SRI. K.M. KRISHNA REDDY versus SRI. VINOD REDDY & ANR.
[2023] 13 S.C.R. 210, Supreme Court of India, 2023
Outcome: Case Partly allowed (Granted)
Segment: Issues
[2023] 13 S.C.R. 210 : 2023 INSC 877
210
CASE DETAILS
SRI. K.M. KRISHNA REDDY
v.
SRI. VINOD REDDY & ANR.
(Civil Appeal No. 4471 of 2010)
OCTOBER 06, 2023
[ABHAY S. OKA AND PANKAJ MITHAL, JJ.]
HEADNOTES
Issue for consideration: When in a suit simpliciter for a perpetual 
injunction based on title, the defendant pleads perfection of his title by 
adverse possession against the plaintiﬀ  or his predecessor, is it necessary 
for the plaintiﬀ  to claim a declaration of ownership.
Suit – For perpetual injunction based on title – Perfection of title 
by adverse possession pleaded by defendant – If necessary for plaintiﬀ  
to claim a declaration of title:
Held: Respondents admitted the ownership of the appellant’s father 
through whom the appellant claimed title – Even going by the respondents' 
case, the appellant was the co-owner of the property, and the respondents 
admittedly had no title in respect of the suit property – Thus, there was no 
issue involved about the title of the plaintiﬀ  and his father – It is not as if 
the respondents had set up a title in themselves or were claiming through 
somebody who was claiming the title – Their plea was of adverse possession 
against the appellant, which presupposes that the appellant was the owner 
– When in a suit simpliciter for a perpetual injunction based on title, the 
defendant pleads perfection of his title by adverse possession against the 
plaintiﬀ  or his predecessor, it cannot be said that there is any dispute about 
the
title of the plaintiﬀ  – Hence, the plaintiﬀ  need not claim a declaration of 
title in such a case as the only issues involved in such a suit are whether the 
plaintiﬀ  has proved that he was in possession on the date of the institution of 
the suit and whether the defendant has proved that he has perfected his title 
by adverse possession – Therefore, in the present case, it was not necessary 
for the appellant to claim a declaration of ownership – There was no cloud on
211
his title – Therefore, the suit, as originally ﬁ led, was maintainable – Burden 
was on the respondents to prove their plea of adverse possession, as there was 
a counter-claim (which is in the nature of a cross-suit) seeking a declaration 
of ownership based on adverse possession – High Court decided only one 
issue as to whether the amendment sought by the appellant for a prayer for 
declaration of ownership and possession, was barred by limitation – As the 
High Court did not consider the merits of the suit and counter-claim, regular 
second appeal remanded to the High Court – Impugned judgment set aside 
– Regular Second Appeal restored to the ﬁ le of the High Court – Adverse 
Possession. [Paras 14, 16, 18, 20 and 21]
Adverse Possession – Plea of – When defeated – Two alternative 
pleas – Suit for perpetual injunction based on title filed by the 
appellant, respondents pleaded perfection of title by adverse possession 
– Respondents though admitted the title of the appellant’s father to 
the suit property, they disputed that the suit property was allotted to 
appellant’s share under the family settlement and claimed that the 
appellant’s brother ‘J’ was the allottee of the suit property in partition 
and respondents’ mother was put in possession of the suit property by ‘J’ 
in part performance of the agreement for sale in favour of their mother:
Held: This contention completely militates against the plea of adverse 
possession as it completely defeats the plea of
adverse possession – This 
contention shows that the respondents are not claiming hostile possession, 
which is an essential ingredient of a plea of adverse possession – At the trial 
stage, the respondents ought to have elected one of the two alternative pleas 
– However, issues framed by the Trial Court indicate that the respondents 
relied upon their plea of adverse possession as well as their plea based on the 
agreement for sale executed by the said ‘J’ – Further, the deed of partition 
pleaded by the respondents, based on which, according to them, ‘J’ became 
the owner, was admittedly not proved – In fact, in the written statement, the 
bare particulars of the partition on the basis of which ‘J’ became the owner 
were not even pleaded by the respondents. [Para 13]
LIST OF CITATIONS AND OTHER REFERENCES
Anathula Sudhakar v. P. Buchi Reddy (dead) by Lrs. and Others (2008) 
4 SCC 594 : [2008] 5 SCR 331 – relied on.
SRI. K.M. KRISHNA REDDY v. SRI. VINOD REDDY & ANR.
SUPREME COURT REPORTS 
[2023] 13 S.C.R.
212
OTHER CASE DETAILS INCLUDING IMPUGNED 
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4471 of 2010.
From the Judgment and Order dated 10.02.2010 of the High Court of 
Karnataka at Bangalore in RSA No.1361 of 2007.
Appearances:
Rohan Dewan, Balaji Srinivasan, Advs. for the Appellant.
Amit Anand Tiwari, Ms. Shakun Sharma, Ms. Devyani Gupta, Ms. 
Tanvi Anand, Anirudh Singh, Advs. for the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
ABHAY S. OKA, J.
FACTUAL ASPECTS
1. The original plaintiﬀ  has preferred this appeal for challenging the 
judgment of the High Court in a second appeal by which the High Court has 
interfered and has set aside the decree passed by the ﬁ rst Appellate Court.
PLAINT
2. The appellant ﬁ led a suit for a perpetual injunction in respect of the 
immovable property more particularly described in the schedule to the plaint 
(for short, ‘the suit property’). According to the appellant, he and his brothers 
succeeded to the suit property after the demise of his father. He claimed 
that the suit property was allotted to his share under a family settlement 
dated 25th April 1993, executed by and between him and his brothers. The 
appellant claims to be in exclusive possession of the suit property.  The suit 
is founded on the cause of action that on 18th June 1994, the respondents 
tried to interfere with his possession of the suit property. Therefore, a suit 
simpliciter for
injunction was ﬁ led by him.
WRITTEN STATEMENT CUM COUNTER-CLAIM
3. The respondents-defendants ﬁ led a written statement cum counter-
claim accepting that the suit property was originally owned by Sri.
213
Muniswamappa, the late father of the appellant. The respondents’ contention 
in the written statement was that they, along with their family members, 
were continuously in possession of the suit property from 1978 and were 
storing ﬁ rewood, bricks, and manure. According to their case, they have 
been uninterruptedly using the suit property since 1978, and they have done 
so with the knowledge of the appellant, his father and their other family 
members, including his brother M. Jayarama Reddy (for short, ‘Jayarama’). 
Therefore, the respondents claimed that they had perfected the title to the 
suit property by adverse possession. 
4. Another contention raised by the respondents was that in the partition 
which took place after the death of the appellant’s father, the suit property 
was allotted to the share of Jayarama. In October 1983, the said Jayarama 
approached their mother and stated that if consideration was paid to him, 
the respondents could absolutely enjoy the suit property. According to the 
respondents, their mother paid a sum of Rs.5,500/- as a consideration to 
Jayarama who executed an agreement for sale in favour of their mother. 
It was also contended that in part performance for the agreement for sale, 
the respondents’ mother was put in possession of the suit property. It was 
contended in the written statement that the appellant had ﬁ led a suit in 
collusion with his brother Jayarama.
5. A counter-claim was made by the respondents claiming a
declaration 
that they have perfected their title to the suit property by way of adverse 
possession. They also claimed that the family settlement dated 25th April 
1993, relied upon by the appellant was void and non-est.  
AMENDMENT OF PLAINT
6. The appellant applied on 11th November 1997, to amend the plaint 
for incorporating paragraph 4(a) and a prayer for declaration of ownership 
and possession. The Trial Court allowed the amendment by the order dated 
04th June 1998. After the amendment was allowed, the respondents ﬁ led 
an additional written statement, contending that the appellant could not 
improve his case by amendment. 
FINDINGS OF THE COURTS
7. The Trial Court dismissed the suit and decreed the counter-claim. 
In an appeal preferred by the appellant, the District Court interfered and 
SRI. K.M. KRISHNA REDDY v. SRI. VINOD REDDY & ANR.
[ABHAY S. OKA, J.]
SUPREME COURT REPORTS 
[2023] 13 S.C.R.
214
decreed the suit ﬁ led by the appellant. In a second appeal preferred by the 
ﬁ rst respondent, the High Court interfered by holding that the amendment 
incorporating the prayer for declaration was barred by limitation and that 
the same would not relate back to the date of institution of the suit. Hence, 
the High Court dismissed the suit.  The High Court did not consider any 
other issue.
SUBMISSIONS
8. The submission of the learned counsel for the appellant was that 
all the material particulars regarding the appellant’s title were already 
incorporated in the plaint as originally ﬁ led, and only by way of abundant 
caution was the amendment made to include a prayer for declaration of 
title. His submission is that the prayer was already implicit in the plaint 
as originally ﬁ led. He submitted that though the respondents admitted the 
appellant’s title, without examining whether the respondents had established 
their plea of adverse possession, the High Court had erroneously interfered 
with the decree of the ﬁ rst appellate Court by dismissing the suit.
9. The learned counsel appearing for the respondents urged that the 
cause of action pleaded in the plaint as ﬁ led initially arose on 18th June 1994. 
He urged that as there was a serious dispute about the appellant’s title, the 
suit was not maintainable without seeking a declaration of title. He pointed 
out that the application for amendment was moved on 11th November 1997,
after the expiry of the period of limitation provided under Article 58 of the 
Limitation Act, 1963 (for short, ‘Limitation Act’). He submitted that the 
suit must fail once the amendment is held as time barred.
CONSIDERATION OF SUBMISSIONS
10. We have considered the submissions. As can be seen from the 
original plaint and the averments made in paragraph 3, the suit was founded 
on the title, as the appellant has set out on what basis he was claiming 
absolute ownership. There is an allegation that respondents have no title 
and no right to interfere with the appellant’s possession.
11. In paragraph 9 of the written statement cum counter-claim ﬁ led 
by the respondents, it was speciﬁ cally admitted that the appellant’s father 
owned the suit property. It was urged that the respondents’ father and, 
thereafter, the respondents were in open and peaceful possession of the suit
215
property from 1978 and have perfected their title by adverse possession. An 
inconsistent plea was taken that the appellant’s brother Jayarama had got the 
suit property in partition and that there was an agreement for sale executed 
by the said Jayarama in favour of their mother. In fact, they claimed that 
their mother was put in possession of the suit property in part performance 
of the agreement.
12. Thus, the respondents admitted the title of the appellant’s father 
to the suit property. What was disputed by the respondents was the claim 
of the appellant that the suit property was allotted to his share under the 
family settlement dated 25th April 1993. Thus, even if the document of 
family settlement is ignored, the appellant was one of the co-owners of the 
suit property after the demise of his father. Though the respondents claimed 
that the appellant’s brother Jayarama was the allottee of the suit property 
in partition, the respondents did not prove the partition. They could not 
establish that the suit property came to the share of the said Jayarama. At the 
highest, the respondents proved that under an agreement for sale executed by 
Jayarama, their mother paid consideration to the said Jayarama. However, 
in the written statement cum counter-claim, there is a speciﬁ c pleading that 
is as under: 
“Despite the fact that the defendants have perfected their right by 
way of adverse possession, on the advice of some of the well wishers 
their mother has paid a
sum of Rs. 5,500/- towards full consideration 
to the property and M.Jayarama Reddy entered into an Agreement 
of Sale and consented for continuing the possession and possession 
was accepted in the said agreement. It is also made clear that as a part 
performance of the agreement to sell, the defendant’s mother has been 
put in possession of the same.” 
(underlines supplied)
13. Thus, the stand is that their mother was put in possession of the 
suit property by Jayarama in part performance of the agreement for sale. 
This contention completely militates against the plea of adverse possession 
as this contention completely defeats the plea of adverse possession. The 
reason is that this contention shows that the respondents are not claiming 
hostile possession, which is an essential ingredient of a plea of adverse 
possession. In fact, at the trial stage, the respondents ought to have elected 
SRI. K.M. KRISHNA REDDY v. SRI. VINOD REDDY & ANR.
[ABHAY S. OKA, J.]
SUPREME COURT REPORTS 
[2023] 13 S.C.R.
216
one of the two alternative pleas. However, issues framed by the Trial Court 
indicate that the respondents relied upon their plea of adverse possession 
as well as their plea based on the agreement for sale executed by the said 
Jayarama. Thus, going by the stand taken in the written statement of the 
respondents, they admitted that the appellant’s father was the owner of the 
suit property. After the demise of his father, the appellant became one of 
the co-owners along with his brothers. The deed of partition pleaded by 
the respondents, based on which, according to them, Jayarama became the 
owner, has admittedly not been proved.  In fact, in the written statement, 
the bare particulars of the partition on the basis of which Jayarama became 
the owner were not even pleaded by the respondents. The relevant part of 
the pleadings is as follows:  
“The defendants submit that pursuant to the death of Muniswamappa, 
the plaintiﬀ  and his brothers have partitioned their properties and the 
property in question was allotted to M.Jayaram Reddy though he was 
not in possession.” 
14. Hence, the respondents admitted the ownership of the appellant’s 
father through whom the appellant claims title. Even going by the 
respondents’ case, the appellant was the co-owner of the property, and the 
respondents admittedly had no title in respect of the suit property. Therefore, 
there was no dispute about the appellant’s title as pleaded in the
suit. The 
issue was whether the plea of adverse possession defeated that title. The 
burden of proving the plea of adverse possession was on the respondents. The 
burden on the appellant was to prove his possession on the date of the suit. 
15. The question is whether it was necessary for the appellant to claim 
a declaration of title. On this aspect, a decision of this Court in the case of 
Anathula Sudhakar Vs. P. Buchi Reddy (dead) by Lrs. And Others1 is 
relevant. Para 13 and 14 of the said decision read thus:
“13. The general principles as to when a mere suit for permanent 
injunction will lie, and when it is necessary to ﬁ le a suit for declaration 
and/or possession with injunction as a consequential relief, are well 
settled. We may refer to them brieﬂ y.
1 
(2008) 4 SCC 594
217
13.1. Where a plaintiﬀ  is in lawful or peaceful possession of a property 
and such possession is interfered or threatened by the defendant, a suit 
for an injunction simpliciter will lie. A person has a right to protect 
his possession against any person who does not prove a better title by 
seeking a prohibitory injunction. But a person in wrongful possession 
is not entitled to an injunction against the rightful owner.
13.2. Where the title of the plaintiﬀ  is not disputed, but he is not 
in possession, his remedy is to ﬁ le a suit for possession and seek 
in addition, if necessary, an injunction. A person out of possession, 
cannot seek the relief of injunction simpliciter, without claiming the 
relief of possession.
13.3. Where the plaintiﬀ  is 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, the plaintiﬀ  will have to sue for declaration of title and 
the consequential relief of injunction. Where the title of the plaintiﬀ  
is under a cloud or in dispute and he is not in possession or not able 
to establish possession, necessarily the plaintiﬀ  will have to ﬁ le a 
suit for declaration, possession and injunction.
14. We may, however, clarify that a prayer for declaration will be 
necessary only if the denial of title by the defendant or challenge 
to the plaintiﬀ ’s title raises a cloud on the title of the plaintiﬀ  to 
the
property. A cloud is said to raise over a person’s title, when 
some apparent defect in his title to a property, or when some prima 
facie right of a third party over it, is made out or shown. An action 
for declaration, is the remedy to remove the cloud on the title to 
the property. On the other hand, where the plaintiﬀ  has clear title 
supported by documents, if a trespasser without any claim to title or 
an interloper without any apparent title, merely denies the plaintiﬀ ’s 
title, it does not amount to raising a cloud over the title of the plaintiﬀ  
and it will not be necessary for the plaintiﬀ  to sue for declaration and 
a suit for injunction may be suﬃ  cient. Where the plaintiﬀ , believing 
that the defendant is only a trespasser or a wrongful claimant without 
title, ﬁ les a mere suit for injunction, and in such a suit, the defendant 
discloses in his defence the details of the right or title claimed by 
SRI. K.M. KRISHNA REDDY v. SRI. VINOD REDDY & ANR.
[ABHAY S. OKA, J.]
SUPREME COURT REPORTS 
[2023] 13 S.C.R.
218
him, which raise a serious dispute or cloud over the plaintiﬀ ’s title, then 
there is a need for the plaintiﬀ , to amend the plaint and convert the suit 
into one for declaration. Alternatively, he may withdraw the suit for bare 
injunction, with permission of the court to ﬁ le a comprehensive suit 
for declaration and injunction. He may ﬁ le the suit for declaration with 
consequential relief, even after the suit for injunction is dismissed, where 
the suit raised only the issue of possession and not any issue of title.”
(underlines supplied)
16. It is obvious that there was no issue involved about the title of the 
plaintiﬀ  and his father. It is not as if the respondents had set up a title in 
themselves or were claiming through somebody who was claiming the title. 
Their plea was of adverse possession against the appellant, which presupposes 
that the appellant was the owner. When in a suit simpliciter for a perpetual 
injunction based on title, the defendant pleads perfection of his title by adverse 
possession against the plaintiﬀ  or his predecessor, it cannot be said that there is 
any dispute about the title of the plaintiﬀ . Hence, the plaintiﬀ  need not claim 
a declaration of title in such a case as the only issues involved in such a suit 
are whether the plaintiﬀ  has proved that he was in possession on the date of 
the institution of the suit and whether the defendant has proved that he has 
perfected his title by
adverse possession. Therefore, in the case at hand, it was 
not necessary for the appellant to claim a declaration of ownership. There was 
no cloud on his title.  Therefore, the suit, as originally ﬁ led, was maintainable.
17. Only two questions were required to be dealt with. The ﬁ rst was 
whether the appellant had established that he was in possession of the suit 
property on the date of the institution of the suit.  If the appellant fails to 
prove this issue, the suit will be liable to be dismissed. The burden was on the 
respondents to prove their plea of adverse possession, as there was a counter-
claim seeking a declaration of ownership based on adverse possession. The 
counter-claim is in the nature of a cross-suit. 
18. The High Court has decided only one issue: whether the amendment 
was barred by limitation. Therefore, in view of the above conclusion, the High 
Court will have to decide the other issues. 
19. There were two substantial questions of law framed by the High 
Court, which read thus:-
219
“1. Whether the appellate court was justiﬁ ed in reversing the judgment 
and decree passed by the trial court without considering the aspect 
of limitation?
2. 
Whether in the facts and circumstances of the case of appellate 
court was justiﬁ ed in reversing the judgment and decree passed 
by the trial court based on Exbhit P-1?” 
We agree with the High Court that the amendment was barred by 
limitation, considering the date of the cause of action pleaded and the date of 
applying for amendment. It was not the case of the respondents that the suit as 
originally ﬁ led was barred by limitation. Therefore, the ﬁ rst question does not 
survive. The second question, as framed, is not a substantial question of law. 
20. As the High Court has not considered the merits of the suit and 
counter-claim, we propose to remand the regular second appeal to the High 
Court.
21. Hence, appeal is partly allowed. The impugned judgment dated 10th 
February 2010, is set aside, and Regular Second Appeal No. 1361 of 2007 
is restored to the ﬁ le of the High Court. Since the appeal is of 2007, which 
was admitted for ﬁ nal hearing, we direct the High Court to frame additional 
substantial questions of law by exercising power under the proviso of sub-
Section (5) of Section 100 of the Code of Civil Procedure, 1908. The High 
Court shall proceed to decide the Regular Second Appeal in accordance with 
the law. Except for the issue of amendment of the plaint being barred by the 
limitation, all
other issues are left open to be decided by the High Court. 
22. Normally, this Court should never ﬁ x a time-bound schedule for 
disposal of a case pending before High Courts, which are Constitutional 
Courts. But, in this case, the Regular Second Appeal is of 2007. Therefore, 
the High Court shall give necessary out-of-turn priority to the disposal of the 
Regular Second Appeal. We direct the parties to this appeal to appear before 
the concerned roster Bench of the Karnataka High Court on 30th October 
2023, at 10.30 a.m., for ﬁ xing a date for hearing
23. No order as to costs. 
Headnotes prepared by: 
Appeal partly allowed.
Divya Pandey
SRI. K.M. KRISHNA REDDY v. SRI. VINOD REDDY & ANR.
[ABHAY S. OKA, J.]