Injunction - when to be granted = The question of the plaintiff who is in possession of the suit property being entitled for permanent injunction against the defendant arises only in case it is found that the plaintiff has got better title than that of the defendant.

published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=9956
HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU              
Second appeal No.1212 of 1999

05-06-2013

Vegendla Vijayalakshmi and two others......Appellants
                               


Gaddipati Naga Himabindu and seven others.... Respondents


Counsel for the Appellants:Sri N.SreeRamaMurthy

Counsel for Respondents: Smt.K.Lalitha


<Gist :

>Head Note:

?Cases referred:
1. 2004(2) ALD 786
2. AIR 1972 SC 2299
3. 2004(2) ALD 31 (SC)
4. (2008) 4 SUPREME COURT CASES 594      

JUDGMENT:  


        Three of the legal representatives of the deceased plaintiff are the
appellants herein.  Subject matter of the suit is an extent of Ac.2.42 cents of
dry land in Nidubrolu village of Guntur District.  Originally the suit land
belonged to one Pamulapati Sundaramma, who died on 22.02.1991.  The first
defendant is daughter of the defendants 2 and 3.  The third defendant is
daughter of the 4th defendant.  Late Sundaramma is wife of brother of the
plaintiff and the 4th defendant.  Sundaramma died possessed of the suit
property.  The plaintiff contends that Sundaramma bequeathed the suit property
to the plaintiff under Ex.A1 unregistered will dated 20.02.1991.  The defendants
contend that Sundaramma executed Ex.X-11 will dated 27.07.1987 bequeathing the
suit property in favour of the first defendant and deposited the said will in
sealed cover with the registration authorities to be opened after her death.  It
is the plaintiff's contention that she took possession of the suit property
after the death of Sundaramma.  The defendants also contend that they have been
in possession of the suit property after the death of Sundaramma.  With that
background and with those allegations, the plaintiff has chosen to file the suit
for permanent injunction restraining the defendants from interfering with her
peaceful possession and enjoyment of the suit land; and it was resisted by the
defendants disputing the plaintiff's allegations.  After trial, the trial Court
decreed the suit granting permanent injunction in favour of the plaintiff.  On
appeal by the defendants, the lower appellate Court came to the conclusion that
the plaintiff should have filed a suit for declaration of title; and disposed of
the appeal by giving three months time to the plaintiff to file a comprehensive
suit for declaration of title and permanent injunction.  While disposing of the
appeal, the lower appellate Court limited injunction in favour of the plaintiff
for the said period of three months.  Questioning the same, some of the legal
representatives of the deceased plaintiff filed this second appeal.
        While admitting this appeal, the then learned Judge of this Court did not
frame any substantial questions of law.  On perusal of record and memorandum of
the second appeal and hearing arguments of the appellants' counsel, I find that
the following substantial question of law arises for determination in this
second appeal:
        "Whether the lower appellate Court was legally justified in driving the
plaintiff to file a suit for declaration of title within three months and
limiting the permanent injunction granted by the trial Court for the said three
months, after having found that the plaintiff was in possession of the suit
land?

        It is contended by the appellants' counsel that the trial Court found that
Ex.A-1 is a true will executed by Sundaramma and Ex.X-11 is not a genuine will
and that the said finding of the trial Court was not disturbed by the lower
appellate Court.  The contention that finding as to genuineness of the wills is
not disturbed by the lower appellate Court is not correct, because the lower
appellate Court did not consider the evidence relating to genuineness of the
respective wills and as to title to the suit property and the lower appellate
Court left that question to be open for being determined in a comprehensive suit
to be filed by the plaintiff for declaration of his title for the suit property
and for consequential permanent injunction in his favour.  No doubt, both the
courts below after considering oral and documentary evidence on record, came to
the conclusion that the plaintiff took possession of the suit land subsequent to
death of late Sundaramma and has been cultivating the same.  On the basis of the
said finding as to possession, the appellants' counsel contended that when the
plaintiff has got settled possession of the suit land, the lower appellate Court
should have granted permanent injunction in favour of the plaintiff.  It is
further contended by the appellants' counsel that limiting granting of permanent
injunction for a period of three months only is not provided by law and it is
contrary to decision of this Court in DAKKILI SIVA NARAPA REDDY v. GADDAM    
PENCHALA REDDY1.  The lower appellate Court came to the conclusion that in his  
opinion, in whom the title for the suit property vests in between the parties
has to be determined in appropriate proceedings and till then neither the
defendant can be held to be the true owner nor the plaintiff can be treated as a
trespasser.  Therefore, even without determining as to who out of the two
parties is the true owner of the suit land, the appeal was disposed of by the
lower appellate Court.  It is only to preserve status quo of possession of the
plaintiff of the suit land, which possession is to be determined as lawful or
unlawful, the lower appellate Court protected possession of the plaintiff for
three months during which time the plaintiff was directed to file a
comprehensive suit for title and permanent injunction.  Therefore, this is not a
decree by the lower appellate Court of granting permanent injunction only for a
limited period.  Even protection of possession of the plaintiff of the suit land
for a period of three months by the lower appellate Court is by way of grace and
not as a matter of right of the plaintiff.  It will not clothe the plaintiff
with a right to continue to have permanent injunction in her favour for ever,
without determination of respective titles of both the parties for the suit
land.
        It is contended by the appellants' counsel that when the plaintiff is
found to be in possession of the suit land by the date of filing of the suit in
the trial Court, the plaintiff is entitled for permanent injunction in her
favour and that it is for the defendants to approach proper Court seeking
possession thereof by filing appropriate suit for declaration of title and
possession.  But, the legal position set out by the Supreme Court is otherwise.
In M.KALLAPPA SETTY v. M.V.LAKSHMINARAYANA RAO2, the Supreme Court in          
categorical terms held as follows:
        "The plaintiff can on the strength of his possession resist interference
from persons who have no better title than himself to the suit property.  Once
it is accepted, as the trial court and the first appellate court have done, that
the plaintiff was in possession of the property ever since 1947 then his
possession has to be protected as against interference by someone who is not
proved to have a better title than himself to the suit property."
       

The question of the plaintiff who is in possession of the suit property being
entitled for permanent injunction against the defendant arises only in case it
is found that the plaintiff has got better title than that of the defendant.  In
the case on hand, the lower appellate Court declined to consider the question of
title and as to who out of the two parties has got better title and directed the
plaintiff to file a comprehensive suit for declaration of title and for
permanent injunction.  In the absence of a finding as to the plaintiff having
better title to the suit property than that of the defendants, the question of
the plaintiff being entitled for permanent injunction against the defendants
will not arise at all.
        The appellants' counsel placed reliance on RAME GOWDA v. M.VARADAPPA      
NAIDU3 of the Supreme Court and contended that when the plaintiff is found to be
in settled possession of the suit land, then the plaintiff is entitled for
permanent injunction against the defendants.  The Supreme Court ultimately held
as follows:
        "In the present case the Court has found the plaintiff as having failed in
proving his title.  Nevertheless, he has been found to be in settled possession
of the property.  Even the defendant failed in proving his title over the
disputed land so as to substantiate his entitlement to evict the plaintiff.  The
trial Court therefore left the question of title open and proceeded to determine
the suit on the basis of possession, protecting the established possession and
restraining the attempted interference therewith.  The Trial Court and the High
Court have rightly decided the suit.  It is still open to the defendant-
appellant to file a suit based on his title against the plaintiff-respondent and
evict the latter on the former establishing his better right to possess the
property."

        It is further pointed out by the appellants' counsel that the Supreme
Court observed that where in a suit for declaration of title and injunction,
title is not clear, the question of title will have to be kept open without
denying the plaintiff's claim for injunction in view of the fact that the
plaintiff has been in possession and there is nothing to show that the plaintiff
has gained possession by any unfair means just prior to filing of the suit.

        This is not a case where one of the two parties to the suit have been the
original owner and the other party has gained possession of the suit land by
unfair means just prior to filing of the suit in the trial Court.  In this case,
the suit land belonged to one late Sundaramma who died on 22.02.1991 possessed
of the suit property.  Ex.A-1 unregistered will in favour of the plaintiff is
two days prior to her death.  Ex.X-11 deposited will in favour of the first
defendant is of the year 1987.  It is only after the death of Sundaramma in the
year 1991, the plaintiff came to be in possession of the suit land.  Since then
there is scramble for possession as well as scramble for title of the suit land.
It is contended by the respondents' counsel that there cannot be any dispute as
to genuineness of Ex.X-11 in favour of the first defendant, since it was a will
deposited by the deceased herself with the registering authorities during her
lifetime and since the said will Ex.X-11 was referred to in Ex.A-1 unregistered
will being relied upon by the plaintiff.  Truth and genuineness of Ex.A-1 and
Ex.X-11 are matters to be comprehensively decided by an appropriate Court in an
appropriate suit to be filed by the plaintiff for declaration of his title and
for consequential permanent injunction.  When there is no definite finding as to
title on the basis of respective wills relied upon by both the parties, it
cannot be said that the plaintiff is entitled for permanent injunction against
the defendants.

        It is contended by the appellants' counsel that the lower appellate Court
having found the plaintiff in possession of the suit property should have
granted permanent injunction in her favour and should have directed the
defendants to file a suit for declaration of title and for possession instead of
directing the plaintiff to file a suit for declaration of title.  The
respondents' counsel placing reliance on ANATHULA SUDHAKAR v. P.BUCHI REDDY4 of      
the Supreme Court contended that when there is dispute of title of the
plaintiff, the plaintiff in all fairness should have filed the suit for
declaration of title together with the relief of permanent injunction.  It is
pointed out by the respondents' counsel that even prior to filing of the suit in
the trial Court, each of the parties filed their respective caveats in the trial
Court asserting their respective titles and in those circumstances, it is more
incumbent on the plaintiff to file a comprehensive suit for declaration of title
and for permanent injunction.  When there is dispute as to title for the suit
property which dispute is antecedent to filing of the suit in the trial Court,
it is incumbent for a plaintiff to seek declaration of his or her title before
claiming relief of permanent injunction.  The Supreme Court in ANATHULA SUDHAKAR  
(4 supra) analyzed several situations of this nature and held as follows:
        "The general principles as to when a mere suit for permanent injunction
will lie, and when it is necessary to file a suit for declaration and/or
possession with injunction as a consequential relief, are well settled.  We may
refer to them briefly.
        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 simplicitor 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.
        Where the title of the plaintiff is not disputed, but he is not in
possession, his remedy is to file a suit for possession and seek in addition, if
necessary, an injunction.  A person out of possession, cannot seek the relief of
injunction simplicitor, without claiming the relief of possession.
        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 file a suit for declaration, possession and injunction.
        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 sufficient.  Where the plaintiff, believing that the defendant
is only a trespasser or a wrongful claimant without title, files 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 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
file a comprehensive suit for declaration and injunction.  He may file 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."

        In the light of the above pronouncement of the Supreme Court and in the
light of facts of this case which cast cloud on the plaintiff's title to the
suit property, it is all the more necessary for the plaintiff to have filed the
suit for declaration of title.  Apart from casting of cloud on the plaintiff's
title, in this case, there are respective claims for title for the suit property
by both the parties resulting in scramble for title as well as possession of the
suit land.  In those circumstances, the lower appellate Court is justified in
law in directing the plaintiff to file a suit for declaration of title before
claiming the relief of permanent injunction, inspite of the plaintiff being in
possession of the suit property by the date of filing of the suit in the trial
Court.  The substantial question of law is answered accordingly.

        In the result, the second appeal is dismissed with costs.

        ________________________________    
SAMUDRALA GOVINDARAJULU, J.      
05th June 2013

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