: 1 : sa.607.2011 vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.607 OF 2011 Ramu Subhana Kharade & Ors. .. Appellants V/s. Bapu Appa kadam & Ors. .. Respondents Mr.P.D. Dalvi for the Appellants Mr.Drupad S. Patil for the Respondent Nos.1A, 1B, 3 CORAM: SMT.NISHITA MHATRE, J. DATED: DECEMBER 20, 2011 P.C.: 1. The Second Appeal is directed against the concurrent findings of fact recorded by both the trial Court and the appellate Court to the effect that the respondents are in possession of the suit property and are therefore entitled to an injunction restraining the appellants from disturbing their possession. Mr.Dalvi, appearing for the appellants, submits that the suit is not maintainable as it has been filed simpliciter for an injunction without seeking any declaration. He relies on the judgment of the Supreme Court in the case of Anathula Sudhakar vs. P. Buchi Reddy (dead) by LRs. & Ors., (2008) 4 SCC 594 in support of his submission. According to him, since the defendants i.e. the appellants herein had disputed the plaintiffs' possession over the suit property, : 2 : sa.607.2011 based on the consolidation scheme and the mutation entries recorded it would indicate that there was a cloud over the plaintiffs' title to the property. He therefore submits that in such a case the plaintiffs ought to have sought a declaration. 2. The suit has been filed for a declaration of the plaintiffs' title and possession over the suit property and consequently an injunction against the defendants. In the written statement, except a bare denial of the contents of the plaint, the defendants have not specifically denied the plaintiffs' possession of the suit property or their title to the same. In fact, the defendants have pleaded that both they and the plaintiffs have half a share each in the suit property. In the case of Anathula Sudhakar vs. P. Buchi Reddy (dead) by LRs. & Ors. (supra) the Supreme court has laid down certain principles for dealing with suits for prohibitory injunctions relating to immovable properties as under: 21. 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. : 3 : sa.607.2011 (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). 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 straight-forward, 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 plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. 3. The aforesaid enunciation of law indicates that where there is a mere interference with the plaintiffs' lawful possession, it is sufficient to : 4 : sa.607.2011 issue an injunction simpliciter. In such a suit, the prayer for an injunction is to be considered with reference to the possession and normally the issue of the title would not be directly and substantially in issue. In the present case, since the plaintiffs' possession over the suit property has not been specifically denied, both the Courts have concurrently found that the plaintiffs i.e. the respondents herein, are in possession of the suit property. The trial Court has, therefore, granted the injunction sought and the decree has been confirmed by the appellate Court. 4. The orders do not call for any interference as there is no substantial question of law involved. 5. Appeal dismissed. 6. In view of the dismissal of the Appeal, civil application No.1460 of 2011 does not survive and the same is dismissed accordingly. (SMT.NISHITA MHATRE, J.)