Saturday, 29 December 2018

Whether suit for permanent injunction is maintainable if defendant is disputing title of plaintiff?

 The issue that fall for our consideration is: “Whether
the suit for permanent injunction is maintainable when the
defendant disputes the title of the plaintiff?”
11. It is well settled by catena of Judgments of this
Court that in each and every case where the defendant
disputes the title of the plaintiff it is not necessary that in all
those cases plaintiff has to seek the relief of declaration. A
suit for mere injunction does not lie only when the defendant
raises a genuine dispute with regard to title and when he
raises a cloud over the title of the plaintiff, then necessarily in
those circumstances, plaintiff cannot maintain a suit for bare
injunction.
12. In the facts of the case the defendantBoard
by relying
upon the land acquisition proceedings and the possession
certificate could successfully raise cloud over the title of the

plaintiff and in those circumstances plaintiff ought to have
sought for the relief of declaration. The Courts below erred in
entertaining the suit for injunction.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8241 OF 2009

JHARKHAND STATE HOUSING BOARD  V  DIDAR SINGH & ANR.

Dated:OCTOBER 09, 2018.
N.V. RAMANA, J.

This appeal by special leave is directed against the
impugned judgment and decree dt. 12.10.2001 passed by the
High Court of Jharkhand at Ranchi in Second Appeal
No.88/2000 whereby the High Court dismissed the appeal filed
by the Board by confirming the concurrent findings of the courts
below.
2. Brief facts in nutshell for proper adjudication of the
dispute involved in the present appeal are, the plaintiff has filed a
suit for permanent injunction alleging that suit schedule property
originally belongs to Raja A.P. Singh Deo of estate of Seraikella.

NONREPORTABLE
Later the property was purchased by Kumar Subodh Singh Deo
vide registered Sale Deed No.3201 dated 4.12.1989. He, in turn,
sold the property to the plaintiff vide registered Sale Deed dated
8.8.1990 for a consideration of Rs.12,000/and
since then he is
in peaceful possession and enjoyment of the property by
constructing a residential building in the land. While that being
so, the defendantBoard
has issued notice dated 4.1.1992 asking
the plaintiff to quit and give vacant possession of the suit land
and threatened the plaintiff to dispossess from the suit land
without any right and title over the same. Hence the plaintiff has
come up with the present suit to protect his possession.
3. The defendant has filed the written statement
contending that the plaintiff vendor has no legal right and title
over the suit schedule property and the sale deed executed by his
vendor will not confer any right or title to the plaintiff. Further
the suit schedule property along with other properties was
acquired by the defendants by way of land acquisition
proceedings in the year 1965 and the possession was handed
over to them. As such, except the defendant, no one else has
right or title over the property. The defendant has taken several

other grounds with regard to maintainability of the suit on the
ground of misjoinder of proper and necessary parties to the suit,
on the ground of limitation, under section 92 of the B.S.H.B. Act
and Rules, as no prior notice was issued before instituting the
suit. Also under Section 62 of the CNT Act, it is the case of the
defendant that the present Suit is not maintainable without
seeking the relief of declaration of title. The suit schedule
property was recorded in the revenue records in the name of the
defendant. Without seeking right, title, possession and correction
of entries in record of right, plaintiff cannot maintain the suit for
injunction and hence sought for dismissal of the suit.
4. The trial court has decreed the suit holding that suit is
not barred under any of the provisions of the B.S.H.B. Act, CNT
Act and the Limitation Act. Though Court took note of Ex.B

letter of giving possession to the defendant has come to the
conclusion that the evidence on record does not establish that
the land acquisition proceedings have attained finality. With
regard to maintainability of a suit for injunction, Court gave a
finding that as the plaintiff is able to prove his possession by oral

and documentary evidence, he can maintain a simplicitor suit for
injunction without seeking the relief of declaration.
5. The unsatisfied defendant approached the 1st
Additional District Judge, Singhbhum (West) at Seraikella by way
of Title Appeal No.46/1995. The 1st Appellate Court dismissed
the appeal by holding that the mere suit for injunction is
maintainable as the Board threatened to demolish the plaintiff’s
house and the proceeding under the Land Acquisition Act are not
successfully proved by the defendant by adducing cogent
evidence. The defendant further carried the matter to the High
Court by way of second appeal and that also ended up in
dismissal. The High Court also observed that as the plaintiff is in
possession of the property, he can protect his possession against
any interference and it is not necessary to prove his title to the
property.
6. The unsuccessful defendant is before us by way of this
appeal.
7. The learned counsel for the appellantBoard
has
argued that the disputed property was part of the Government
land acquired through land acquisition proceedings and the

possession of the same lies with the appellantBoard.
The claim
of the respondentsplaintiffs
over the suit land was hence illegal
and they were enjoying the same unlawfully and without a valid
title. The appellantBoard
therefore sought to evict the
respondentsplaintiffs
from the suit land. Further, they claimed
that the suit is barred under Section 92 and Section 62 of the
Bihar State Housing Board Act and Rules. The plaintiff’s suit for
mere injunction is not maintainable without seeking the relief of
declaration of title and hence the Courts below erred in decreeing
the suit.
8. On the other hand, the counsel for the respondents
has submitted that the suit land was a private property and
respondent No.1 herein got the ownership rights by virtue of a
registered sale deed No. 2343 executed on 7th August, 1990 and
since then the property has been in his possession. He could
prove his possession and prima facie title to the property. It is
further stated that without claiming the relief of declaration of
title, he can maintain the suit for mere injunction and Courts
below have rightly and concurrently found that he is in
possession of the property.

9. We have heard the learned counsel for the appellant
and the respondent and perused the material available on record.
In view of the concurrent finding of facts by the courts below we
are conscious of the limited scope of adjudication in this appeal.
10. The issue that fall for our consideration is: “Whether
the suit for permanent injunction is maintainable when the
defendant disputes the title of the plaintiff?”
11. It is well settled by catena of Judgments of this
Court that in each and every case where the defendant
disputes the title of the plaintiff it is not necessary that in all
those cases plaintiff has to seek the relief of declaration. A
suit for mere injunction does not lie only when the defendant
raises a genuine dispute with regard to title and when he
raises a cloud over the title of the plaintiff, then necessarily in
those circumstances, plaintiff cannot maintain a suit for bare
injunction.
12. In the facts of the case the defendantBoard
by relying
upon the land acquisition proceedings and the possession
certificate could successfully raise cloud over the title of the

plaintiff and in those circumstances plaintiff ought to have
sought for the relief of declaration. The Courts below erred in
entertaining the suit for injunction.
13. Hence in view of the above discussion, we are of the
considered opinion that the judgment and decree impugned in
the appeal deserves to be set aside and accordingly we set aside
the same. However, a request was made at the time of hearing
on behalf of the plaintiff to direct the parties to maintain status
quo for a period of three months to enable the plaintiff to avail
the appropriate remedies available under law. In view of the long
pending litigation, we deem it appropriate to direct the parties to
maintain status quo with regard to possession for a period of
three months. Resultantly, the appeal is allowed with the above
observations by setting aside the judgment and decree dt.
12.10.2001 but in the circumstances without costs.
………………….……………………..J.
(N. V. RAMANA)
………………….……………………..J.
(MOHAN M. SHANTANAGOUDAR)
NEW DELHI,
OCTOBER 09, 2018.
7
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8242 OF 2009
JHARKHAND STATE HOUSING BOARD … APPELLANT
VERSUS
ANIRUDH KUMAR SAHU & ORS. …RESPONDENTS
JUDGMENT
N.V. RAMANA, J.
In this appeal the unsuccessful defendant impugned
the judgment and decree passed by the High Court of Jharkhand
at Ranchi in second appeal in 273/2003 dt. 26/8/2004 whereby
the High Court has confirmed the concurrent findings of the
courts below by decreeing the suit.
2. A close scrutiny of the plaint is necessary for
adjudication of the dispute involved in the present appeal. The
plaintiff has filed title suit no. 5 of 1992 on the file of the Munsif
court at Seraikella. In the plaint after the cause title, he stated
1
NONREPORTABLE
that the suit is for declaration of title, confirmation of possession
and permanent injunction and the suit is valued at Rs. 20,000/.
Then the plaint starts with the description of facts that the suit
schedule property belongs to Raja Adithya Pratap Singh Deo of
the estate of Seraikella and subsequently it is purchased by
Kumar Subodh Singh by registered sale deed dated 24081990,
he in turn sold the suit schedule property to the plaintiff by way
of registered sale deed dt 21101990
for a consideration of Rs.
20,000/and
ever since than he has been in possession of the
property by constructing a residential building. The defendant
has sent notice dated 04011992
asking the plaintiff to quit and
deliver vacant possession of the suit land and for payment of
amount and further threatened the plaintiff to dispossess him
from the land. Hence he came up with the present suit seeking
the relief of permanent injunction restraining the defendants
from interfering with the peaceful possession and enjoyment of
the plaintiff.
3. The defendant has filed the written statement alleging
that the suit is barred under the principles of waiver, estopple,
acquisition, under Section 38 of Specific Relief Act and on the
2
ground of not impleading the proper and necessary parties to the
suit, and also on the ground of not issuing the notice under
Section 62 and 92 of the BSHB Act. Further it was stated that
the mere suit for perpetual injunction without claiming any relief
of declaration as to the entry in the record of right, declaration of
title and for confirmation of possession, is not at all maintainable
either in law or in facts. In fact, the plaintiff in the suit is
indirectly seeking the declaratory relief which is not permissible.
4. It is further averred in the written statement that the
plaintiff’s vendor has no right and title to the property as the
property is in possession of the defendant since 1965 and prior to
that it was in possession of the State of Bihar. The property was
acquired through land acquisition proceedings and possession
was delivered way back in 1965 and hence sought dismissal of
the suit.
5. We have gone through the judgment of the trial Court,
1st Appellate court and the High Court. The Courts below have
entertained the suit as if the suit is filed for declaration of title
which is evident from the judgments wherein they have
categorically observed that the Suit is for declaration of title,
3
confirmation of possession and also for perpetual injunction. The
trial Court has framed the issue with regard to the title and gave
a finding that plaintiff has proved his title and possession over
the suit land and constructed a house over the same, as there is
interference, he has come up with the present suit, as such he is
entitled to maintain the suit in the present form. The trial Court
has framed several issues and held all the issues in favour of the
plaintiff but only granted the relief of permanent injunction to the
plaintiff. The unsuccessful defendant approached the appellate
Court and the appeal was dismissed. In the second appeal, the
High Court also went ahead with the same assumption that it is
a declaratory suit and dismissed the appeal by observing that
both the Courts concurrently found that plaintiff has valid right,
title and interest.
6. We have heard the learned counsel on either side and
perused the material available on record. We are very much
surprised at the way the suit was dealt with by the Courts below
contrary to the pleadings and contrary to the settled legal
position. In the plaint, plaintiff has clearly averred that as the
defendants are interfering with his possession, the necessity
4
arose to file the suit for permanent injunction and particularly
sought the prayer for permanent injunction. The trial Court has
framed several issues and held all the issues in favour of the
plaintiff including the issue with regard to title but granted only
the relief of injunction. The trial Court has given several findings
with regard to the title and observed that plaintiff has got right
and title to the property. Even the 1st appellate Court has also
made specific observation with regard to title and gave a clear
finding that plaintiff has asked for declaration. High Court
mechanically confirmed the judgment and decree of the Courts
below without appreciating both the legal and factual aspects.
7. We have given our anxious consideration and we are of the
considered opinion that the Courts below misconstrued the
pleadings and went on a premise that the suit is for declaration
of title when the same is for bare injunction and in a way
declared the title of the plaintiff. Even before this Court plaintiff
filed the counter and stated that his suit is only for the relief of
injunction. The learned counsel has also submitted that the relief
sought is only for injunction. The copy of the plaint filed before
us also strengthens the same. The judgment and decree under
5
appeal deserves to be set aside and accordingly appeal is allowed.
It was brought to our notice that plaintiff is continuing with the
possession of the property during the pendency of the litigation.
In view of the same we deem it appropriate to direct the parties to
maintain status quo for a period of 3 months and if so advised, to
avail the remedy available under law. Resultantly, the appeal is
allowed with the above observations by setting aside the
judgment and decree dated 26th August, 2004, in the
circumstances without costs.
………………….……………………..J.
(N. V. RAMANA)
………………….……………………..J.
(MOHAN M. SHANTANAGOUDAR)
NEW DELHI,
OCTOBER 09, 2018.
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