1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Civil Revision Application No.108 of 2010 (Smt. Kasabai wd/o Narayanrao Patil and others v. Vishnu s/o Narayanrao Patil and others) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri S.P. Kshirsagar, Advocate for Applicants. Shri C.A. Joshi, Advocate for Respondent No.2. Coram : R.K. Deshpande, J. Dated : 2 nd February, 2011 1. This Civil Revision Application challenges the order dated 26-8-2010 passed by the learned Civil Judge, Senior Division, Washim, rejecting the application Exhibit 80 filed by the applicants/plaintiffs. The application Exhibit 80 was filed under Order 7 Rule 11(d) of the Civil Procedure Code for rejection of the counter-claim filed by the defendant No.2. In the counter-claim, the prayer was made for grant of permanent injunction as under : “(A) Pass a decree of permanent injunction in favour 2 of the defendant no.2 and against the plaintiffs restraining them, their agents, servants or any other person on behalf of them not to enter and disturb the peaceful possession of the defendant no.2 over the suit field properties.” 2. The defendant No.2 claims to be the owner of the suit property on the basis of the gift-deed and the relinquishment-deed. He also claims to be in possession of the suit property and, therefore, permanent injunction restraining the plaintiffs from disturbing his possession has been asked for by way of counter-claim. 3. The Trial Court has dismissed the application filed by the plaintiffs under Order 7, Rule 11(d) of the Civil Procedure Code by holding that the cause of action has been pleaded in the counter-claim, the counter-claim can be laid, whether or not the party will be able to prove the fact or succeed in getting the relief is altogether another aspect, and in view of the facts and circumstances on record particularly when the suit is filed for partition, possession and injunction by the original plaintiffs, each party is having equal status in partition suit, i.e. shares. 3 4. Shri Kshirsagar, the learned counsel appearing for the applicants, has relied upon the judgment of the Apex Court in Anathula Sudhakar v. P. Buchi Reddy (Dead) by L.Rs. and others, reported in AIR 2008 SC 2033, for the proposition that the counter-claim raises a complex question of title over the suit property and hence unless the relief of declaration that the defendant is the owner of the suit property is claimed, the claim for decree for permanent injunction simpliciter is not maintainable. He further submits that all the documents placed on record show the ownership and possession of plaintiff No.1 and hence the counter-claim without claiming the relief of declaration needs to be dismissed as not maintainable. 5. Shri Kshirsagar, the learned counsel, has relied upon para 21 of the judgment cited supra, which is reproduced below : “The plaintiffs and their witnesses gave evidence to the effect that Damodar Rao represented that his sister Rukminibai was the owner of the plot and negotiated for sale of the several portions thereof in favour of plaintiffs and PW 3, and that 4 Damodar Rao had attested the sale deeds in their favour and identified his sister as the vendor executant before the Sub- Registrar, at the time of registration of the sale deeds. It is no doubt true that if that was the position, it is possible for them to contend that having regard to section 41 of Transfer of Property Act, when the ostensible owner Rukminibai sold the property with the implied consent of Damodar Rao, the defendant as a transferee from Damodar Rao could not contend tht the sales were not valid. They also alleged tht defendant was a close relative of Damodar Rao and the sale in favour of defendant was only nominal, intended to defeat their title. But Damodar Rao in his evidence denied having made the oral gift or having attested the sale deeds in favour of plaintiffs. He also denied having identified his sister at the time of registration 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 5 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.” 6. Bare reading of the aforesaid para 21 of the judgment, cited supra, reveals that it is an adjudication over the facts involved in the case before the Apex Court and the ratio on facts does not constitute a precedent. Hence, the findings recorded in in para 21 or the ratio laid down therein on facts, cannot be made applicable to the facts of the present case. As against this, in clauses (a) and (b) of para 17 of the said judgment, the Apex Court has given the instances, where the suit simpliciter for permanent injunction can be filed and maintained. The same are, therefore, reproduced below : “17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under : 6 (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 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.” It has been held that where there is merely interference with the plaintiff's lawful possession or threat of dispossession, it is 7 sufficient to sue for an injunction simpliciter. Apart from this, if the decision is required to be rendered on the question of title of the defendants over the suit property by framing a substantial issue, then the defendants would ultimately not be entitled to the relief claimed in the counter-claim regarding grant of decree for permanent injunction. This is what has been held by the Trial Court by stating that whether or not the party will be able to prove the fact or succeed in getting the relief is altogether another aspect. 7. In view of this, no fault can be found with the view taken by the Trial Court. 8. The Civil Revision Application is, therefore, dismissed. Judge pdl