IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 27.09.2011 CORAM THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN S.A.No.1213 of 2011 and M.P.Nos. 1 and 2 of 2011 Balasubramanian .. Appellant/1st Respondent/ S/o. Late Nagarajan Plaintiff Vs. 1.K. Rajammal W/o. Late Krishnasamy Chettiar ..1st Respondent/ appellant/ 1st Defendant 2.K. Gopalakrishnan ..2nd Respondent/ 2nd Respondent S/o. Kunjuraman 2nd Defendant Prayer:- Second Appeal filed under Section 100 of Code of Civil Procedure against the judgment and decree dated 30.9.2009 made in A.S.No.23 of 2008 on the file of the Subordinate Judge's Court, Pollachi, dismissing the judgement and decree in O.S.No.575 of 2005, dated 22.1.2008 on the file of the District Munsif Court, Pollachi. For Appellant .. Mr.S. Satish Kumar for Mr. S. Satish Parasaran J U D G E M E N T The plaintiff in O.S.No.575 of 2005 on the file of the District Munsif Court, Pollachi, is the appellant. 2. The appellant/ plaintiff filed the suit in O.S.No.575 of 2005 for injunction restraining the respondents herein from interfering with his possession and enjoyment of the suit property stating that he purchased the suit property from the original owner Vijayalakshmi under a registered sale deed dated 27.11.1995 and he is in possession and enjoyment of the same and the respondents have no right over the suit property and they are attempting to interfere with his possession and therefore he filed the suit for injunction. 3. The 1st respondent filed the suit in O.S.No.543 of 2005 against the appellant herein and 2nd respondent in respect of the same property for injunction stating that she purchased the property https://hcservices.ecourts.gov.in/hcservices/ from the Power Agent of original owner Vijayalakshmi under a sale deed dated 23.8.1991 and her possession was disturbed by the appellant herein and therefore the appellant must be restrained by an order of injunction. 4. The trial Court heard both suits together and rendered a common Judgement and decreed the suit filed by the appellant and dismissed the suit filed by the 1st respondent. Aggrieved by the same the 1st respondent filed two appeals and both appeals were heard and a common Judgement was pronounced and the first appellant Court after relying upon the Hon'ble Supreme Court Judgement reported in 2009 (2) Law Weekly, page 546 wherein the Hon'ble Supreme Court has laid down the guide lines while granting injunction in the absence of any prayer for declaration and held that the finding regarding title cannot be recorded in a suit for injunction and when the title is disputed the plaintiff ought to have filed the suit for injunction and allowed the appeal filed by the 1st respondent herein against the Judgement and Decree in O.S.No.575 of 2005 filed by the appellant herein and set aside the Judgement and Decree made in O.S.No.575 of 2005 granting liberty to the appellant herein to file a fresh suit with prayer for declaration. The lower appellate Court also confirmed the Judgement and Decree in O.S.No.543 of 2005 filed by the 1st respondent herein and granting liberty to the 1st respondent herein to file a fresh suit for declaration. Hence, the Second Appeal. 5. The learned counsel for the appellant submitted that the lower appellate Court erred in allowing the appeal filed by the 1st respondent challenging the decree passed in O.S.No.575 of 2005 in favour of the appellant and the lower appellate Court having regard to the pleadings ought to have granted the decree confirming the order of the trial Court and ought to have held that the appellant is having valid title to the suit property and he is in possession and enjoyment of the same. He further submitted that the 1st respondent cannot claim any right or title to the suit property as admittedly the 1st respondent purchased the suit property from the original owner through Power Agent and the power was not a registered one and the Power Agent cannot execute the sale deed in the absence of any registration of the power. 6. I am unable to accept the contention of the learned counsel for the appellant. Admittedly, in respect of the same property both the appellant and the 1st respondent are claiming right and even after knowing that their title is in dispute and not accepted by the other party they chose to file the suit only for injunction without a prayer for declaration and before the trial Court also no issue was framed regarding the title of the suit property. The Hon'ble Supreme Court has laid down the guide lines to be followed in a suit for injunction the Judgement reported in 2008 (4) SCC 594 (Anathula Sudhakar v. P.Buchi Reddy) = 2009 (2) Law Weekly, 546 and they are as follows: https://hcservices.ecourts.gov.in/hcservices/ " To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under: (a) Where a cloud is rised 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. Whee 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 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 possesssion 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 https://hcservices.ecourts.gov.in/hcservices/ 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. " As per the guideline ©, in the absence of any necessary pleading and framing of issue regarding the title the Court cannot investigate or examining the title in a suit for injunction. Further, even where there are necessary pleadings and issue was also framed, if the matter involves complicated questions of fact and law relating to title, the Court will relegate the parties by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. In this case also the appellant questioned the title of the 1st respondent by contending that though the sale in favour of the 1st respondent was earlier in point of time the 1st respondent purchased the property through a Power Agent whose power was not registered and therefore the 1st respondent will not get any right to the property. The appellant admittedly purchased the property in the year 1995 and the 1st respondent purchased the property in the year 1991 and having regard to the question of title whether the purchase by the 1st respondent from the real owner through unregistered power is valid or not is a complicated question to be decided separately and considering that the lower appellate Court has rightly dismissed the suit filed by the appellant by granting liberty to the appellant to file a fresh suit with prayer for declaration. Hence, I do not find any reason to interfere with the Judgement and Decree of the lower appellate Court and no substantial question of law arises for consideration in the Second Appeal and the Second Appeal is dismissed. 7. In the result, the Judgement and Decree of the lower appellate Court are confirmed and the Second Appeal is dismissed. Consequently, the connected Miscellaneous Petitions are closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. kr To 1.The Subordinate Judge, Subordinate Court, Pollachi. https://hcservices.ecourts.gov.in/hcservices/ 2. The District Munsif, District Munsif Court, Pollachi. 1 cc to M/s. Satish Parasaran, Advocate, Sr. 60578 S.A.No.1213 of 2011 and M.P.Nos. 1 and 2 of 2011 TAM (CO) kk 10/11 https://hcservices.ecourts.gov.in/hcservices/