Yadhavan and Another vs Md. Dayanudin and Others

Abdul Hadi, J.—Having failed in both the courts below, the defendants have preferred this Second Appeal. The suit by the respondents

plaintiffs is for an injunction against possession and interference in respect of the vacant portion of the suit property, of an extent of 600 sq. ft. out

of the total extent of 1767 sq. ft. of the entire suit property. The plaintiffs claimed title and possession under Ex. A.1 sale deed dated 18.10.1989

from the 3rd defendant.

The main contention of learned counsel for the appellants is that the courts below have not considered the title secured by the defendants to the

abovesaid 600 sq. ft. by adverse possession as found in an earlier proceeding, whose judgment dated 5.12.1984 is marked as Ex. B4.

But, first of all it must be noted that the plaintiffs were not parties to the said earlier proceeding. That apart, the lower appellate court specifically

finds that in Ex. B4 the abovesaid 600 sq. ft. vacant site has not been referred to and the said fact is also admitted by D.W. 1, the 1st defendant.

The lower Appellate Court also finds that in Ex. B4, there is nothing to show that the above said 600 sq. ft. vacant site belongs to the appellants. I

also find from the deposition of D.W. 1 that he has admitted as follows :

That apart, it is also admitted by learned counsel for the appellants that Ex. B4 was not put at all to P.W. 1, the 1st plaintiff, through whom it was

marked. If really Ex. B4 related to the above said suit disputed property of 600 sq. ft., the appellants should have put Ex. B4 to P.W. 1, while

cross-examining him. Further to show the actual description and extent of the property involved in Ex. B4, the appellants have neither filed the

plaint copy nor the decree copy in the abovesaid Ex. B.4 proceeding. No doubt it appears from Ex. B4 judgment that with reference to the

property involved in the said proceeding the 5th defendant therein, who is the 1st defendant herein, along with certain other defendants have

prescribed title by adverse possession. But from the judgment of the Courts below, it is clear that the appellants have not proved that Ex. B4

related to the above referred to 600 sq. ft. vacant site involved in the present suit. So there is absolutely no scope for the appellants claiming

adverse possession to the above said 600 sq. ft. vacant site. In fact, the finding of the lower Appellate Court is as follows :

In view of the above said factual findings, there is absolutely no error of law in the judgment of the Courts below.

No doubt, learned Counsel for the appellants contends that a bare injunction suit as the present one, is not maintainable when the defendants

have denied title of the plaintiffs. In this connection he relies on Sri Dasnam Naga Sanyasi and another Vs. Allahabad Development Authority,

Allahabad and another, . But, first of all, it must be stated that a mere denial of title of the plaintiffs by the defendants will not debar the plaintiffs

seeking for a bare injunction decree against the defendants. As I have already mentioned, the defendants have not established in the present case

that they have title to the disputed suit vacant site. No doubt, in the above said Allahabad decision, while dealing with a proceeding against grant of

temporary injunction by the lower court, the Allahabad High Court has observed thus :

.....Plaintiff claims the land to be his whereas defendant is attempting to raise construction on the land claiming the same to have been acquired. In

such a dispute plaintiff ought to have sought for declaration of this title and consequential injunction, if at all he is in possession. Filing of a mere suit

for perpetual injunction is conduct of plaintiff to avoid the normal course and this conduct prohibits assistance of the court to get the relief u/s 41(1)

of the Specific Relief Act.

No doubt, this observation seems to suggest that in no case, where the defendant denies the title of the plaintiff, the plaintiff can file a suit for bare

injunction against possession interference. But, with due respect, I am unable to agree with the above said view expressed so absolutely, as has

been done in the above said judgment, in the light of several other decisions, holding differently. For example in A.L.V.R. Ct. Veerappa Chettiar

Vs. Arunachalam Chetti and Others, it has been held that the fact that the question of title also may have to be incidentally gone into in deciding

whether an injunction can be given or not, is not any justification for holding that the suit is for a declaration of title and for injunction, and that there

can be no objection to the maintainability of a suit for only an injunction. In Ponnuswami v. Sinnana, AIR 1956 Mad. 52 : 1955 68 L.W. 578, a

bare injunction suit was allowed as maintainable. Vide also Nooney Kondiah Vs. Nayudu Ramanareddy, and Venkata Ranga Rao v.

Ramachandra Rao, AIR 1941 Mad. 91 : 52 L.W. 610. Further, in Purshottam Dass and Others Vs. Har Narain and Another, it has been held that

the prayer for declaration will be a surplusage if the plaintiff can get the relief for injunction without praying for declaration, but that the declaration

has to be prayed for where an obstacle has to be removed before the plaintiff can claim the relief of injunction simpliciter. In the present case, there

is no such obstacle for granting the relief of injunction in the light of the above said factual findings of the Court below.

The net result is, the Second Appeal is not admitted, but dismissed. C.M.P. No. 18727 of 1995 for stay is consequently dismissed.