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Friday, April 21, 2017

Was it a suit for grant of permanent injunction simpliciter or a suit to seek a declaration of title with consequential relief of grant of permanent injunction in relation to the suit land? - The issue, in our view, was required to be examined by the High Court keeping in view the law laid down by this Court in the case of Anathula Sudhakar vs. P. Buchi Reddy(Dead) by L.Rs. & Ors., 2008(4) SCC 594. It was, however, not done.-The suit being one for perpetual injunction, whether investigation into the question of title was necessary or called for? - Whether, in view of the evidence, including the Commissioner’s report, the Appellate Court was justified in coming to the conclusion that the appellants had no possession?”

                          Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No.5459 OF 2007


Velayudhan & Ors.                        ….Appellant(s)

                                   VERSUS

Mohammedkutty & Ors.                 …Respondent(s)



                               J U D G M E N T

Abhay Manohar Sapre, J.
1)    This appeal is filed by the defendants against the final judgment  and
order dated 08.03.2006 passed by the High Court of Kerala in S.A.  No.180  &
475/1992 whereby the High Court allowed the  second  appeals  filed  by  the
plaintiffs-respondents herein and set aside the judgment  and  decree  dated
26.07.1991 of the Subordinate Judge, Tirur in A.S. Nos. 83 & 84 of 1988  and
restored the judgment dated 30.09.1988 of the Munsif  of  Parappanangadi  in
O.S. No. 177 of 1983.
2)    We need not burden our judgment by  mentioning  the  facts  in  detail
except to the extent necessary to  appreciate  the  issue  involved  in  the
appeal.
3)    The appellants herein are the defendants whereas the  respondents  are
the plaintiffs in a suit out of which this appeal arises.
4)    The respondents filed a civil suit in relation to  the  suit  land  as
described in detail in schedule to the plaint against the appellants  before
the Munsif of Parappanangadi. The  Munsif  Court  decreed  the  respondents’
suit against  the  appellants  and  passed  the  decree  as  prayed  by  the
plaintiffs.
5)    The defendants, felt aggrieved, filed the  first  appeals  before  the
Subordinate Judge Tirur. The first appellate Court allowed the  appeals  and
dismissed the suit. The respondents, felt aggrieved,  filed  Second  Appeals
under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred  to
as “the Code”). The High Court admitted the appeals  on  the  following  two
substantial questions of law:
“1.  The suit being one  for  perpetual  injunction,  whether  investigation
into the question of title was necessary or called for?

2.  Whether, in view of the evidence, including the  Commissioner’s  report,
the Appellate Court was justified in  coming  to  the  conclusion  that  the
appellants had no possession?”

 6)   By impugned order, the  High  Court  allowed  the  appeals  and  while
reversing the judgment and decree of  the  first  appellate  Court  restored
that of the Trial Court, which had decreed  the  respondents’  suit.  It  is
against this order of the High Court,  the  defendants  felt  aggrieved  and
filed this appeal by way of special leave before this Court.
7)    Heard Mr. M.K.S. Menon, learned counsel for the appellants and Mr.  K.
Rajeev, learned counsel for the respondents.
8)    Having heard learned counsel for the parties and  on  perusal  of  the
record of the case, we are inclined to allow the appeal in  part  and  while
setting aside of the impugned order consider it just and proper and  in  the
interest of all parties concerned to remand the case to the High  Court  for
deciding the plaintiffs’ Second Appeals afresh on merits  by  reframing  the
fresh substantial questions of law.
9)    In our considered opinion, the need to remand the  case  to  the  High
Court for deciding the Second Appeals afresh  has  arisen  because  we  find
that the High Court proceeded on the assumption that the  Civil  Suit  filed
by the respondents out of which this appeal arises is essentially for  grant
of permanent injunction simpliciter.  It  would  be  clear  from  the  first
substantial question of law framed by the High Court quoted supra.
10)   One of the questions, which fell for consideration  before  the  first
and second appellate Court was regarding the nature of  the  Suit  filed  by
the respondents and the reliefs claimed therein.
11)   Was it a suit for grant of permanent injunction simpliciter or a  suit
to seek a declaration  of  title  with  consequential  relief  of  grant  of
permanent injunction in relation to the suit land?
12)   On perusal of the plaint, we find that the plaintiffs  asked  for  the
following reliefs:
“A.   Issue an order of injunction preventing defendants or their  men  from
entering into or taking any usufructs from the plaint schedule  property  or
from  doing  anything  detrimental  to  the  title  and  possession  of  the
plaintiffs.

B.    Direct the defendants to pay all costs in the suit.

Such other or further orders be passed in the suit.”

13)   Reading the expression "or from  doing  anything  detrimental  to  the
title and possession of the plaintiffs" in  prayer  clause  A  quoted  above
would show that the plaintiffs have also expressed apprehension in  relation
to their title over the suit properties.
14)   Keeping in view the averments made in Para 1 of the plaint  read  with
aforementioned words of the prayer clause,  we  are  of  the  view  that  it
cannot be said that the Suit is  only  for  grant  of  permanent  injunction
simpliciter. In other words, the issue  of  title  having  surfaced  in  the
relief clause, the same is of some  significance  over  the  rights  of  the
parties while considering the grant of the reliefs.
15)   In our considered opinion, the reading of the plaint  as  a  whole  in
the context of the reliefs claimed therein would go to show that  the  issue
of title is not wholly foreign to the  controversy  and  is  relevant  while
considering the grant of permanent injunction.
16)   It is true that the relief clause in the plaint is not happily  worded
but, as observed supra, reading the plaint as  a  whole  along  with  relief
clause does support our observations.
17)   Since the High Court proceeded to decide the appeals in the  light  of
first substantial question of law and  hence  it  committed  an  error.  The
first error was in  framing  the  wrong  question  and  the  second  was  in
proceeding to examine the said question.
18)   The issue, in our view, was required to be examined by the High  Court
keeping in view the law laid down by this Court  in  the  case  of  Anathula
Sudhakar vs. P. Buchi Reddy(Dead) by L.Rs. &  Ors.,  2008(4)  SCC  594.   It
was, however, not done.
19)   It is due to the aforesaid reasons, we are of  the  view  that  matter
needs a fresh look by the High Court on the questions  which  arise  in  the
case.
20)   In the light of foregoing discussion, we allow  the  appeal  in  part,
set aside the impugned judgment and remand the case to  the  High  Court  to
decide the appeal afresh after reframing the  proper  substantial  questions
of law keeping in view the pleadings and the  findings  of  the  two  Courts
below as required under Section 100 of the Code.
21)   Since the appeal is quite old, we request the  High  Court  to  decide
the appeal expeditiously.


………...................................J.
                                  [R.K. AGRAWAL]


…...……..................................J.
                                [ABHAY MANOHAR SAPRE]
      New Delhi;
April 18, 2017
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