IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 29.11.2017 PRONOUNCED ON : 05.01.2018 CORAM THE HONOURABLE MR. JUSTICE T.RAVINDRAN S. A.No.1794 of 2001 R.Padmanabhan ... Appellant/Defendant Vs. K.Shanmugam ... Respondent/Plaintiff Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 29.4.1999 rendered in A.S.No.201 of 1997, on the file of the First Additional District Court, Coimbatore, confirming the decree and judgment dated 23.12.1996 rendered in O.S.No.2004 of 1991, on the file of the Third Additional District Munsif, Coimbatore. For Appellant : Mr.S.Subbiah, Senior Counsel for M/s. D.Sathyasri For Respondent : Mr.T.M.Naveen for M/s. D.Kamatchi JUDGMENT Challenge in this second appeal is made to the judgment and decree dated 29.4.1999 passed in A.S.No.201 of 1997, on the file of the First Additional District Court, Coimbatore, confirming the judgment and decree dated 23.12.1996 passed in O.S.No.2004 of 1991, on the file of the Third Additional District Munsif Court, Coimbatore. 2. Parties are referred to as per their rankings in the trial Court. 3. Suit for permanent injunction. 4. The case of the plaintiff, in brief, is that the suit property was purchased by the plaintiff under a registered sale deed dated 5.12.1990, from one Subbakkal through her power agent Kamalam and thereby, the plaintiff has been enjoying the suit property by keeping the same in his possession and enjoyment and the suit property was originally owned by late Ammasai gounder and after his demise, the property left by him were divided amongst his three sons namely Karuppa gounder, Nanjappa gounder and Krishna gounder, by way of a registered partition deed dated 3.9.1932 and by way of the above said partition deed, the suit property was allotted to the share of Karuppa gounder and Karuppa gounder took possession of the suit property and enjoying the same and after his demise, his property including the suit property were inherited by his only daughter K.Subbakkal and she was in possession and enjoyment of the same and thereafter, K.Subbakkal conveyed the suit property under the sale deed dated 5.12.1990. After the plaintiff became the owner of the suit property, he has taken steps to transfer the patta on his name and accordingly, patta had been transferred in his name, in respect of the suit property and on the steps taken by his predecessor in interest, a separate patta was granted in respect of the suit property in favour of K.Subbakkal and the defendant is a total stranger to the suit property and attempted to interfere with the possession and enjoyment of the plaintiff in respect of the suit property, without having any right or interest over the suit property and though the defendant did have any better title than the title of the plaintiff, he along with his henchmen attempted to interfere with the enjoyment of the suit property by the plaintiff and hence the suit for appropriate reliefs. 5. The case of the defendant, in brief, is that the suit is not maintainable either in law or on facts. It is false to state that the suit property belongs to the plaintiff absolutely and it is false to state that K.Subbakkal was the owner of the suit property and on the other hand, K.Subbakkal was not the owner of the suit property and never been in possession and enjoyment of the suit property at any point of time and she did not execute power of attorney in favour Kamalam and K.Subbakkal could not pass on a valid title of the suit property in favour of the plaintiff and in this connection, the defendant had filed a suit in O.S.No. 1099 of 1991 against K.Subbakkal, Kamalam and Nanjappa gounder and it is false to state that the suit property originally belonged to Ammasai gounder and after his demise, the properties of Ammasai gounder were partitioned amongst his three sons and in the partition, the suit property was allotted to the share of Karuppa gounder and it is false to state that Karuppa gounder was in possession and enjoyment of the suit property, by way of alleged partition deed and it is false to state that the only daughter K.Subbakkal inherited the suit property from Karuppa gounder and enjoying the same and the plaintiff cannot claim any valid title to the suit property by his alleged purchase of the same, from K.Subbakkal, who herself has no title to the suit property. It is false to state that the plaintiff, after his purchase, had obtained patta of the suit property and it is false to state that his vendors had also obtained patta in respect of the suit property. The defendant is the sole owner of the suit property and in actual possession and enjoyment of the same and hence, the case of the plaintiff that the defendant attempted to interfere with the plaintiff's possession and enjoyment of the suit property is not true. The defendant purchased the suit property on 07.12.1975 from Ganesa gounder and Palaniswamy, both are sons of Rayappa gounder and the defendant had deposited the original document in respect of the suit property with Ramaswamy for obtaining loan and after the purchase, the defendant levelled the land and submitted a proposal for forming a lay out in the suit property and accordingly, Panchayat officials inspected the suit property and examined the land and recommended the proposal for the lay out scheme and all the above factors would go to show that the defendant is in possession and enjoyment of the suit property. Patta had also been granted in favour of the defendant in respect of the suit property and after getting the patta by unfair means, the plaintiff attempted to trespass into the suit property illegally and hence, the plaintiff has no title to the suit property and hence, the suit laid by the plaintiff for permanent injunction has no basis and liable to be dismissed as devoid of cause of action. 6. In support of the plaintiff's case PW1 was examined, Exs.A1 to A22 were marked. On the side of Defendant, DW1 was examined and Exs.B1 to B20 were marked. 7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the Courts below were pleased to accept the plaintiff's case and decree the suit in favour of the plaintiff as prayed for. Challenging the same, the second appeal has been laid. 8. At the time of admission of the second appeal, the following substantial questions of law were formulated for consideration: 1. When the plaintiff himself had admitted in evidence that the defendant alone was in the possession of the suit property had not the Courts below committed an act of illegality, in decreeing the suit merely for permanent injunction? 2. When the question of title cannot be an issue in a suit for permanent injunction and when the trial Court itself had not framed such an issue is not the lower appellate Court exceeded its power in framing a point for determination under order XLI Rule 31 of CPC relating to the title of the respondent over the suit property? 3. Whether in the suit for permanent injunction based upon the possession of the plaintiff over the suit property, can the lower appellate Court declare the title of the appellant over it, even without the payment of the Court fee based upon the marked value under Section 25 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955? 9. The suit has been laid for the relief of permanent injunction. For seeking the above said relief, the plaintiff has putforth a case that the suit property originally belonged to Ammasai gounder and after his demise, his three sons divided the property of Ammasai gounder, including the suit property by way of a registered partition deed dated 3.9.1932 and in the said partition, the suit property was allotted to the share of Karuppa gounder and following the same, it is only Karuppa gounder, who had been in possession and enjoyment of the suit property as absolute owner and after his death, the suit property was inherited by his only daughter K.Subbakkal and deriving absolute title and enjoying the same by keeping in her possession through the power agent Kamalam, her daughter and sold the suit property in favour of the plaintiff by way of a registered deed dated 5.12.90 and thereby, it is the case of the plaintiff that he has acquired a valid title to the suit property and been in possession and enjoyment of the same, by obtaining patta etc., and according to the plaintiff, inasmuch as the defendant without any authority attempted to interfere with his possession and enjoyment of the suit property, he has been necessitated to lay the suit for appropriate reliefs. 10. The plaintiff's case is stoutly resisted by the defendant contending that it is false to state that the suit property originally belong to Ammasai gounder and it is false to state that after his death, the suit property and other property of Ammasai gounder were partitioned amongst his three sons and in the said partition, the suit property was allotted to Karuppa gounder and it is false to state that Karuppa gounder acquired a valid title to the suit property and enjoying the same, by keeping in his possession and it is false to state that K.Subbakkal was the daughter of Karuppa gounder and false to state that Subbakkal inherited the suit property on the demise of Karuppa gounder and it is false to state that Subbakkal had acquired a valid title to the suit property and been in possession and enjoyment of the same by obtaining patta etc., and it is false to state that Subbakkal had conveyed the suit property in favour of the plaintiff, by way of a registered sale deed dated 5.12.1990, as putforth by the plaintiff and it is false to state that the plaintiff acquired a perfect and valid title to the suit property and also obtained patta thereto and it is thus pleaded by the defendant that the plaintiff has no valid title to the suit property and never been in possession and enjoyment of the suit property at any point of time and hence, the suit is liable to be dismissed. On the other hand, the defendant has set up a rival title to the suit property by claiming that he had acquired the suit property by way of a registered sale dated 07.12.1975, from Ganesa gounder and Palaniswamy, both are sons of Rayappa gounder and accordingly, enjoying the suit property and thereafter, obtained lay out approval in respect of the suit property from the officials concerned and also secured patta in respect of the suit property and therefore, it is contended that it is only the defendant, who has a valid title to the suit property and enjoying the same by retaining in his possession and also pleaded that the plaintiff under the guise of the false patta, attempted to interfere with his possession and enjoyment and hence, the suit is liable to be dismissed. Thus, from the nature of the pleadings set out by the plaintiff as well as the defendant particularly the pleadings set out by the defendant in the written statement, it is found that the defendant has stoutly resisted the plaintiff's claim of title to the suit property and also his claim of being in possession and enjoyment of the suit property as a valid title owner. In fact, a reading of the plaint averments as a whole, would go to show that the plaintiff denies the defendant's claim of title to the suit property and also contended that the defendant is not having a better title to the suit property than his claim of title, hence he cannot be allowed to interfere with his possession and enjoyment of the suit property as such and accordingly, prayed for relief of permanent injunction against the defendant. 11. In the light of the above position, it is found that when the parties to the lis fight with each other vis-a-vis, the claim of title to the suit property, tooth and nail and when both parties claim to be in possession and enjoyment of the suit property only on the basis of the title and when the parties have putforth pleas that their claim of title to the suit property is better than the claim of title to the suit property put forth by rival party, it is seen that the plaintiff having come forward with the suit, in the face of the above said pleas put forth by the defendant, in the written statement, strongly disputing the title of the plaintiff in the suit property and also disputing his possession and enjoyment of the suit property, as rightly putforth by the defendant's counsel, the plaintiff should have accordingly sought for the relief of declaration in respect of the suit property as such. Further, it is found that the above said resistance has been putforth by the defendant constantly with regard to the claim of the suit property by the plaintiff in all aspects, right from the inception i.e., from the days of his alleged predecessor in title to the suit property, and in such view of the matter, the plaintiff should have sought for the relief of declaration in respect of the suit property. 12. In this connection, strong reliance is placed upon the decision of the Supreme Court by the defendant's counsel reported in (2008) 4 SCC 594 (Anathula sudhakar Vs.P.Buchi Reddy (dead) By Lrs. And others). A perusal of the above said decision would go to show that where a cloud is raised over the plaintiff's title and the plaintiff claims to be in possession of the suit property only on the basis of the said title, a suit for declaration with or without a consequential relief is the remedy available to the plaintiff and in cases where de-jure possession has to be established on the basis of the title to the suit property as in the case of vacant site, the issue of title may directly or substantially arise for consideration as without a finding thereon, it will not be possible to decide the issue of possession, ie., where the plaintiff claims to be in possession but his title to the property is in dispute or under a cloud or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant as in this case, the plaintiff will have to go for declaration of title and consequential injunction and when the title of plaintiff is in cloud or in dispute and he does not have possession or not able to establish the possession, necessarily, the plaintiff will have to file a suit for declaration and possession with or without consequential injunction. Thus, it is found that a prayer for declaration is necessary, if there is denial of title by the defendant or the defendant challenges the plaintiff's title to the property concerned and in such circumstances, the action for declaration is the remedy to remove the cloud on the title of the suit property in issue. 13. That apart, as above seen when even as per the plaint averments read as a whole, the apprehension entertained on the part of the plaintiff is that the defendant, on the basis of claiming title to the suit property, has attempted to interfere with his possession and enjoyment in respect of the same and when it is further pleaded that the defendant cannot have any better title to the suit property than that of the plaintiff and in addition to that, when the defendant has averred in his written pleading that the plaintiff has no title to the suit property and not in lawful possession and enjoyment of the suit property by having a valid title and it is only the defendant, who has acquired a valid title to the suit property by a particular mode and in enjoyment of the suit property as such, considering the above pleadings projected by the respective parties, it is seen that a reading of the plaint as a whole, in the context of the relief claimed thereunder would go to show that the issue of title is not wholly foreign to the controversy and it is relevant to determine while considering the grant of permanent injunction. Thus, this case could also be covered under the decision of the Apex Court in 2017-5-LW.490 Velayudhan & others Vs. Mohammedkutty & ors. In the light of the above decision, it is found that the plaintiff should have made all the endeavours to seek the relief of declaration in respect of the suit property and despite the above resistance putforth to his case by the defendant, still the plaintiff had not chosen to amend the plaint for including the relief of declaration in respect of the suit property and therefore, it is seen that the plaintiff has himself placed in a predicament by not asking for the appropriate relief of declaration as regards the suit property and therefore has to suffer the consequences thereto. 14. However, it is argued by the plaintiff's counsel that in a suit for permanent injunction simpliciter even the question of title could be gone into incidentally and therefore, it is contended that the plaintiff's omission to seek the relief of declaration is not fatal to his case as such and in this connection, reliance is placed upon the decisions reported in 2012 (1) MWN (Civil) 835 (Parvathi and 4 others Vs. K.K.Bellan), 1997 (1) CTC 407 (Yadhavan and another Vs.Md.Dayanudin and 2 others) and 2001 (3) CTC 393 (Murugaiyan and 2 others Vs. Subbaiyan). Based on the above said authorities, it is contended that the Courts below had rightly gone into the question of title also incidentally to determine whether the plaintiff is entitled to obtain the relief of permanent injunction as prayed for and therefore, inasmuch as the defendant has failed to establish a valid title to the suit property and on the other hand, the plaintiff has established a valid title to the suit property, it is contended that the plaintiff's suit cannot be rejected on the footing that the plaintiff has not sought for the relief of declaration as such. 15. In so far as the facts and circumstances of the case at hand, as above mentioned, strong resistance had been putforth by the defendant in his written plea, disputing the claim of title of the plaintiff to the suit property and not only that, the defendant has also disputed the claim of title of the plaintiff predecessor in interest to the suit property. That apart, the defendant has also disputed the claim of possession and enjoyment of the suit property by the plaintiff by acquiring a valid title to the same. Such being the position, in my considered opinion, following the decision of the Apex Court relied upon by the defendant's counsel, it is seen that the plaintiff should have made all the necessary endeavours to amend the plaint and seek the relief of declaration. The above said course has not been adhered to by the plaintiff. 16. No doubt, in a incidental manner, the claim of title could be gone into in a suit for permanent injunction. But in a suit for permanent injunction, as in the present case, considering the rival contentions putforth by the respective parties on the question of title, it is found that necessarily the question of title alone assumes significance for determining whether the plaintiff or the defendant is in lawful possession and enjoyment of the suit property. Inasmuch as the parties vie with each other claiming to be in possession and enjoyment of the suit property based on a title, as putforth by them respectively, in the light of the above position, it is found that without determining the question of title of the suit property as claimed by the respective parties, it is seen that the lawful possession of the same cannot be determined as such. The Courts below also had been made aware of the above said position and while considering the issues involved in the suit, as rightly contented by the defendant's counsel, have extensively gone into the title of the suit property as putforth by the respective parties and disposed of the present lis as a suit for title and not as a suit simpliciter for permanent injunction. It is thus found that the Courts below have not decided the question of title as an incidental matter to determine the relief of injunction in the suit. On the other hand, they had gone into in an extensive manner into the claim of title to the suit property as putforth by the respective parties. Thus, as rightly putforth by the defendant's counsel, this has seriously prejudiced the case of the defendant as such and that apart, it is found that when the Courts below find that the question of title centres around the respective pleadings of the parties concerned, should have directed the plaintiff to amend the plaint for including the relief of declaration also before going into the question of title in extenso as putforth by the respective parties. However, neither of the Courts below had directed the plaintiff to seek for the relief of declaration nor the plaintiff himself has endeavoured to amend the plaint for including the relief of declaration in the suit. Thus, it is found that, in the light of the decision of the Apex Court above referred to, on the failure of the plaintiff to include the relief of declaration in the suit, has to suffer on the said ground alone in the light of the facts and circumstances of the present case. 17. That apart, it is seen that the approach by the Courts below in determining the lis is found to be totally perverse and erroneous and on the above ground also, the judgment and decree of the Courts below have to be set-aside. It is found that though the issue is as to whether the plaintiff is entitled to the relief of permanent injunction as prayed for, for determining the issue as regards the title as putforth by the respective parties, on a reading of the judgment and decree of the trial Court, it is found that the trial Court has gone into the question of title in detail and accordingly, proceeded with the suit, as if, it is suit for title and thus, it is found that while ending up with the discussions, the trial Court has held that inasmuch the defendant has failed to establish his side of the case beyond all doubt, accordingly, concluded that the plaintiff is entitled to claim the relief of permanent injunction as prayed for and it is seen that the trial Court has approached the issue placing the burden of proof entirely on the shoulder of the defendant and accordingly, concluded the judgment by holding that inasmuch the defendant has failed to establish his case beyond all doubt, upheld the plaintiff's case and granted the plaintiff, the relief of permanent injunction as prayed for. Thus, it is seen that the very approach of the issues involved in the matter by the trial Court is found be to erroneous and unsustainable in the eyes of law. That apart, the first appellate Court has gone one step ahead and while framing the points for determination, the first appellate Court has framed the first point as to whether the appellant/defendant is in possession and enjoyment of the suit property based on the title to the suit property as claimed in the written statement. Thus, it is found that the first appellate Court has framed the first point for determination throwing the entire burden upon the defendant to establish as to whether he has title to the suit property as putforth by him and whether he is in possession and enjoyment of the