Ramaiah vs G. Kuppu Swamy and Others

Anand Byrareddy, J.—Heard the counsel for the appellant. The appellant was the defendant before the trial court in a suit for permanent injunction. It was the case of the plaintiffs that they had purchased the suit schedule property from one Muniyamma, the mother of the defendant under a registered sale deed dated 24.5.2001 Muniyamma is said to have entered into an agreement with M/s. Keerti Enterprises in respect of land bearing Survey No. 83/3 of Thanisandra village. The plaintiffs are said to have purchased the suit property under a sale deed executed by Muniyamma and that they were put in possession under the very sale deed. The defendant however sought to lay claim over the suit schedule property and sought to trespass, on the same at which point of time a suit for injunction was filed. On service of suit summons, the defendant entered appearance and filed written statement to contend that the land bearing Survey No. 83/3, measuring 2 acres 12 guntas was jointly purchased by the defendant and his mother Muniyamma under a registered sale deed dated 13.6.1973 from one Akkayyamma. That after purchasing the suit schedule property, the defendant and his mother Muniyamma continued to be the joint owners of the suit schedule property. Even if the plaintiff was setting up a sale deed that was void ab initio, as the property was demonstrated with reference to the sale deed dated 13.6.1973, which was produced and marked as Exhibit D.1 and which clearly indicated that the defendant alongwith his mother were the joint owners of the property, Muniyamma by herself could not have executed the sale deed nor put the plaintiff in possession of the suit schedule property and hence, there was a cloud on the title of the plaintiff and the suit for permanent injunction was not maintainable. It is on those pleadings that the court below had framed the following issues:

"1. Whether the plaintiffs prove their legal possession over the suit schedule property as on the date of the filing of the suit?

Whether the plaintiffs further prove illegal interference made by the defendant in their possession over the suit schedule property?"

The court below had answered the same in the affirmative in favour of the plaintiff and has decreed the suit. It is that which is under challenge in the present appeal.

The learned Counsel for the appellant would reiterate the defence raised, in that, there is no denial of the fact that the land bearing survey No. 83/3, measuring 2 acres 12 guntas was jointly purchased by the defendant and his mother and therefore the sale deed set up by the plaintiff on the face of it was executed only by his mother without the defendant. Hence, the title set up by the plaintiff could not be accepted when it is prima facie demonstrated that the court belo ought to have relegated the parties to a comprehensive suit and could not have adjudicated the suit and this is directly opposed to the settled principle of law as laid down by the Supreme Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, AIR 2008 SC 2033 : (2008) 3 CLT 23 : (2008) 4 SCALE 718 : (2008) 4 SCC 594 : (2008) AIRSCW 4959 , particularly Paragraphs 11 to 11.3, where the general principles of law settled down as follows:

"11.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction."

The learned Counsel would particularly draw attention to Paragraph 11.3, wherein the apex court has held that where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under cloud or in dispute and he is not in possession or not able to establish possession, necessarily, the plaintiff will have to file a suit for declaration, possession and injunction. This the learned Counsel would submit is the established principle of law, which the court below has completely overlooked, when admittedly, the suit schedule property was a vacant site and the plaintiff was obviously not in possession of the same, coupled with the circumstance that when the title deed was, on the face of it, invalid, the plaintiff ought to have been relegated to a comprehensive suit and the grant of relief therefore results in a miscarriage of justice to the appellant and therefore seeks that the judgment and decree be set aside.

However, the learned Counsel for the respondent would contend that the plaintiff had produced the sale deeds which are Exhibits P.16 to P.50, which are several registered sale deeds executed between the year 2000 and 2004, in respect of various third parties. It was not in dispute that the entire extent of land bearing Survey No. 83/3 was subject matter of agreement of sale in favour of one M/s. Keerti Enterprises and the execution of the sale deed by the mother of the defendant was with M/s. Keerti Enterprises acting as a consenting witness. It is on noticing that of the several sale deeds executed in favour of third parties, in respect of portions of the very land in Survey No. 83/3, that the defendant himself had independently executed the sale deeds, the court below did not find that the sale deed in favour of the plaintiff having been executed by the mother of the defendant as being unusual and since it was not in dispute that the entire extent had been sold under these dozens of sale deeds, the defendants seeking to claim possession or title, was not setting up cloud on the title of the plaintiff. On the other hand, it is the defendant, who would have to establish his case by challenging the sale deed in favour of the plaintiff It is on that reasoning that the court below has proceeded that the sale deed produced by the plaintiff was sufficient proof of title and the sale deed itself declaring that possession had been handed over to the plaintiff was sufficient proof to be entitled to the relief of injunction. Hence the learned counsel would submit that the court below was justified in granting the judgment and decree.

On these rival contentions and having regard to the state of the law, it is indeed true that if the cloud was cast on the plaintiffs title, the civil court would normally relegate the parties to a comprehensive suit for declaration and possession and though other consequential reliefs. The cloud that is sought to be cast on the title of the plaintiff in the present case on hand is not of a nature, which would require the plaintiff to pursue the remedy of declaration of title and other reliefs. As rightly pointed out by the learned counsel for the respondents, it was for the defendant to establish that the plaintiff was not entitled to claim title on the basis of the sale deed executed by his mother when in respect of portions of the very same land, the defendant himself has executed sale deeds which are in favour of third parties. Therefore, it is for the defendant to establish that there was no such arrangement between the his mother and himself where they could not have executed such sale deeds. This is an aspect which requires to be considered in a comprehensive suit which can be brought by the defendant. The court below having granted the judgment and decree in favour of the plaintiff, therefore, cannot be faulted on the ground that it runs counter to the settled principle of law as reiterated by the Supreme Court in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, AIR 2008 SC 2033 : (2008) 3 CLT 23 : (2008) 4 SCALE 718 : (2008) 4 SCC 594 : (2008) AIRSCW 4959 .

Consequently, the appeal is dismissed.