33sa386.08.odt 1 . IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Second Appeal No.386 of 2008 (Nagrik Gruha Nirman Sahakari Sanstha vs. Smt. Sitabai wd/o. Kamaji Kaphanichor and Ors. ) Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Coram: R. K. Deshpande, J. Date : March 03, 2010. Heard Mr. Rohit Joshi, Adv. for the appellant. Appellant is a society which had filed Regular Civil Suit No.359 of 2000 simplicitor for grant of injunction restraining defendants from disturbing the possession of the appellant/plaintiff Society over the suit property, which is open land bearing New Survey Nos. 83, 89, 90, 92 and 40, (Old S.Nos. 25/1-2, 26/1-2, 52/1- 2, 30) total area 267093.15 sq. meters, out of which, retainable area is worked out to 148962.41 sq. meters situated at mouza Dhawlameti, Tq. and Distt. Nagpur. The suit was dismissed by the learned 6th Joint Civil Judge (Jr.Dn.), Nagpur by his judgment and order dt. 29.04.2006. Being aggrieved by dismissal of the suit, the appellant/plaintiff preferred Regular Civil Appeal No. 251 of 2006 which has also been dismissed by the learned District Judge-9, Nagpur by judgment and order dt. 12.9.2008. The plaintiffs alleged that they are owners of Survey Nos. 90 and 92 having purchased it from respondent nos. 1 to 10 by registered Sale deed dt. 4.5.1987. The plaintiffs also claimed that they are in possession of the suit property in terms of recitals of the 33sa386.08.odt 2 . said sale deed and therefore, claimed an injunction restraining the respondents/defendants from disturbing their possession over the suit property. The defendants raised dispute regarding possession of plaintiffs over the suit property as also regarding title of the plaintiffs over the suit property. The trial Court held that the suit was maintainable. However, in respect of possession, it has recorded a finding that the plaintiffs have failed to prove that they are in possession of the suit property. The Appellate Court has also confirmed the finding recorded by the trial Court that the plaintiffs have failed to prove their possession over the suit property. While recording the finding in respect of possession of the suit property, the Courts below have also gone into the issue regarding title over the suit property and the trial Court recorded a finding that the plaintiffs had failed to establish payment of part of consideration of sale deed. The Appellate Court has further recorded a finding that there exists a serious dispute and controversy about title of the plaintiffs and sale deeds produced on record and same cannot, therefore, be gone into in the suit filed by the plaintiffs simplicitor for possession. Mr. Joshi, Adv. for the appellants has urged that sufficient evidence has been placed on record in the form of Exhs.179 and 180 which are registered sale deeds containing recitals about possession of the suit property being delivered to the plaintiffs, Exh.340 is the letter written by NIT to Amit Gadkari and also the account statement Exhs.245 and 246. The learned Counsel has relied upon decision of the Apex Court reported in 2008 (4) SCC 594, Anathula Sudhakar .vs. P. Buchi Reddy (Dead) by LRS. and Ors. in support of his contention that, in respect of the property which is an open land, the principle is that the possession 33sa386.08.odt 3 . follows the title. He relied upon para 16 of the said decision, which is reproduced below : “16. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de-jure possession. In such a situation, where the title is clear and simple, the Court may venture a decision on the issue of title, so as to decide the question of de-jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs. With the assistance of the learned Counsel appearing for the parties, I have gone through the record and judgments delivered by the Courts below. So far as the question of possession of the suit property is concerned, the Courts below have recorded a finding of fact that the plaintiffs have failed to establish their possession over the suit property. While recording such finding the documents relied upon by the learned Counsel for the appellant as also decision of the Apex Court has been taken into consideration. At any rate, a possible view has been taken by the Courts below 33sa386.08.odt 4 . which does not call for any interference and no substantial question of law arises out of it. So far as the issue regarding title of the plaintiffs is concerned, naturally the Courts below have gone into it and on prima facie assessment of the evidence, recorded finding against the plaintiffs. The Appellate Court has recorded a finding that the plaintiffs have filed suit simplicitor for possession of the property and no relief regarding declaration of ownership and title has been claimed. It has further recorded a finding that serious disputes and controversies exist about title of plaintiffs in respect of the suit property. The Apex Court in the decision (cited supra) has held that where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs. In view of this, no substantial question of law arises out of the findings recorded by the Courts below in respect of possession of the plaintiffs. In the result, there is no substance in this Second Appeal. Hence, the same is dismissed. However, it is made clear that it shall be open for the parties to institute the proceedings for claiming ownership of the property along with consequential benefits and none of the observations made by the Courts below, regarding ownership of suit property, shall come in the way of the parties in the proceedings, if any are instituted. JUDGE jais 33sa386.08.odt 5 .