suit for injunction - burden of prove- “15. It is trite law that, in a suit
for declaration of title, the burden always lies on the Plaintiff to make out
and establish a clear case for granting such a declaration and the weakness, if
any, of the case set up by the Defendants would not be a ground to grant relief to
the Plaintiff.”” There cannot be any dispute to the proposition laid down by this Court in the above cases. But coming to the facts in the present case the present suit giving rise to this appeal, was not a suit for declaration of title and possession rather the suit was filed for injunction. As noted above, the High Court has given cogent reasons for holding that the
suit filed by the plaintiff for injunction was maintainable without entering into the title of the
plaintiff in facts of the present case specially in view of the previous litigation which was initiated
at the instance of defendant No.1 where he lost the suit for declaration and recovery of possession of
the same property. The submission of learned counsel for the appellants that evidence filed by the
defendant were not looked into is not correct. The trial court as well as the High Court has looked into
not only the oral evidence but the exhibits which were filed on behalf of the defendant which is clear
from the discussion made by the High Court in paragraphs 13 and 16.
We do not find any error in the view of the High Court that it was not necessary to enter into the
validity of Exhibits A-1 and A-2 and the suit for injunction filed by the plaintiff deserved to be
decreed on the basis of admitted and established possession of the plaintiff. We, thus, do not find
any error in the judgment of the High Court allowing the second appeal filed by the plaintiff by setting
aside the judgment of the First Appellate Court and restoring that of trial court.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9472 of 2010
A.SUBRAMANIAN & ANR. ...APPELLANT(S)
VERSUS
R. PANNERSELVAM ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
This appeal has been filed by the defendants in
the civil suit challenging the judgment dated
28.04.2009 of Madras High Court in Second Appeal
No.39 of 2009 by which judgment the High Court had
allowed the second appeal of the plaintiff setting
aside the judgment of the First Appellate Court dated
26.11.2008 in A.S. No.172 of 2005 and restoring the
judgment dated 06.02.2004 in O.S.No.188 of 2002 of
the trial court decreeing the suit.
2. Parties shall be referred to as referred in the
2
Original Suit. Brief facts of the case giving rise to
this appeal are:
The plaintiff, R. Pannerselvam, who is the
respondent in this appeal, filed O.S. No.188 of 2002
in the Court of District Munsif, Namakkal praying for
permanent injunction interdicting the defendants from
disturbing the peaceful possession and enjoyment of
the plaintiff over the suit property. The suit
property was measuring 1777-1/2 sq.ft. comprising in
Survey No.172/1 situated at Kalappanaickenpatti
Village. Plaintiff’s case in the suit was that suit
property originally belonged to one Dhasi Naidu son
of Thalama Naidu who went to Sri Lanka as a Farm
Labour and died at Sri Lanka. The son of Dhasi Naidu,
Krishnasamy Naidu came to India in 1981 and entrusted
the suit property and other properties to one Ghani
Sahib, who had been managing and enjoying the
properties.
3. The plaintiff claimed to have purchased the suit
property by registered deed on 16.07.2001 for a valid
consideration from the descendants of Dhasi Naidu.
The plaintiff’s further case was that the first
3
defendant was formerly military serviceman, and the
second defendant who was son-in-law of the first
defendant, working as constable in police department,
attempted to disturb the plaintiff’s peaceful
possession and enjoyment over the suit property.
Hence, the suit was filed. The documents filed along
with the plaint were power of attorney executed by
legal heirs of Dhasi Naidu dated 22.05.2001, sale
deed dated 16.07.2001 and sale deed dated 14.03.1946
in favour of Dhasi Naidu and house tax receipt dated
27.02.2001.
4. Defendant No.1 filed written statement refuting
the claim of the plaintiff; defendant admitted that
suit property belonged to Dhasi Naidu. The defendant
pleaded that registered sale deed dated 16.07.2001
itself is a fabricated and forged one. So called
legal heirs-descendants of Dhasi Naidu as alleged in
sale deed are fictious and are not true legal heirs
of the said Dhasi Naidu. The title of the suit
property is itself questionable, the plaintiff along
with Ghani Sahib has fabricated two special powers
and plaintiff under Order VII Rule 14 of C.P.C. with
4
the said documents had filed suit. The defendants in
the written statement had set up the claim that Dhasi
Naidu’s son Sanjeevi Naidu had entrusted the suit
property and other properties to one P. Rangaraju
Naidu by a registered power of attorney, who later
died, leaving behind his only legal heir Mrs. Arjuna
Devi, who died leaving behind her daughters, Nalanda,
Indira and Gunabarathi. Defendant No.1 on behalf of
her three daughters filed a suit against the Ghani
Sahib questioning his tenancy which suit was
dismissed and had been taken in appeal being
A.S.No.297 of 1994.
5. The plaintiff examined himself as PW.1. Defendant
examined DW.1 to DW.6. Plaintiff filed seven
exhibits. The trial court framed the following three
issues:
“a) Is the permanent injunction sought for by
the plaintiff in the suit is available to him?
b) Is the statement of the defendants that
the plaintiff is not the real owner of the suit
property correct?
c) What are the other reliefs available to the
plaintiff?
6. The trial court held that power of attorney dated
5
22.05.2001 was prepared at Sri Lanka and registered
at Namakkal Sub-Registrar’s office. The documents
filed on behalf of the plaintiff are Exhibits PW1 and
PW2. The trial court held that the plaintiff has
right over the property, the possession of plaintiff
was also found proved. The trial court decreed the
suit.
7. The defendants filed an appeal before the Sub
Court, Namakkal being A.S. No.172 of 2005. The First
Appellate Court entered into the validity of power of
attorney Exhibits PW1 and PW2 and observed that
Exhibit PW1 is in circumstances by suspicious
surrounding. The First Appellate Court, however, came
to a conclusion that power deed written abroad need
not be registered. The First Appellate Court,
further, came to the conclusion that execution and
authentication of power of attorney, Exhibit PW1
having not been proved, the sale deed Exhibit PW2 is
also adversely affected. Hence, plaintiff has failed
to establish his title over the suit property. The
First Appellate Court has, further, found that
defendant No.1 had instituted O.S.No.524 of 1987
6
which was for the same property in which defendant
No.1 had claimed declaration and possession of the
property for himself and her three daughters which
suit having been dismissed, the defendant has also
not been able to prove that suit property belonged to
the three daughters of defendant No.1 and possession
lies with them. The First Appellate Court allowed the
appeal and set aside the decree on the ground that
plaintiff had failed to prove his title. Aggrieved by
the judgment of the First Appellate Court the
plaintiff has filed the second appeal.
8. The High Court vide its judgment dated 28.04.2009
allowed the second appeal by deciding three
substantial questions of law affirming the decree of
trial court granting injunction in favour of the
plaintiff. The High Court found that defendant having
filed Original Suit No.524 of 1987 for declaration
and recovery of possession of the suit property which
was dismissed by the trial court against which A.S.
No.297 of 1994 having also been dismissed, the
finality was achieved to the previous proceedings
that defendant has neither title nor in possession of
7
the suit property and the possession of the plaintiff
having been admitted by the defendant, the suit of
the plaintiff deserved to be decreed. The High Court
was further of the view that the First Appellate
Court ought not to have entered into the validity of
the Exhibits A-1 and A-2. The High Court allowed the
appeal. Aggrieved against the judgment of the High
Court, the defendants have come up in this appeal.
9. Ms. K. Abhirame, learned counsel has appeared on
behalf of the appellants and Shri V. Prabhakar,
learned counsel has appeared for the respondent.
10. Learned counsel for the appellants submits that
the plaintiff having claimed right to the suit
property on the basis of sale deed dated 16.07.2001
which sale deed was not found to be valid having not
been executed by proper power of attorney by the
heirs of Dhasi Naidu, the suit of the plaintiff
deserved to be dismissed. It is submitted that the
plaintiff can succeed in the suit on the strength of
his own case and the plaintiff cannot take any
advantage of the weakness of the case of the
defendants. Even defendants failed to prove their
8
title and possession the suit of the plaintiff could
not have been decreed mere on the fact that the
defendants failed to prove their title and
possession.
11. Learned counsel for the appellants further
submitted that the documents filed by the defendants
were not considered by the trial court as well as by
the High Court. Learned counsel for the appellant has
placed reliance on the judgments of this Court in
Nagar Palika, Jind vs. Jagat Singh, Advocate, (1995)
3 SCC 426; Yamuna Nagar Improvement Trust vs.
Khariati Lal, (2005) 10 SCC 30 and Jagdish Prasad
Patel (dead) Through Legal Representatives and
another vs. Shivnath and others, (2019) 6 SCC 82.
12. Shri V. Prabhakar, learned counsel appearing for
the respondent refuting the submission of the counsel
for the appellants contends that plaintiff has
successfully proved his possession which was also
admitted by the defendant in his statement, the suit
for injunction was rightly decreed by the trial
court. It is submitted that in essence the plaintiff
has also successfully proved his titled by registered
9
sale deed. The property was purchased by a registered
sale deed on the basis of power of attorney executed
by legal heirs of Dhasi Naidu. The power of attorney
having been prepared at Sri Lanka and registered by
Sub-Registrar Namakkal, First Appellate Court
committed error in holding the power of attorney not
properly executed and authenticated. It is submitted
that the plaintiff having demolished the old
structure which is proved from the evidence on
record, the possession of the plaintiff could not be
denied by the defendant. The defendant having filed
suit for declaration as well as recovery of
possession of the suit property against Ghani Sahib,
the manager of the property which suit having been
dismissed there is no right in the defendant to
resist the suit of the plaintiff.
13. We have considered the submission of the learned
counsel for the parties and have perused the records.
14. The plaintiff in his plaint claimed title and
possession, and sought restraining the defendants
from disturbing plaintiff’s peaceful possession and
enjoyment over the suit property. In the suit
10
plaintiff has prayed for the following reliefs:
a)by means of permanent injunction interdicting
the defendants, and their man from disturbing
the peaceful possession and enjoyment of the
plaintiff over the suit property in any
manner;
b)by granting further other relief or reliefs
as the Hon’ble Court deems fit in the
circumstances of the case;
c)awarding the cost of the suit by the
defendants and thus render justice.”
15. The trial court found that the plaintiff has
proved his right over the property as well as
possession, he was entitled for decree of injunction.
All the three courts have referred to the earlier
suit being O.S.No.524 of 1987 filed by the defendants
which suit was dismissed by the trial court and
appeal against which being A.S. No.297 of 1994 was
also dismissed which judgments were brought before
the trial court by the plaintiff. The copy of the
judgment dated 23.11.1992 in O.S. No.524 of 1987 of
the trial court has been brought on record as
Annexure P5. The suit was filed by defendant No.1
along with his three minor daughters and he being
11
father, guardian and next friend of daughters, the
plaintiff of O.S. No.524 of 1987 claimed title over
the suit property through Shri P. Rangaraju Naidu.
Ghani Sahib who was manager, was impleaded as
defendant and suit was filed for declaration and
possession and permanent injunction. The defendant
contested the suit where defendant took the plea that
the property belonged to Dhasi Naidu whose son
Krishnasamy Naidu, who came to India and executed
power of attorney in favour of defendant for managing
the suit property since then the defendant was in
possession and user. The trial court held that the
plaintiff has failed to prove his title as well as
possession. The possession of defendant was admitted
by Subramanian who was the plaintiff in the said
suit. In paragraph 11 of the judgment following was
held by the trial court:
“11.....In this suit, it has been admitted by
the plaintiffs that the defendant is in
possession of the suit properties. Under the
circumstances since the plaintiffs have
admitted that the defendant is in possession of
the suit properties, it is held that even
though the defendant has not produced the power
of attorney executed by Krishnasamy in favour
of defendant, in the deposition DW1 has made a
12
claim that the defendant is the power of
Krishnasamy is an acceptable one. From the
deposition of DW2, it is held that Dasi Naidu
died leaving behind Sanjeevi Naidu, Nallu Naidu
and Krishnasamy Naidu as his legal heirs.....
It is also held that the defendant is in
possession and managing the suit property in
his capacity as the power agent of Krishnasamy
and defendant is not a tenant in the suit
property and accordingly issue number 2 and 5
are answered respectively. ....”
16. The suit for declaration and possession filed by
Subramanian was dismissed against which A.S. No.297
of 1994 was filed which was dismissed by the District
Court, Salem on 08.09.1995.
17. The High Court in its judgment has rightly
referred to the earlier litigation and held that in
view of the findings in the earlier suit filed by
Subramanian and his three daughters it is sufficient
to hold that defendants are not in possession of the
suit property. The High Court has also rightly
observed that plaintiff’s possession is based on the
admission of the defendant himself made in the suit.
In paragraph 24, the High Court has held:
“24.....The Plaintiff’s possession is based on
admissions made by the defendants themselves
and also the factum of the previous
13
proceedings, which D-1 initiated and met with
his waterloo.”
18. The submission which has been made by the counsel
for the appellants is that in the suit, plaintiff has
claimed his title and possession, the High Court
committed error in not entering into the question of
title of plaintiff and without determining the title
of the plaintiff the suit ought not to have been
decreed. Learned counsel for the appellants has
placed reliance on the judgment of this Court in
Nagar Palika, Jind vs. Jagat Singh, Advocate, (1995)
3 SCC 426. In the above case suit was filed by the
respondent for injunction which was resisted by
Municipal Committee on the ground that the respondent
was neither the owner of the land in question nor was
he in possession. The trial court dismissed the suit.
The First Appellate Court had decreed the suit and
second appeal was dismissed by the High Court. Nagar
Palika filed appeal before this Court. The argument
was raised before this court by Nagar Palika that the
Court of law proceeded on the assumption that the
acquisition of title through the sale deed which has
14
not been produced before the High Court was admitted
fact in the case and had never been questioned by the
Municipal Committee. This Court in paragraph 6
disapproving the judgment of the First Appellate
Court held following:
“6. The counsel appearing for the
respondent, could not explain as to how in face
of such clear denial of the title and
possession of the respondent by the Municipal
Committee in its written statement, the Court
of Appeal proceeded on the assumption that the
acquisition of the title through the sale deed,
which had not been produced before the Court,
was an admitted fact in the case and had never
been questioned by the Municipal Committee.
According to us, when the Court of Appeal
proceeded to consider the evidence relating to
the possession of the respondent after the
alleged date of purchase by him through the
sale deed in question, which was never produced
before the Court, the Court of Appeal committed
a grave error. It never applied its mind to the
main issue, in a suit based on title, whether
the respondent had proved his title to the suit
property. It cannot be disputed that onus to
prove his title to the property in question was
on the said respondent. It further appears,
that on behalf of the appellant, it was pointed
out before the Court of Appeal that the said
respondent was claiming the share of one of the
co-shares in the patti, but no co-sharer can
convey title to a specific part of joint
property. However omitted to consider the basic
issues in the case, the Court of Appeal
proceeded only to consider the revenue records
from the year 1974-75 like jamabandhi for the
year 1974-75 and Khasra Girdwari pertaining to
the year 1977-79.”
15
19. In the suit stand was taken by the respondent
that the suit be treated under Section 6 of the
Specific Relief Act, 1963. This Court repelled the
above submission. In paragraph 9, the plea of
respondent based on Section 6 was rejected by this
Court by making following observation:
“9. We fail to appreciate as to how the
principle of Section 6 of Specific Relief Act,
1963 can be applied in the facts and
circumstances of the present case. The
respondent, who was the plaintiff, never
alleged that he had been dispossessed by the
appellant-Municipal Committee. On the other
hand, he claimed to be the owner of the land in
question and asserted that he was in possession
over the same. He sought for permanent
injunction restraining the appellant from
interfering with his possession. Both the
parties led evidences in support of their
respective claims including on the question of
title.”
20. In the present case the possession of the
plaintiff was upheld by the High Court on two main
reasons. Firstly, the defendant of the suit,
Subramanian had earlier filed a suit for recovery of
possession and declaration for the same property
against Ghani Sahib who was manager of the property
16
which suit was dismissed and recovery of possession
having been rejected, defendant cannot even make a
plea to be in possession and secondly defendant in
his cross-examination himself admitted that the
plaintiff after purchase had demolished the
construction. The High Court in paragraph 13 of its
judgment has extracted the relevant excerpts from the
statement of DW1’s deposition during crossexamination. In paragraph 13 of the judgment after
quoting from deposition of DW1, the High Court held:
“13.....A bare perusal of those excerpts would
clearly display as to how DW1(D1) went to the
extent of half-Heartedly admitting partly the
reality) and denied the rest of the truth,
without having any responsibility to speak
truth. For the purpose of achieving success in
the litigative battle, by hook or crook, D-1
went to the extent of pleading before this
Court quite antithetical to the Judgments and
decrees in O.S.No.524 of 1987 and in A.s.
No.297 of 1994 (Exs.A-3, A-5, A-6 and A-7) that
the previous suit was not for recovery of
possession of the suit property. But, those
judgments and decrees would clearly indicate
that the earlier suit was filed by D-1 and his
three children for declaration and recovery of
possession of the entire property including the
suit property. In the said previous suit, the
first defendant and his legal heirs contended
that they derived title from their original
porosities Rangarajulu Naidu and obtained the
suit property under a power deed and they
failed in both the courts. As such, that is
17
much more than sufficient to hold that the
defendants are not in possession of the suitproperty herein.”
21. The High Court was also right in its view that it
is a common principle of law that even trespasser,
who is in established possession of the property
could obtain injunction. However, the matter would be
different, if the plaintiff himself elaborates in the
plaint about title dispute and fails to make a prayer
for declaration of title along with injunction
relief. The High Court has rightly observed that a
bare perusal of the plaint would demonstrate that the
plaintiff has not narrated anything about the title
dispute obviously because of the fact that in the
previous litigation, DW1 failed to obtain any relief.
The High court has rightly observed that the
principle that plaintiff cannot seek for a bare
permanent injunction without seeking a prayer for
declaration is not applicable to the facts of the
present case.
22. We may also refer to judgment of this Court in
Nair Service Society Ltd. vs. K.C. Alexander and
18
others, AIR 1968 SC 1165, where three-Judge Bench of
this Court presided by Hidayatullah, J. has
reiterated the principle that possession is good
against all but the true owner. The principle
enumerated in judgment of Judicial Committee in Parry
v. Clissold, (1907) AC 73, was noticed in paragraph
17 to the following effect:
“(17) In our judgment this involves an
incorrect approach to our problem. To express
our meaning we may begin by reading 1907 AC 73,
to discover if the principle that possession is
good against all but the true owner has in any
way been departed from. 1907 AC 73 reaffirmed
the principle by stating quite clearly:
“It cannot be disputed that a person in
possession of land in the assumed character of
owner and exercising peaceably the ordinary
rights of ownership has a perfectly good title
against all the world but the rightful owner.
And if the rightful owner does not come forward
and assert his title by the process of law
within the period prescribed by the provisions
of the statute of Limitation applicable to the
case, his right is for ever extinguished and
the possessory owner acquires an absolute
title.”
23. In paragraph 22 of the judgment, the Bench
approved the dictum in 1907 AC 73.
24. Learned counsel for the appellants has also
referred to judgment of this Court in Ajendra
Prasadji Narendra Prasadji Pandey vs. Swami K.
19
Narayandasji and others, (2005)10 SCC 11, in which
case this Court elaborated the cumulative factor for
granting a temporary injunction which case is clearly
distinguishable and has no application in the present
case. Next judgment relied by the learned counsel for
the appellant is in Jagdish Prasad Patel (dead)
through Legal Representatives and another vs.
Shivnath and others, (2019) 6 SCC 82. In the above
case in the suit for declaration of title and
possession this Court reiterated the principle that
suit for declaration of title and possession the
plaintiffs will succeed on the strength of their own
title irrespective of whether defendants proved their
case or not. In paragraph 44 and 45 following was
laid down:
“44. In the suit for declaration for title
and possession, the Plaintiffs-Respondents
could succeed only on the strength of their own
title and not on the weakness of the case of
the Defendants-Appellants. The burden is on the
Plaintiffs-Respondents to establish their title
to the suit properties to show that they are
entitled for a decree for declaration. The
Plaintiffs-Respondents have neither produced
the title document i.e. patta-lease which the
Plaintiffs-Respondents are relying upon nor
proved their right by adducing any other
evidence. As noted above, the revenue entries
20
relied on by them are also held to be not
genuine. In any event, revenue entries for few
Khataunis are not proof of title; but are mere
statements for revenue purpose. They cannot
confer any right or title on the party relying
on them for proving their title.
45. Observing that in a suit for
declaration of title, the PlaintiffsRespondents are to succeed only on the strength
of their own title irrespective of whether the
Defendants-Appellants have proved their case or
not, in Union of India v. Vasavi Coop. Housing
Society Limited, (2014) 2 SCC 269, it was held
as underSCC p.275, para 15)
“15. It is trite law that, in a suit
for declaration of title, the burden
always lies on the Plaintiff to make out
and establish a clear case for granting
such a declaration and the weakness, if
any, of the case set up by the Defendants
would not be a ground to grant relief to
the Plaintiff.””
25. There cannot be any dispute to the proposition
laid down by this Court in the above cases. But
coming to the facts in the present case the present
suit giving rise to this appeal, was not a suit for
declaration of title and possession rather the suit
was filed for injunction. As noted above, the High
Court has given cogent reasons for holding that the
21
suit filed by the plaintiff for injunction was
maintainable without entering into the title of the
plaintiff in facts of the present case specially in
view of the previous litigation which was initiated
at the instance of defendant No.1 where he lost the
suit for declaration and recovery of possession of
the same property. The submission of learned counsel
for the appellants that evidence filed by the
defendant were not looked into is not correct. The
trial court as well as the High Court has looked into
not only the oral evidence but the exhibits which
were filed on behalf of the defendant which is clear
from the discussion made by the High Court in
paragraphs 13 and 16.
26. We do not find any error in the view of the High
Court that it was not necessary to enter into the
validity of Exhibits A-1 and A-2 and the suit for
injunction filed by the plaintiff deserved to be
decreed on the basis of admitted and established
possession of the plaintiff. We, thus, do not find
any error in the judgment of the High Court allowing
the second appeal filed by the plaintiff by setting
22
aside the judgment of the First Appellate Court and
restoring that of trial court.
27. In the result, the appeal is dismissed.
......................J.
( ASHOK BHUSHAN )
......................J.
( R. SUBHASH REDDY )
......................J.
( M.R. SHAH )
New Delhi,
February 08, 2021.
