Friday 10 September 2021

Whether Suit Simpliciter For Injunction Without Claiming Declaration Of Title is Maintainable If Plaintiff's Title Is Disputed?

  It will also be relevant to refer to the following

observations of this Court in the case of Jharkhand State

Housing Board v. Didar Singh and another (2019) 17 SCC 69:

“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 circum stances,

 plaintiff cannot maintain a suit for bare injunction.”

21. In the facts of the present case, it cannot be said

at this stage that the dispute raised by the defendant No.2

with regard to title is not genuine nor can it be said that the

title of the plaintiffappellant

over the suit property is free

from cloud. The issue with regard to title can be decided

only after the fullfledged

trial on the basis of the evidence

that would be led by the parties in support of their rival

claims.

NONREPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5577 OF 2021

 

T.V. RAMAKRISHNA REDDY Vs M. MALLAPPA & ANR.


AUTHOR: B.R. GAVAI, J.

1. Leave granted.

2. By the present appeal, the appellantplaintiff

challenges the judgment and order passed by the learned

single judge of the High Court of Karnataka at Bengaluru

dated 19.3.2020 in R.F.A. No. 123 of 2012 thereby allowing

the appeal filed by the respondent No.1 – M. Mallappa

(defendant No.2) herein.

3. The facts, in brief, giving rise to the present

appeal are as under:

The plaintiffappellant

before this Court filed a

suit for grant of perpetual injunction against the defendants

restraining them or anybody claiming through them from

interfering with the plaintiff’s peaceful possession and

enjoyment of the suit property.

It is the case of the plaintiffappellant

that he is

the absolute owner in possession of the suit schedule

property. His case is that he has purchased the suit

schedule property from one Shri K.P. Govinda Reddy

through registered sale deed dated 13.4.1992 and thereafter

he is in peaceful possession and enjoyment of the suit

property. According to him, he has constructed compound

wall of 8 ft. height with hallow bricks. His further case is

that he has constructed a house on the said plot and being

a civil contractor, is using the same for storing building

materials. It is his further case that he has taken loan by

depositing the title deed of the suit property. It is his

further case that since the defendants attempted to


demolish the compound wall and did not pay heed to the

plaintiff’s request, he was required to file a suit.

The claim of the plaintiffappellant

is resisted by

defendant No.1 (respondent No.2 herein) – The Bangalore

Development Authority (hereinafter referred to as ‘the BDA’)

by filing written statement. It is the defendant No.1’s case

that the suit was not maintainable for want of notice under

Section 64 of the Bangalore Development Authority Act,

1976. It is its further case that the khata issued in the

name of the plaintiffappellant

is only a revenue entry and

does not confer any right, title or interest upon the plaintiffappellant

over the suit property.

The defendant No.2M.

Mallappa (respondent

No.1 herein) also resisted the claim of the plaintiffappellant.

It is his case that he had purchased the suit

property through registered saledeed

dated 5.4.1984 from

one M. Shivalingaiah. It is his case that since the date of

purchase, he was in peaceful possession and enjoyment of

the suit schedule property. It is his further case that the

vendor of the plaintiffappellant

had no right, title and


interest to sell the suit schedule property in favour the

plaintiff. It is his case that entire Survey No.37

admeasuring 1 acre 29 guntas belonged to undivided family

of M. Shivalingaiah and upon partition, the entire land in

the said Survey number came to be allotted to the share of

M. Shivalingaiah. It is his case that M. Shivalingaiah had

sold plots in the said Survey number to different persons

and the suit property was sold to him. It is his further case

that he had made an application to B.D.A. for reconveyance

since the plot was under reconveyance scheme. It is his

case that compound wall was put up by him.

On the basis of the rival pleadings, the learned

trial judge framed the following issues:

“1. Does the plaintiff prove his lawful

possession of the suit property as on the

date of the suit?

2. Does he prove this alleged

interference by the defendants?

3. Is he entitled to a decree of

permanent injunction against

defendants?”


All the issues came to be answered in favour of

the plaintiffappellant

and the suit came to be decreed as

prayed for.

Being aggrieved thereby, defendant No.2 i.e.

respondent No.1 herein filed Regular First Appeal before the

High Court of Karnataka at Bengaluru.

The learned single judge of the Karnataka High

Court found that in the facts and circumstances of the case,

the suit simpliciter for permanent injunction without

seeking a declaration of title was not tenable and as such,

allowed the appeal and set aside the decree.

Being aggrieved thereby, the present appeal by

way of special leave.

4. We have heard Shri Ajit Bhasme, learned Senior

Counsel appearing on behalf of the plaintiffappellant,

Shri

Basava Prabhu S. Patil, learned Senior Counsel appearing

on behalf of respondent No.1 (defendant No.2) and Shri S.K.

Kulkarni, learned counsel appearing on behalf of the BDA.

5. Shri Ajit Bhasme, learned Senior Counsel

appearing on behalf of the plaintiffappellant

would submit

that the learned single judge of the Karnataka High Court

has grossly erred in interfering with the wellreasoned

judgment and order of the learned trial court. The learned

Senior Counsel would further submit that the learned trial

Court relying upon the voluminous documentary evidence

produced on record by the plaintiffappellant

has found the

appellant to be in peaceful possession and rightly decreed

the suit. Relying on the judgment and order of the learned

single judge of the Karnataka High Court dated 10.2.2000

in Writ Petition No.38853 of 1999, the learned Senior

Counsel submitted that possession of the plaintiffappellant

has been found to be lawful by the High Court and as such,

another learned single judge of the Karnataka High Court

has grossly erred in reversing the judgment and order of the

learned trial court decreeing the suit.

6. Shri Basava Prabhu S. Patil, learned Senior

Counsel appearing on behalf of the respondent No.1

(defendant No.2), on the contrary, would submit that the

learned single judge of the Karnataka High Court has rightly

held that the issue involved had to be first decided on the

basis of title and until the plaintiff’s claim for declaration of

title is decided, the suit simpliciter for permanent injunction

was not tenable.

7. Shri Basava Prabhu S. Patil, learned Senior

Counsel, would further submit that the saledeed

of the

defendant No.2 was dated 5.4.1984 whereas the saledeed

on which plaintiffappellant

claimed was dated 13.4.1992.

He therefore would submit that no interference is warranted

in the present appeal.

8. The short question that falls for consideration

before us is:

Whether the learned single judge of the High

Court was right in holding that the suit simpliciter for

permanent injunction without claiming declaration of title,

as filed by the plaintiff, was not maintainable?

9. The issue is no more res integra. The position

has been crystalised by this Court in the case of Anathula

Sudhakar v. P. Buchi Reddy (dead) by L.Rs. and others (2008) 4 SCC 594 in paragraph 21, which read thus:


“21. To summarise, the position in regard

to suits for prohibitory injunction relating to

immovable property, is as under:

(a) Where a cloud is raised over the

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

the 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

[Annaimuthu Thevar v. Alagammal,

(2005) 6 SCC 202] ). 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

straightforward, 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 the plaintiff to a more

comprehensive declaratory suit, depending

upon the facts of the case.”

10. It could thus be seen that this Court in

unequivocal terms has held that where the plaintiff’s title is

not in dispute or under a cloud, a suit for injunction could

be decided with reference to the finding on possession. It

has been clearly held that 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.

11. No doubt, this Court has held that 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 straightforward, the court

may decide upon the issue regarding title, even in a suit for

injunction. However, it has been held that such cases are

the exception to the normal rule that question of title will

not be decided in suits for injunction.

12. In this background, we will have to consider the

facts of the present case.

13. The plaintiffappellant

claims to be the owner of

the suit property on the basis of a saledeed

executed by

one K.P. Govinda Reddy in his favour on 13.4.1992. In

turn, according to him, the said property was sold by one

Smt. Varalakshmamma in favour of his vendor K.P. Govinda

Reddy on 26.3.1971. He claims that he had mortgaged the

suit property for taking loan from one financial institution.

He further claimed that an endorsement was also issued by

the Corporation of City of Bangalore that Khata regarding

the suit property is transferred to the appellant. According

to the plaintiffappellant,

when the Bangalore Mahanagar

Palike withdrew the Khata in his favour, he went to the High

Court and succeeded therein.

14. Per contra, the defendant No.2 (respondent No.1

herein) is specifically denying the title of the plaintiffappellant.

He claims to be the owner of the suit property on

the basis of a saledeed

dated 5.4.1984 from one M.

Shivalingaiah. He also claims to be in peaceful possession

and enjoyment of the same on the basis of the said saledeed.

It is his case that K.P. Govinda Reddy got the title set

up falsely and created fabricated documents with regard to

possession. It is also his case that compound wall was

constructed by him and not by the plaintiff, as claimed.

15. It could thus clearly be seen that this is not a

case where the plaintiffappellant

can be said to have a clear

title over the suit property or that there is no cloud on

plaintiffappellant’s

title over the suit property. The

question involved is one which requires adjudication after

the evidence is led and questions of fact and law are

decided.

16. In that view of the matter, we do not find any

reason to interfere with the judgment and order passed by

the Karnataka High Court.

17. Insofar as the reliance on the order passed by the

learned single judge of the Karnataka High Court dated

10.2.2000 in Writ Petition No.38853 of 1999 is concerned, it

will be relevant to refer to the following observations made

therein:

“3. It is evident from the plain reading

of the above that any entry made in the

Corporation Register by fraud,

misrepresentation or suppression of facts

or by furnishing false, incorrect and

incomplete material could be corrected

within a period of three years from the date

of such recording. The Order in the instant

case was passed admittedly much beyond

the period of limitation prescribed by the

provision extracted above. The same is

therefore unsustainable on that ground

itself. The parties being in litigation before

the Civil Court could upon adjudication of

the controversy regarding the title to the


property approach the Corporation for any

modification in the entry which is no more

any modification in the entry which is no

more than a fiscal entry relevant only for

purpose of payment of taxes and does not

by itself create or extinguish title to the

property in regard to which it is made. Till

such time the competent Court declared

the 3rd respondent as the true owner of the

property, the Corporation could not on its

own correct the entry after a period of 3

years stipulated under Sec. 114A

of the

Act.

4. This writ petition accordingly

succeeds and is hereby allowed. The

impugned order shall stand quashed

reserving liberty for the parties to have the

matter adjudicated upon by the Civil Court

and to approach the Corporation for a fresh

entry/modification of the existing entry to

bring the same in consonance with the

Civil Court’s determination. No costs.”

18. It could thus be clearly seen that the High Court

in the said order has clearly noted that the parties are in

litigation before the Civil Court and that adjudication of

controversy regarding the title of the suit property could be

done only by the Civil Court. The entry with the

Corporation is nothing more than a fiscal entry relevant

only for the purpose of payment of taxes and does not by

itself create or extinguish title to the property. The Court


observed that till such time the competent Court declared

the third respondent therein as the true owner of the

property, the Corporation could not on its own correct the

entry after a period of 3 years stipulated under Section 114A

of the Act. The High Court has therefore set aside the

order reserving liberty for the parties to have the matter

adjudicated upon by the Civil Court.

19. In that view of the matter, the said judgment and

order would be of no assistance to the case of the plaintiffappellant.

20. It will also be relevant to refer to the following

observations of this Court in the case of Jharkhand State

Housing Board v. Didar Singh and another (2019) 17 SCC 69:

“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 circum stances,

 plaintiff cannot maintain a suit for bare injunction.”

21. In the facts of the present case, it cannot be said

at this stage that the dispute raised by the defendant No.2

with regard to title is not genuine nor can it be said that the

title of the plaintiffappellant

over the suit property is free

from cloud. The issue with regard to title can be decided

only after the fullfledged

trial on the basis of the evidence

that would be led by the parties in support of their rival

claims.

22. In the result, the appeal is without merit and as

such, dismissed. There shall be no order as to costs.

…….…....................., J.

[L. NAGESWARA RAO]

…….…....................., J.

[B.R. GAVAI]

NEW DELHI;

SEPTEMBER 07, 2021


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