Gangadhar Patel And Ors vs Bhoj Kumar And Ors

Sanjay K. Agrawal, J

These two second appeals preferred by the defendants/appellants were admitted for hearing by formulating the following common substantial

questions of law:Â ""1. Whether the findings of the first appellate Court that from the revenue record of Ex.D/7, it is established that Damrudhar and

after his death plaintiff Ramela Bai was in possession of the suit land as owner, is perverse and contrary to the entries of document of Ex.D/7 wherein

the name of Usatram etc. and his father Ramsingh is also entered in possession column ?

Whether in view of the document of Ex.D/1 which was exhibited by Damru Rawat through whom the plaintiffs are claiming title and by which he

has surrendered his right over the property in favour of Trilochan Gouitya, who subsequently transferred the same to Chandan Singh Bihari by the

deed of Ex.D/2 through whom the defendants are claiming title, the findings of both the Courts below that the plaintiffs have established their title over

the suit property is legally justified?"" [For the sake of convenience, the parties would be referred hereinafter as per their status shown in the suit

before the trial Court].

The suit property was originally held by Damrudhar Rawat. DeceasedÂoriginal plaintiff was her wife. She filed a bare suit for permanent injunction

stating interÂalia that earlier her husband was in possession of the suit land and after his death, she is in possession of the suit land, to which the

defendants disputed her possession and tried to dispossess her necessitated the filing the suit that she is entitled for permanent injunction over the suit

land by restraining the defendants.

The defendants setÂup the plea that the suit property belonged to Damrudhar and Damarudhar has relinquished his share in the suit property vide

Ex.DÂ1 on 28.5.43 in favour of Trilochan Goutiya and vide Ex.DÂ2 Trilochan Goutiya has transferred the same in favour of Charan Singh on

28.5.43, from whom defendants No.1 to 4 have purchased the suit land on 28.5.50 vide Ex.DÂ3 and since then they are in possession of the suit land

and as such, the plaintiff has no right and title over the suit land.

The trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 24.2.2003, dismissed the suit

holding that though the plaintiff was in possession of the suit land on the date of institution of suit i.e. 8.7.96, but the defendants in the year 1995Â96

illegally dispossessed her from the suit land and since then they are not in possession over the suit land, against which, legal representatives of the

plaintiff and the defendants both had filed first appeals under Section 96 of the CPC. The first appellate Court dismissed the appeal of the defendants,

however, allowed the appeal of the plaintiff and decreed the suit holding that the plaintiff is in possession over the suit land on the date of institution of

the suit and therefore, she is entitled for decree for permanent injunction, against which, these two second appeals under Section 100 of the CPC have

been preferred by the appellants/defendants, in which common substantial questions of law have been formulated and setÂout in the opening

paragraph of this judgment.

Mr.R.S.Patel, learned counsel for the appellants/defendants, would submit that the first appellate Court is absolutely unjustified in entertaining a

bare suit for permanent injunction. He would further submit that title of the plaintiff was seriously disputed by the defendants as the suit land has

ultimately been transferred in favour of the defendants vide Ex.DÂ3, therefore, decree for permanent injunction ought not to have been granted by the

first appellate Court in favour of the plaintiff, as such, decree granted by the first appellate Court in favour of the plaintiff deserves to be set aside and

that of the trial Court be restored.

None present for respondents No.1 and 2/plaintiffs.

I have heard learned counsel for the appellants, considered his submissions made hereinabove and also went through the records with utmost

circumspection.

The plaintiff filed a suit for permanent injunction simpliciter stating interÂalia that she is in possession of the suit land as the suit land was ultimately

held by Damrudhar, husband of the original plaintiff and after his death, she (plaintiff) is in possession of the suit land as owner and she is continuing in

possession, which is being interfered with by defendants No.1 to 4, therefore, she is entitled for permanent injunction, in which the defendants setÂup

the plea of title vide Ex.DÂ3 stating that Damrudhar has relinquished his right in favour of Trilochan Goutiya vide Ex.DÂ1 and thereafter Trilochan

Goutiya transferred the suit land to Charan Singh vide Ex.DÂ2 and Charan Singh sold the suit land to the defendants vide Ex.DÂ3. The trial Court

after analyzing the evidence available on record clearly held that the plaintiff was in possession over the suit land on the date of institution of the suit

and thereafter she has been dispossessed by the defendants and negated the plea of title based on Ex.DÂ​1 to Ex.DÂ​ 3 taken by the defendants and in

appeal under Section 96 of the CPC, the first appellate Court dismissed the appeal of the defendants and affirmed the finding on issue Nos.2, 5, 6 and

7 in favour of the plaintiff and thereby it was held that the plaintiff is in possession over the suit land since the date of institution of the suit and thereby

granted decree for permanent injunction in favour of the plaintiff.

In these appeals, learned counsel for the appellants/defendants attempted to demonstrate that the plaintiff was not in possession over the suit land

on the date of institution of the suit, but he could not demonstrate that finding of the first appellate Court holding that the plaintiff is in possession of the

suit land since the date of institution of suit is perverse and contrary to law.

The Supreme Court in the matter of Anathula Sudhakar v. P. Buchi Reddy (dead) by LRS. and others (2008) 4 SCC 59 4Â has held as under:Â‐

15.In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on

the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the

property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or

lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures,

as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue

in such a suit, though it may arise incidentally or collaterally.

To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :

(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential

injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a

consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an

injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The

prayer for injunction will be decided with reference to the finding on possession.

But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may

directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either

specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue

relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are

necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the

remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is

simple and straightÂforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the

normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not

be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a

claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases

where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.

11.Following the principle of law laid down by the Supreme Court in Anathula Sudhakar (supra) to the facts of the present case, it is quite vivid that

the plaintiff is in lawful possession over the suit land on the date of institution of the suit and it is her case that her lawful possession is being interfered

with by the defendants and ultimately she filed a simpliciter suit for permanent injunction, which is maintainable in view of para 15 & 21(b) of the

judgment of the Supreme Court in Anathula Sudhakar (supra).

The defendants though tried to claim title over the suit land, but did not lay any counterÂclaim claiming title over the suit land, as such, the first

appellate Court is justified in holding that the plaintiff is in possession over the suit land since the date of institution of the suit and the defendants have

attempted to dispossess her from the suit land during pendency of the suit, but the plaintiff is in possession and therefore, she is entitled for decree for

permanent injunction. Finding recorded by the first appellate Court that original plaintiff/now his legal representatives are in possession of the suit land

is finding of fact based on evidence available on record, which is neither perverse nor contrary to record. I do not find any perversity or illegality in the

said finding.

Accordingly, the second appeals deserve to be and are hereby dismissed. However, this will not preclude the defendants from filing

comprehensive suit for declaration of their title over the suit land within four months from the date of this judgment, if so advised, as the suit filed by

the plaintiff was only for permanent injunction and question of title was not directly an issue in the instant suit filed by the plaintiff herein. No cost(s).

A decree be drawnÂ​up accordingly.