Possession claims can be established through prior judgments, even in the absence of explicit title declarations in the current suit.

JUDGMENT

The defendant in a suit for fixation, putting up boundary and for injunction has come up in the appeal aggrieved by the concurrent findings rendered against her by the Munsiff Court, Adoor, in O.S. No.401 of 2000, which is affirmed by the District Court, Pathanamthitta, in A.S. No.133 of 2013.

2. An extent of 9.51 Ares comprised in Resurvey No.700/3 of Pallickal Village was purchased by the plaintiff by sale deed No.2728/1983 from the mother of the defendant. The suit, O.S. No.491 of 1989, was instituted by the seller at the instigation of the defendant before the Munsiff Court, Karunagappally, for setting aside the sale deed, ended in dismissal. None prosecuted the matter further because the dismissal was for default on 28.9.1996. Later, the plaintiff filed an application before the resurvey authority for measuring and fixing the boundaries, to which the defendant objected, and hence the suit. The defendant resisted the suit by contending that her mother never executed the sale deed No.2728/1983 and therefore the plaintiff did not get any title over the property. The entire extent of 23.40 Ares is still in possession of the mother of the defendant, and, after resurvey, the plaintiff has no right to seek fixation of the boundary. The suit was initially decreed ex parte, and the decree was put in execution. However, the plaintiff appealed, and on appeal, the first appellate court set aside the judgment and decree and remanded the suit for fresh consideration. In the meanwhile, O.S. No.72 of 2006 was filed by the 2^nd appellant herein for injunction restraining the plaintiff in this case from trespassing into the property. In the said suit, the 1^st respondent/plaintiff filed a counterclaim for a declaration of title and possession. By judgment and decree dated 12.3.2009, the suit was dismissed, and the counterclaim was decreed. On remand, the trial court though, was not satisfied with regard to the claim of the plaintiff for an absolute possession over the property; nevertheless, it presumed possession based on certain probable attending circumstances and proceeded to decree the suit, granting relief to the plaintiff by ordering the boundary to be fixed in terms of Ext.C3 plan. On appeal by the defendant, the District Court, Pathanamthitta confirmed the findings of the trial court and dismissed A.S. No.133 of 2013 and hence the present appeal.

3. Heard Sri. B. Krishna Mani, the learned counsel appearing for the appellant and Sri.K.K.Sethukumar, the learned counsel for the respondent.

4. On 21.8.2015, this Court framed the following substantial questions of law:

(i) Is the suit without a prayer for declaration of title maintainable?

(ii) Under the circumstances, whether the court below was justified in adjudicating the question of title?

(iii) Is it not clear from the evidence on record that the plaintiff has neither title nor possession over the plaint schedule property and that Ext.A1 can never establish the title of plaintiff?

(iv) Is the lower appellate court justified in its conclusions based on Ext.A6 to A8?

(v) Is the lower appellate court justified in holding that the defendant is bound by decree in O.S.No.92/2006 and Ext.A1 when no issues have been framed?

(vi) Is it not clear that the lower appellate court has clearly gone wrong in holding that the defendant is estopped from raising any contention challenging Ext.A1?

(vii) Is it not clear that the suit is bad for non-joinder of the necessary parties and fixation of southern boundary is totally erroneous?

5. The learned counsel for the appellant contended that the decree for fixation of boundary could not have been granted by the courts below without a specific finding that the plaintiff was in possession of the property. According to the learned counsel, a reading of the judgments would show that the court below itself was not convinced about the possession of the plaintiff, but proceeded to decree the suit based on presumptions and conjectures, which is impermissible un