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TMI Blog2008 (3) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... en they were digging trenches in order to commence construction, the defendant interfered with the said work. The plaintiffs, therefore, filed suit OS No.279 of 1978 in the file of Principal District Munsiff, Warangal, for a permanent injunction to restrain the defendant from interfering with their possession. 3. Defendant resisted the suit. He claimed that suit property measuring 300 sq. yards in Premises No. 13/776 was purchased by him from K. V. Damodar Rao (brother of plaintiffs' vendor Rukminibai) under registered sale deed dated 7.11.1977 (Ex.B1); that he was put in possession of the suit property by Damodar Rao; that the suit property had been transferred to his name in the municipal records; that he applied for and obtained sanction of a plan for construction of a building thereon; and that he had also obtained a loan for such construction from the Central Government by mortgaging the said property. According to him, when he commenced construction in the suit property, the plaintiffs tried to interfere with his possession and filed a false suit claiming to be in possession. 4. The trial court framed the following issues - (i) whether the plaintiffs are in exclusive po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the main building by a dividing wall) to his sister Rukminibai in the year 1961, by way of 'Pasupu Kumkumam' (a gift made to a daughter or sister, conferring absolute title, out of love and affection, with a view to provide for her); that Rukminibai sold three portions of the gifted site to PW3, plaintiff No.1, plaintiff No.2 in the year 1968 and they were in possession ever since 1968; and that an agreement of sale was also entered in regard to another portion with PW5 as per Ex.X2. On the other hand, defendant led evidence denying that the suit property was given to Rukminibai by way of 'Pasupu Kumkumam'. His vendor Damodar Rao gave evidence that he was the owner of the suit property and he sold it to the defendant under deed dated 7.11.1977 and put him in possession thereof. While plaintiffs alleged that plots were mutated in their names after their purchase, defendant alleged that the suit property purchased by him was a part of plot No.13/776 which stood in the name of Damodar Rao in the municipal records. Neither party produced the order of mutation or any certificate from the municipal authorities, certifying or showing mutation to their names. They only prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the two sites, on behalf of his sister Rukminibai, representing that his sister was the owner thereof and attested the sale deeds executed by his sister Rukminibai in favour of plaintiffs as a witness and identified her as the executant of the sale deeds before the Sub-Registrar. Those acts of Damodar Rao supported the claim of Rukminibai that there was a oral gift. Alternatively, even if there was no gift in favour of Rukminibai, and Damodar Rao was the owner, the aforesaid acts of Damodar Rao showed that with his implied consent, Rukminibai represented to be the ostensible owner of the suit property and transferred the same to plaintiffs for consideration. This attracted the provision of section 41 of Transfer of Property Act, 1882 and therefore the transfers in favour of plaintiffs was not voidable at the instance of Damodar Rao or his successor in interest on the ground that Rukminibai was not the owner of the suit property. The High Court consequently held that plaintiffs had established their title in regard to the two vacant sites purchased by them and drew an inference that possession was presumed to be with them by applying the principle of possession follows title. The H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odar Rao under an oral gift, to prove the said claim. 10. On the contentions urged, the following questions arise for our consideration in this appeal: (i) What is the scope of a suit for prohibitory injunction relating to immovable property? (ii) Whether on the facts, plaintiffs ought to have filed a suit for declaration of title and injunction ? (iii) Whether the High Court, in a second appeal under section 100 CPC, examine the factual question of title which was not the subject matter of any issue and based on a finding thereon, reverse the decision of the first appellate court? (iv) What is the appropriate decision? Re : Question (i) : 11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title. 13. 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. 14. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hana Amma vs. Narayanan Nair 1994 (2) SCC 14, this Court observed that a finding as to title given in an earlier injunction suit, can operate as res judicata in a subsequent suit for declaration of title. This was on the premises that in some suits for injunction where a finding on possession solely depended upon a finding on the issue of title, it could be said that the issue of title directly and substantially arose for consideration; and when the same issue regarding title is put in issue, in a subsequent title suit between the parties, the decision in the earlier suit for injunction may operate as res judicata. This Court observed : "Shri Sukumaran further contended that the remedy of injunction is an equitable relief and in equity, the doctrine of res judicata cannot be extended to a decree of a court of limited pecuniary jurisdiction. We find no force in the contention. It is settled law that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n relating to res judicata, but a question whether a finding regarding title could be recorded in a suit for injunction simpliciter, in the absence of pleadings and issue relating to title. 17. 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derabad. Therefore, as on the date of sales in favour of the plaintiffs 9.12.1968, Rukminibai had neither any title deed nor actual possession. Nor was the property mutated in her name in the municipal records. The tax paid receipts produced by the plaintiffs related to a period subsequent to the execution of the sale deeds by Rukminibai in their favour and subsequent to the sale by Damodar Rao in favour of defendant. On the other hand, the suit property was sold in favour of the defendant by Damodar Rao who was shown as registered owner in the municipal records and who even according to the plaintiffs was the original owner of the property. 19. The first appellate court found that the evidence of plaintiffs and their witnesses as to the title of plaintiffs' vendor Rukminibai was sketchy and inconsistent. It referred to three versions as to how Rukminibai got the property. The first version (as per PW1) was that the suit property belonged to Rukminibai's father and he had given it to his daughter Rukminibai by way of 'Pasupu Kumkumam'. The second version (as per PW2) was that after the death of Rukminibai's father, there was an oral partition between K. V. Damo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the sale deeds. Whether Rukminibai's evidence and other plaintiffs' witnesses should be believed or whether evidence of Damodar Rao should be believed on the question of title, can be examined only when there are necessary pleadings and an issue regarding title. Further, where title of plaintiffs is disputed and claim for possession is purely based on title, and the plaintiffs have to rely on various principles of law relating to ostensible ownership and section 41 of TP Act, validity of a oral gift by way of 'pasupu kumkum' under Hindu Law, estoppel and acquiescence, to put forth a case of title, such complicated questions could properly be examined only in a title suit, that is a suit for declaration and consequential reliefs, and not in a suit for an injunction simpliciter. Re : Questions (iii) and (iv) 22. The High Court formulated the following as substantial questions of law: "(i) Whether the plaintiffs' suit for permanent injunction without seeking declaration of title is maintainable under law? (ii) Whether the acts and deeds of Damodar Rao (DW-2) made the plaintiffs to believe that Rukminibai is the ostensible owner of the suit proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... validity. Consequently there was no opportunity to the defendant to deny the oral gift in his written statement. There was no issue on this aspect also. Therefore, this question, which could not have been considered in the suit, could not also have been considered in the second appeal. 25. The High Court, in the absence of pleadings and issues, formulated in a second appeal arising from a suit for bare injunction, questions of law unrelated to the pleadings and issues, presumably because some evidence was led and some arguments were advanced on those aspects. The only averment in the plaint that plaintiffs were the owners of the suit property having purchased the same under sale deeds dated 9.12.1968, did not enable the court, much less a High Court in second appeal, to hold a roving enquiry into an oral gift and its validity or validation of ostensible title under section 41 of TP Act. No amount of evidence or arguments can be looked into or considered in the absence of pleadings and issues, is a proposition that is too well settled. 26. The High Court while reversing the decision of the first appellate court, examined various aspects relating to title and recorded findings rela ..... X X X X Extracts X X X X X X X X Extracts X X X X
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