caselaws.org
Supreme Court of India
Jose vs Johnson on 2 March, 2020Author: A.S. Bopanna
Bench: R. Banumathi, A.S. Bopanna
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1892 OF 2020
(Arising out of SLP (Civil) No.21328 of 2015)
Jose .…Appellant(s)
Versus
Johnson …. Respondent(s)
JUDGMENT
A.S. Bopanna,J.
Leave granted.
2. The appellant herein is before this Court assailing
the judgment dated 14.11.2014 passed by the High Court
of Kerala in FAO (RO) No.229/2014. Through the said
judgment the High Court allowed the appeal, set aside
the judgment dated 31.03.2014 passed by the First
Appellate Court in AS No.186/2011 and restored the
Signature Not Verified
Digitally signed by
MADHU BALA
Date: 2020.03.02
judgment and decree passed by the Trial Court in O.S.
16:33:08 IST
Reason:
Page 1 of 13
No.288/2009. Since the rank of the parties was
described differently in the said proceedings the parties
will be referred in the rank assigned to them in the trial
court in the original suit for the sake of convenience and
clarity. The appellant herein was the defendant, while
the respondent herein was the plaintiff in the suit. They
will be referred accordingly.
3. The chronology of the events is that the plaintiff
filed the suit bearing O.S. No.288/2009 in the Court of
the Munsiff at Aluva seeking for judgment and decree of
permanent prohibitory injunction in respect of the suit
schedule property. The defendant appeared and filed
detailed written statement disputing the claim of the
plaintiff. Based on the rival pleadings the trial court
framed issues, the parties tendered evidence and the trial
court decreed the suit through its judgment dated
26.08.2011. The defendant claiming to be aggrieved by
the same preferred an appeal under Section 96 of Civil
Procedure Code (‘CPC’ for short) in A.S. No.186/2011.
Page 2 of 13
The First Appellate Court on reappreciating the matter,
through its judgment dated 31.03.2014 set aside the
judgment dated 26.08.2011 passed by the trial court in
O.S. No.288/2009 and remanded the suit to the trial
court for fresh disposal in terms of the directions issued.
Since it was a remand in terms of order 41 Rule 23A
CPC, the plaintiff preferred an appeal to the High Court
in FAO (RO) No.229/2014 as contemplated under Order
43 Rule 1(W) of CPC. The High Court through its
judgment dated 14.11.2014 has allowed the appeal and
restored the judgment and decree passed by the trial
court. The defendant, therefore, claiming to be aggrieved
is before this Court in this appeal.
4. The brief facts are that the plaintiff claimed right in
respect of the property bearing Resurvey No.371/5 (old
Survey No.517/7, 517/1 in Block 28 measuring 15 ‘Are’
in Vadakkumbhagom, Aluva Taluk, Sreemoolanagaram
Sub District, Ernakulam under a Partition Deed No.2617
of 2007 being a cousin of the defendant No.1, the fathers
Page 3 of 13
of the plaintiff and defendant No.1 being brothers. The
cause for the suit was stated to be the obstruction
caused by the defendants when the plaintiff on
19.06.2009 was in the process of constructing a wall on
the eastern side. The nature of the incident is referred
and, in that background, prayed for permanent
prohibitory injunction. The plaintiff examined himself
and relied upon the documents at Exhibits A1 to A6. The
Report of the Court Commissioner and the sketch were
marked as Exhibits C1 and C1(a). The defendant did not
tender any evidence or produce documents.
5. The trial court while answering the issues has held
that the property is identifiable and the plaintiff is the
owner in possession of the suit schedule property. In
that light on answering the issues in favour of the
plaintiff has decreed the suit. In the appeal filed by the
defendant the lower appellate court while reappreciating
the evidence has taken into consideration the contention
put forth by the defendant with regard to the nature of
Page 4 of 13
the property and the manner in which the property had
been partitioned in the year 1964. The Court had also
taken note that in such circumstance the plaintiff had
not made any effort to identify the property nor was the
defendant provided sufficient opportunity to prove their
claim. The lower appellate court also took note that an
application in I.A. No.349/2013 had been filed by the
defendant under Order 41 Rule 27 for producing the
certified copy of the Partition Deed No.651/1964.
Further it was concluded that the suit was tried in a
hurry without appropriately identifying the property
along with its measurement. In that circumstance, the
lower appellate court on finding that the matter requires
reconsideration had set aside the decree and remanded
the matter.
6. In the appeal filed by the plaintiff before the High
Court, the High Court on taking note that the suit was
for perpetual injunction only and in that light since the
possession of the plaintiff not being in serious dispute,
Page 5 of 13
was of the opinion that the title to the property was not
relevant. In that circumstance, the High Court was of the
opinion that the learned Judge of the lower appellate
court was not justified in arriving at the conclusion that
the property is to be measured on the basis of the title
deed. In that view, the High Court has set aside the
judgment of the lower appellate court and restored the
decree passed by the trial court.
7. Heard Shri P.A. Noor Muhamed, learned advocate
for the appellant, Mr. C.N. Sreekumar, learned senior
advocate for the respondent and perused the appeal
papers.
8. As noted the lower appellate court has set aside
the judgement, remanded the matter and permitted the
defendant to file the application under Order 41 Rule 27
CPC before the trial court and has permitted the parties
to tender further evidence so as to enable the
identification of the plaint schedule property with the
assistance of the Taluk Surveyor and thereafter arrive at
Page 6 of 13
the conclusion. Per contra, the High Court on taking
note that the suit is for bare injunction has found that
the exercise to identify the property with reference to the
ownership is not justified.
9. The learned senior advocate for the plaintiff while
submitting in support of the conclusion reached by the
High Court would contend that the law is well established
that in a suit for bare injunction the proof of title would
not be necessary and the relevant circumstance would
only be the possession relating to the property. Among
others, the learned senior advocate has relied on the
decision of this Court in the case of Ravinder Kaur
Grewal & Ors. vs. Manjit Kaur & Ors. (2019) 8 SCC
729 wherein the relevance of possession including the
possession claimed adverse to the interest of the owner is
also considered. In that light, it is contended by the
learned senior advocate that in such circumstance when
the possession had been established before the trial
court, the trial court was justified in granting the decree.
Page 7 of 13
The High Court, therefore, has appropriately restored
such decree and the same does not call for interference in
this appeal is his contention.
10. The learned advocate for the defendant would
however contend that the very nature of the rival
contentions put forth in the suit would indicate that the
very claim to the property relating to the portion wherein
the wall was being constructed was disputed by the
defendant and in that light when appropriate issues were
framed by the trial court, the manner in which the wall
was being constructed cannot be considered as being on
a property where the plaintiff was in lawful settled
possession. The very fact that the plaintiff had not
sought for declaration of his right over the property when
his right was under challenge would make the suit itself
not maintainable. It is further contended that the lower
appellate court in that light had appropriately remanded
the matter so that the appropriate consideration would
Page 8 of 13
be made and such judgment ought not to have been
interfered by the High Court.
11. In the backdrop of the contentions put forth,
though there could be no cavil to the position relating to
the relevance of possession being the prime consideration
in a bare suit for injunction as contended by the learned
senior advocate for the plaintiff, each case will have to be
examined on its own merits keeping in view the nature of
the pleading put forth before the trial court and the
understanding of the case with which the parties have
gone to trial. If this aspect is kept in view the very nature
of the plaint averments would indicate that the parties to
the suit are related to each other and the property which
was being commonly enjoyed by their predecessors was
partitioned under the Deed No.2617/2007. The present
dispute had arisen when the plaintiff was seeking to put
up a construction of the wall and the defendants had
objected to the same. The prayer in the plaint reads as
hereunder:
Page 9 of 13
“(a) issue a permanent prohibitory injunction
restraining the defendants and their people
from trespassing into the plaint schedule
property or questioning the right of the
plaintiff or obstructing the enjoyment of the
plaintiff or committing waste trespassing into
the plaint schedule property or destroying
the peaceful life of the plaintiff.”
(Emphasis supplied)
12. The emphasised portion in the prayer would provide
an indication that the defendant had challenged the right
of the plaintiff and not merely interference with the lawful
possession as claimed by the plaintiff and as such the
prayer was sought. Further the averments raised by the
defendants in the written statement refers to the manner
in which the right to the property had flowed ever since
the partition through the Deed No.651/1964 and the
measurement thereof. The location of the shares enjoyed
by the parties is referred and the right as claimed by the
plaintiff is disputed. In the background of the
contentions raised in the rival pleadings the trial court
had framed the following issues:
Page 10 of 13
“Basing on the above contentions the
following issues are raised:
1. whether plaint schedule property is
identifiable?
2. whether plaintiff is in ownership and
possession of property?
3. whether suit is bad for nonjoinder of
necessary parties?
4. whether cause of action alleged is true
and correct?
5. whether plaintiff is entitled for injunction
as prayed for?
6. Reliefs and costs.”
13. The Issues No.1 and 2 framed by the trial court
refers to the identity of the property as also the
ownership and possession thereof. The plaintiff did not
object to the said issues nor did the plaintiff file any
application under Order 14 Rule 5 CPC seeking
amendment or to strike out the said issues. On the other
hand, the evidence was tendered based on the issues and
the Issue Nos.1 and 2 were considered by the trial court
and was answered in favour of the plaintiff wherein it is
held that the plaintiff is in ownership and possession of
the plaint schedule property. In that background when
the defendant had questioned such conclusion reached
Page 11 of 13
by the trial court and had put forth the contention and
also sought for an opportunity to produce additional
evidence by filing an application under Order 41 Rule 27
CPC and in that background when the lower appellate
court was of the opinion that the said issues need
reconsideration in the background of the additional
evidence and opportunity being provided to the defendant
the appropriate course was to remand the matter to the
trial court and provide opportunity which was
accordingly done.
14. If the above aspects are kept in view the
observations made by the High Court relating to the
consideration required being only of possession since the
suit was for perpetual injunction is without reference to
the nature of contentions put forth in a suit, the issues
that had been raised for consideration and the
conclusion that had been reached by the trial court as
also the lower appellate court in that background.
Hence, we are of the opinion that in the facts and
Page 12 of 13
circumstance of the present case the High Court was not
justified, but the conclusion of the lower appellate court
to set aside the judgment and decree of the trial court
and remand the matter for reconsideration by the trial
court was the appropriate course.
15. In that view, the judgement dated 14.11.2014
passed by the High Court of Kerala in FAO (RO)
No.229/2014 is set aside. The judgment dated
31.03.2014 passed by the Additional District Judge,
North Paravur in A.S. No.186/2011 is restored.
16. The appeal is accordingly allowed. In the facts and
circumstances of the case, the parties to bear their own
costs. Pending application, if any, shall stand disposed
of.
………….…………….J.
(INDIRA BANERJEE)
.……………………….J.
(A.S. BOPANNA)
New Delhi,
March 02, 2020
Page 13 of 13
Comments