arranged the granite inside the plaint schedule item No.1 property in line and thereafter claimed right over a portion of plaint schedule item No.1 property lying on the southern side of the above granite wall, forcefully taken possession of the above portion and attempted to alienate their property including the above portion. The above portion of appellants property annexed by the respondents having an extent of 41/2 cents is scheduled as item No.3. In the suit the appellant sought for declaration of title over the plaint schedule item No.3, fixation of boundary of the appellant's property, recovery of possession of item No.3 property as well as a prohibitory injunction.

4. The Trial Court found that the defendants constructed a residential building and started residing therein inside the plaint schedule item No.3 property since the year 1973-74 and perfected their title over the above property by adverse possession and limitation and thereby dismissed the suit. The First Appellate Court confirmed the above finding of the trial court. Aggrieved by the above concurrent findings of the trial court as well as the First Appellate Court, the plaintiff in the suit preferred this second appeal raising various grounds.

5. As argued by the learned counsel for the respondents, the jurisdiction of the High Court to decide the Second Appeal is confined only to substantial questions of law and the High Court cannot interfere with the concurrent findings on questions of fact.

( Syeda Rahimunnisa v. Malan Bi (dead) by legal representatives and another [(2016) 10 SCC 315] and Ramathal and Ors v. K. Rajamani (Dead) through LRs and Ors [AIR 2023 SC 3978] .

6. At the time of admission, this Court formulated certain substantial questions of law. However, at the time of arguments, after hearing both sides, this Court found it necessary to reformulate the questions of law involved in the case as follows:

1. Whether the defendants/respondents can claim title as well as prescriptive