Kayalulla Parambath Moidu Haji vs Namboodiyil Vinodan on 7 September, 2021

caselaws.org

Supreme Court of India
Kayalulla Parambath Moidu Haji vs Namboodiyil Vinodan on 7 September, 2021Author: B.R. Gavai

Bench: L. Nageswara Rao, B.R. Gavai, B.V. Nagarathna

NON­REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 5575­5576 OF 2021
[Arising out of SLP(C) Nos. 9948­49 of 2020]

KAYALULLA PARAMBATH MOIDU
HAJI …APPELLANT(S)

VERSUS

NAMBOODIYIL VINODAN …RESPONDENT(S)

JUDGMENT

B.R. GAVAI, J.

1. Leave granted.

2. These appeals challenge the judgment and order passed

by the learned Single Judge of the Kerala High Court dated 21 st

August 2019 in Regular Second Appeal No. 83 of 2007 thereby

allowing the appeal in part and remanding the suit to the

learned trial court for fresh disposal. The appeals also

challenge the order of the learned Single Judge of the Kerala

1
High Court dated 10th February 2020 in Review Petition No.

1242 of 2019 in RSA No. 83 of 2007 thereby dismissing the

review petition.

3. The facts in brief giving rise to filing of these appeals are

as under:­

The parties are referred to herein as they were referred to

in the original suit. The appellant­plaintiff had filed a plaint in

respect of the suit property claiming that it belonged to him by

virtue of the registered assignment deed No. 110 of 1977 SRO,

Kavilumpara executed by Kalariyullathil Paru. It is the claim of

the appellant­plaintiff that he had effected improvements in the

suit property and also paid land revenue. It is the claim of the

appellant­plaintiff that the respondent­defendant has no right

over the suit property. As per the plaint, a portion of the suit

property is a coconut garden and the southern side is a rocky

area with timber trees. It is the case of the appellant­plaintiff

that there are definite boundaries on all the four sides of the

suit property. It is his case that there is a road on the western

2
side of the suit property and the respondent­defendant’s

property is further westwards. It is the case of the appellant­

plaintiff that he is residing at a distance of 1½ kms away from

the suit property. It is further his case that on 16 th January

2002 at about 10:00 a.m., the respondent­defendant and five

others trespassed into the plaint schedule property and

attempted to cut and remove a jackfruit tree worth

Rs.60,000/­. After coming to know the same, the appellant­

plaintiff rushed to the spot and prevented the respondent­

defendant. The appellant­plaintiff therefore filed a suit with a

prayer to restrain the respondent­defendant and his men from

trespassing into the suit property, committing waste therein

and from interfering with the peaceful possession and

enjoyment of the suit property by the appellant­plaintiff.

4. The claim of the appellant­plaintiff was resisted by the

respondent­defendant by filing a written statement. It is the

case of the respondent­defendant that the plaint schedule

property is not identifiable from the description given in the

3
plaint. It is his case that the property described in the plaint

schedule and the property shown to the Advocate

Commissioner is different. It is the case of the respondent­

defendant that the property to the extent of 52½ cents

belonging to the respondent­defendant, despite not being

included in the assignment deed of 1977, is being claimed by

the appellant­plaintiff to be in his possession. It is his further

case that the said property is also not part of the purchase

certificate. It is the case of the respondent­defendant that the

suit property never belonged to Kalariyullathil Paru and

therefore, no right could be transferred in favour of the

appellant­plaintiff by virtue of assignment deed dated 15 th

January 1977. It is the specific case of the respondent­

defendant that the property as described in the plaint was

never owned by the appellant­plaintiff or his predecessors.

5. It is the case of the respondent­defendant that he had sold

a jackfruit tree to one Nanu and Rafeeq for Rs. 65,000/­ which

was in the marginally noted property and they had cut and

4
removed the tree. It is the case of the respondent­defendant

that as per the Commission’s Report, the timber was seen

outside the suit property on the roadside. It is the case of the

respondent­defendant that the father of the respondent­

defendant namely Puthenpurayil Othenan was having a

property admeasuring 85 × 200 six feet kol by virtue of

registered assignment deed dated 10 th August 1927. According

to the respondent­defendant, his father had given possession of

a portion of the property to the tenants and was holding 7.38

acres of land in which his wife and children including the

respondent­defendant derived title over the property. It is the

further case of the respondent­defendant that a suit bearing

O.S. No. 47 of 1983 was filed in respect of a portion of the said

property. It is his case that an Advocate Commissioner had

prepared plan and report of the disputed property in that suit.

It is the case of the respondent­defendant that as per the

judgment and decree passed in the said suit as well as by the

learned Appellate Court, it was held that the marginally noted

5
property belonged to the respondent­defendant and other legal

heirs of deceased Othenan. It is the case of the respondent­

defendant that the legal heirs of the said Othenan had

partitioned their property by registered partition deed dated 4 th

February 1999 and the marginally noted property was allotted

jointly to the respondent­defendant, his sister Geetha and

brother Ramesan as Item No. 2 in B, C and D schedules of the

partition deed. The respondent­defendant has therefore denied

the claim of the appellant­plaintiff and prayed for dismissal of

the suit.

6. On the basis of the rival pleadings, the following issues

came to be framed by the learned trial court:­

(i) What is the correct identity of the plaint schedule
property?

(ii) Whether the plaintiff has possession over the
plaint schedule property?

(iii) Whether the cause of action alleged is true?

(iv) Whether the plaintiff is entitled to get a decree for
injunction as prayed for?

6
 (v) Relief and costs?

7. After considering the evidence led on behalf of the parties,

the learned trial judge decreed the suit vide judgment and

decree dated 7th March 2003. Being aggrieved thereby, the

respondent­defendant preferred an appeal before the Additional

District and Sessions Judge, Vadakara being Appeal Suit No.

43 of 2003. The learned Appellate Court dismissed the appeal.

Being aggrieved thereby, the respondent­defendant preferred

Second Appeal to the High Court. By the impugned judgment

and order dated 21st August 2019, the same was allowed by the

High Court and the suit is remanded to learned trial court for

deciding afresh with liberty to parties to amend the pleading. A

review petition was also filed by the respondent­defendant

seeking review of the order of the High Court dated 21 st August

2019. The said review petition came to be dismissed by the

High Court vide order dated 10th February 2020. Being

aggrieved thereby, the present appeals.

7
8. Shri P.N. Ravindran, learned Senior Counsel appearing on

behalf of the appellant­plaintiff submitted that the High Court

has grossly erred in setting aside the concurrent findings of fact

recorded by the learned trial court as well as the learned

Appellate Court. He submitted that on the basis of the report of

the Advocate Commissioner, the learned trial court as well as

the learned Appellate Court has found that the appellant­

plaintiff has successfully proved his possession over the suit

property and therefore, have rightly decreed the suit and

dismissed the appeal. The learned Senior Counsel, relying on

the judgment of this Court in the case of Anathula Sudhakar

v. P. Buchi Reddy (dead) by LRs. and Others1, would submit

that since the suit was for injunction simpliciter, the issue of

title was not directly and substantially in issue and therefore,

the suit, as filed by the appellant­plaintiff, was very much

maintainable. He submitted that the High Court has grossly

erred in holding that the suit, as filed by the appellant­plaintiff,

was not maintainable.
1 (2008) 4 SCC 594

8
9. Per contra, Shri V. Chitambaresh, learned Senior Counsel

appearing on behalf of the respondent­defendant submitted

that even from the report of the Advocate Commissioner, it

could be seen that the identification of the property was not

beyond doubt. He submitted that the learned trial court as well

as the learned Appellate Court had grossly erred in decreeing

the suit inasmuch as it could not be said that the title of the

appellant­plaintiff was clear. He also relied on the judgment of

this Court in the case of Anathula Sudhakar (supra).

10. The short question that falls for consideration before us is:

Whether the learned Single Judge of the High Court was

right in holding that the suit simpliciter for permanent

injunction without claiming declaration of title, as filed by the

plaintiff, was not maintainable?

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:­

9
“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
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 the
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 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

10
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

11
 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 plaintiff’s 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

12
the normal rule that question of title will not be decided in suits

for injunction.

14. In this background, we will have to consider the facts of

the present case.

15. From the perusal of the pleadings, it could be seen that it

is the case of the appellant­plaintiff that he derives the title to

the suit property on the basis of registered assignment deed No.

110 of 1977. It is the appellant­plaintiff’s case that he is in

exclusive possession of the said property. Per contra, it is the

claim of the respondent­defendant that the property shown in

the margin of the written statement to an extent of 52 ½ cents

belongs to the respondent­defendant 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 appellant­plaintiff. 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

13
title of Puthiyottil Kanaran under Exhibit­A15 is referable to

Exhibit­A14 i.e. Document No. 2987 of 1924. It is the specific

case of the respondent­defendant 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

14
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 respondent­defendant claims title over the

15
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

appellant­plaintiff 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 appellant­plaintiff can be said to have a clear title over the

suit property or that there is no cloud on appellant­plaintiff’s

title over the suit property. There is a serious dispute between

the appellant­plaintiff and respondent­defendant 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 full­fledged 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

16
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 Another2:

2 (2019) 17 SCC 692

17
 “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 appellant­plaintiff 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

respondent­defendant. 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.

22. The appeals are therefore dismissed. However, taking into

consideration the fact that the suit is pending since 2003, we

18
direct the learned trial court to try and decide the suit as

expeditiously as possible and preferably within a period of one

year from the date of this judgment. Pending application(s), if

any, shall stand disposed of. No order as to costs.

….…..……………………..J.
[L. NAGESWARA RAO]

………………………….J.
[B.R. GAVAI]

NEW DELHI;
SEPTEMBER 07, 2021.

19