Establishing possession is critical in boundary disputes for determining injunction claims.

ORAL JUDGMENT :-

Heard Shri S. D. Lotlikar, learned Senior Counsel appearing for the appellants and Shri C. A. Coutinho, learned Counsel appearing for the respondent.

2. The above appeal came to be admitted by an order dated 20th January, 2009, on the following substantial questions of law :

1. Whether it was necessary for the courts below to have framed a issue/point for determination as to which party was in possession of the disputed portion ?

2. Whether the courts below should have considered the evidence on record to find out which party was in possession and that having not been done, whether the judgment and order passed by the courts below should be said to be perverse ?

3. Shri S.D. Lotlikar, learned Senior Counsel appearing for the appellants submits that there is a boundary dispute between the property belonging to the appellants and the respondent as, according to him, the property of the appellants is surveyed under No.58/9 of village Sernabatim and a portion thereof is surveyed under No.59/1A. The learned Senior Counsel submits that the demarcating line of the property of the appellants was a drop of nearly one metre in height, which was accepted to be the boundary line between the two properties. The learned Senior Counsel further submits that on the basis of such boundary line, the appellants got their plans approved for construction of a house, after obtaining all necessary permissions somewhere in the year 1980. The learned Senior Counsel further points out that the appellants always had an impression that the boundary line separating the property of the appellants and the respondent towards the southern side was the said drop and consequently, according to him, such boundary line was shown to the authorities while obtaining the sanctions. The learned Senior Counsel has, thereafter, taken me through the plan and pointed out that the setback from such demarcating line to the outer southern wall of the house of the appellants is 4.25 metres. The learned Senior Counsel further points out that considering the said distance, the claim of the respondent that the whole property surveyed under No.59/1A belongs to the respondent is totally erroneous. The learned Senior Counsel further points out that the property was resurveyed somewhere in the year 1981 on the basis of the statement recorded of the mother of the appellants fixing the demarcating line, separating the property of the appellants and the respondent on the southern side. The learned Senior Counsel, however, points out that the said statement, in any event, cannot defeat the claim of the appellants to the disputed portion as the mother did not know the legal position about the title of the property at the relevant time. The learned Senior Counsel further submits that the appellants, as well as their ancestors, were always enjoying the property as per the demarcating vestige, which was a drop separating the property of the appellants and the respondent and, as such, the Courts below were not justified to grant the injunction, without examining as to who is in possession of the disputed portion. The learned Senior Counsel further points out that the appellants also filed a counter claim to fix the demarcating line between the property of the appellant and the property of the respondent towards the southern side. The learned Counsel further points out that the respondent had encroached into the property of the appellants sometime before the filing of the suit and taking advantage of such mischief, the respondent claimed that they were in possession of the disputed portion. The learned Senior Counsel has, thereafter, taken me through the judgment of the lower appellate Court to point out tha