Case: KAYALULLA PARAMBATH MOIDU HAJI Vs. NAMBOODIYIL VINODAN

said property. Per contra, it is the claim of the respondent-defendant that the property shown in the margin of the written statement to an extent of 52 ½ cents belongs to the respondent-defendant and that the appellant- plaintiff was illegally claiming right over the said property. It is his specific case that the property is neither included in the assignment deed nor in the purchase certificate produced by the appellant-plaintiff. It is his further case that the said property belonged to his father Othenan by virtue of assignment from Puthiyottil Kanaran. It is his case that the title of Puthiyottil Kanaran under Exhibit-A15 is referable to Exhibit-A14 i.e. Document No. 2987 of 1924. It is the specific case of the respondent-defendant that after the death of his father, his mother and children applied for purchase certificate by filing Application being O.A. No. 7014 of 1976 to purchase the Jenmam right under Section 72 of the Kerala Land Reforms Act, 1963. It is his case that the Land Tribunal allowed the said application on 9th May 1977. Thereafter, the partition took place between the wife and children of Othenan in the year 1999. 16. The learned trial court in its order has observed that the survey number shown in the plaint schedule is R.S. 28/1A and the survey number of the property claimed by the respondent- defendant in the margin of the written statement is R.S. 30/1. It has further observed that from the report of the Advocate Commissioner it would reveal that the correct survey number of the disputed property would be either R.S. 119/1 or 119/2. However, the learned trial judge observed that the survey number does not have much relevance in the identification of the disputed property. 17. The learned Appellate Court, while dismissing the appeal, though observed that on inspection, the Advocate Commissioner could see some portion of a revetment in between the plots A and B which has been marked in Exhibit- C1 Plan. It goes on to observe that the said revetment cannot be treated as physical demarcation or boundary because the Advocate Commissioner is definite that he could not see anything to indicate that there had been such a boundary or revetment and that it was impossible to put up such a revetment throughout the length from east to west because it was a sloping rocky area wherein such a revetment cannot be put up. The learned Appellate Court further observed that when the plot A is admittedly in the possession of the appellant- plaintiff, the only finding possible is that the disputed plot B also is in his possession. The learned Appellate Court further observed that if the respondent-defendant claims title over the disputed property, then the only remedy available to him, is to recover it under the law. It goes on to observe that in the suit for injunction simpliciter, the only material issue is whether the appellant-plaintiff has got actual and exclusive possession over the entire plaint schedule property including the disputed portion. 18. It could thus clearly be seen that this is not a case where the appellant-plaintiff can be said to have a clear title over the suit property or that there is no cloud on appellant-plaintiffs title over the suit property. There is a serious dispute between the appellant-plaintiff and respondent-defendant with regard not only to title over the suit property but also its identification, which cannot be decided unless the entire documentary as well as oral evidence is appreciated in a full-fledged trial. 19. We find that the present case would be covered by clause (b) of paragraph 21 of the judgment of this Court in Anathula Sudhakar (supra). We find that, in the present case, the question of de jure possession has to be established on the basis of the title over the property. Since the said property is a vacant site, the issue of title would directly and substantially arise for consideration, inasmuch as without the finding thereon, it will not be possible to decide the issue of possession. As observed in clause (c) of paragraph 21 of the judgment cited supra, 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 the suit for mere injunction. We do not find that the present case would fall in exception carved out in clause (d) in paragraph 21 of the judgment cited supra inasmuch as the matter involved cannot be said to be simple and straightforward wherein the Court would decide upon the issue regarding title, even in the suit for injunction. 20. It will also be relevant to refer to the following observations of this Court in the case of Jharkhand State Housing Board v. Didar Singh and Another (2019) 17 SCC 692 : 11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction. 21. Another aspect which is required to be taken into consideration is that, in pursuance to the impugned judgment and order, the appellant-plaintiff has already amended the suit so as to claim a relief for declaration of title. A consequential amendment has also been made to the written statement by the respondent-defendant. In that view of the matter, it will be appropriate that the parties get their right adjudicated with regard to the declaration of title on merits. We therefore find no reason to interfere with the impugned judgment and order of the High Court.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]11. The issue is no more res integra. The position has been crystalised by this Court in the case of Anathula Sudhakar (supra) in paragraph 21, which read thus:-21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:(a) Where a cloud is raised over the plaintiffs title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiffs 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 plaintiffs 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 [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 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 the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.12. It could thus be seen that this Court in unequivocal terms has held that where the plaintiffs title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession. It has been clearly held that 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.13. No doubt, this Court has held that 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. However, it has been held that such cases are the exception to the normal rule that question of title will not be decided in suits for injunction.15. From the perusal of the pleadings, it could be seen that it is the case of the appellant-plaintiff that he derives the title to the suit property on the basis of registered assignment deed No. 110 of 1977.18. It could thus clearly be seen that this is not a case where the appellant-plaintiff can be said to have a clear title over the suit property or that there is no cloud on appellant-plaintiffs title over the suit property. There is a serious dispute between the appellant-plaintiff and respondent-defendant with regard not only to title over the suit property but also its identification, which cannot be decided unless the entire documentary as well as oral evidence is appreciated in a full-fledged trial.19. We find that the present case would be covered by clause (b) of paragraph 21 of the judgment of this Court in Anathula Sudhakar (supra). We find that, in the present case, the question of de jure possession has to be established on the basis of the title over the property. Since the said property is a vacant site, the issue of title would directly and substantially arise for consideration, inasmuch as without the finding thereon, it will not be possible to decide the issue of possession. As observed in clause (c) of paragraph 21 of the judgment cited supra, 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 the suit for mere injunction. We do not find that the present case would fall in exception carved out in clause (d) in paragraph 21 of the judgment cited supra inasmuch as the matter involved cannot be said to be simple and straightforward wherein the Court would decide upon the issue regarding title, even in the suit for injunction.20. It will also be relevant to refer to the following observations of this Court in the case of Jharkhand State Housing Board v. Didar Singh and Another (2019) 17 SCC 692 :11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.21. Another aspect which is required to be taken into consideration is that, in pursuance to the impugned judgment and order, the appellant-plaintiff has already amended the suit so as to claim a relief for declaration of title. A consequential amendment has also been made to the written statement by the respondent-defendant. In that view of the matter, it will be appropriate that the parties get their right adjudicated with regard to the declaration of title on merits. We therefore find no reason to interfere with the impugned judgment and order of the High Court.