Whether the suit for injunction simpliciter without seeking for declaration was competent? Not necessary on mere denial of title - 2023:APHC:34348
23. The issue involved was very simple. The plaintiff claimed
title based on the registered sale deed dated 25.09.1996. The
title of the petitioner’s vendor was not in dispute. The appellants
claimed title based on the registered sale deed in their favour
dated 25.02.2008 executed by the power of attorney holder of
the same vendor. The plaintiff as also the defendants are not at
issue that Gogineni Venkataramana was the owner. The
registered sale deed in favour of the plaintiff dated 25.09.1996
is prior in point of time than the sale deed in favour of the
defendants dated 25.02.2008. The suit did not involve a
14
complicated question on title. Nor the appellants’ sale deed
dated 25.02.2008 could be considered as casting cloud on the
title of the plaintiff based on her earlier registered sale deed
dated 25.09.1996. The appellants, merely by disputing the
petitioner’s sale deed that it was not signed by the plaintiff’s
vendor because he used to sign in English, in the view of this
Court cannot be considered to caste cloud on the plaintiffs title,
so as to direct the plaintiff to seek the costlier and more
cumbersome remedy of relief of declaration. The learned Trial
Court has carefully exercised the discretion vested in it in terms
of Para 21 (d) of Anathula Sudhakar (supra).
*HON’BLE SRI JUSTICE RAVI NATH TILHARI
+SECOND APPEAL No.395 OF 2023
%21.09.2023
#Raavi Venkateswara Rao,
S/o. R. Anjaneyulu,
Hindu, aged about 78 years,
R/o. D.No. 5-87-65A,
Lakshmipuram Main Road,
3/1, Chandramouli Nagar,
Guntur Town & District
and others.
……Appellants/
Appellants/Defendants
And:
$1. Ellanti Nirmala,
W/o. Murali,
Hindu, aged about 55 years,
R/o. D.No.1-207,
Veluru Village,
Pichatur Mandal,
Chittoor District
and others.
….Respondents/
Respondents/Plaintiffs
!Counsel for the plaintiffs : Sri Sasanka Bhuvanagiri,
learned counsel,
representing Sri Alapati
Lalith Nikhil, learned
counsel for the appellants
^Counsel for the respondents :
<Gist:
>Head Note:
? Cases referred:
1. (2008) 4 SCC 594
2. (2019) 17 SCC 692
3. (2020) 19 SCC 57
4. (2015) 16 SCC 540
2
HIGH COURT OF ANDHRA PRADESH
SECOND APPEAL No.395 OF 2023
Raavi Venkateswara Rao,
S/o. R. Anjaneyulu,
Hindu, aged about 78 years,
R/o. D.No. 5-87-65A,
Lakshmipuram Main Road,
3/1, Chandramouli Nagar,
Guntur Town & District
and others.
……Appellants/
Appellants/Defendants
And:
1. Ellanti Nirmala,
W/o. Murali,
Hindu, aged about 55 years,
R/o. D.No.1-207,
Veluru Village,
Pichatur Mandal,
Chittoor District
and others.
….Respondents/
Respondents/Plaintiffs
DATE OF JUDGMENT PRONOUNCED: 21.09.2023.
3
SUBMITTED FOR APPROVAL:
THE HON’BLE SRI JUSTICE RAVI NATH TILHARI
1. Whether Reporters of Local newspapers may be
Allowed to see the judgments? Yes/No
2. Whether the copies of judgment may be marked
to Law Reporters/Journals? Yes/No
3. Whether Your Lordships wish to see the fair
Copy of the Judgment?
Yes/No
________________________
RAVI NATH TILHARI, J
4
THE HON’BLE SRI JUSTICE RAVI NATH TILHARI
SECOND APPEAL No.395 of 2023
JUDGMENT:- (per Hon’ble Sri Justice Ravi Nath Tilhari)
1. Heard Sri Sasanka Bhuvanagiri, learned counsel,
representing Sri Alapati Lalith Nikhil, learned counsel for the
appellants.
2. This Second Appeal under Section 100 of the Code of Civil
Procedure (C.P.C) by the defendant/appellants arises out of
O.S.No.238 of 2012 on the file of the I Additional Junior Civil
Judge, Tirupati which was decreed vide the judgment/decree
dated 07.01.2017 and was affirmed in A.S.No.126 of 2017 vide
judgment/decree dated 13.03.2023 passed by the V Additional
District Judge, Tirupati dismissing the appeal of the present
appellants.
3. The plaintiff/respondent No.1 namely Ellanti Nirmala filed
O.S.No.238 of 2012 for permanent injunction restraining the
defendants therein (the present appellants and the respondent
No.2) and their men etc. from, in any way interfering with the
plaintiff's peaceful possession and enjoyment of the plaint
scheduled property.
4. The plaintiff's case was that originally the property of an
extent of Ac. 2.75 cents in Sy.No.11/2B 2 of No.9, Akkarampalli
5
Revenue Village accounts was the absolute property of one
Pedirappagari Kamalamma. She was in possession and
enjoyment and sold it out to one Marisetti Venkatachalam
under a registered sale deed dated 15.06.1981 for consideration
and also delivered possession to him. Subsequently,
M. Venkatachalam sold out, to an extent of Ac. 0.10 1/3rd cents
out Ac. 2.75 cents with specific boundaries in Sy.No.11/2B 2 in
favour of one Gogineni Venkataramana and he sold out the site
measuring 2240 sq.ft with specific boundaries and
measurements as mentioned in the plaint schedule property in
favour of the plaintiff under the registered sale deed dated
25.09.1996. The plaintiff has been in possession and enjoyment
of the plaint schedule property without any interruption from
anybody. The defendants are no way concerned with the plaint
scheduled property but high handedly made a forcible attempt
on 03.06.2012 to grab while the plaintiff was attempting to
fence the plaint scheduled property with barbed wire.
Consequently the plaintiff had to file the suit.
5. The defendants filed written statement. Their pleading
inter alia is that one Gogineni Venkataramana purchased the
suit scheduled property under a registered sale deed dated
23.01.1984 from his vendor Marisetti Venkatachalam.
Subsequently, Marisetti Venkatachalam executed registered
6
General Power of Attorney (GPA) in favour of the 2nd defendant
on 14.11.2007. Pursuant of the registered General Power of
Attorney, the power of attorney holder executed a registered sale
deed in favour of the 1st and the 3rd defendants under a
registered sale deed on 25.02.2008 and also delivered
possession to them, and since then they have been in
possession and enjoyment of the property without any
interruption. The 1st defendant purchased the property situated
on the southern side. Even prior thereto the 1st defendant had
purchased a vacant site under a registered sale deed. The
1st defendant and the 3rd defendant constructed a compound
with cement bricks with a height of 5 feet for all three sites
owned by them. There are two sheds roofed with asbestos
cement sheds constructed by the 1st defendant on the said
compound and they are in possession and enjoyment of the suit
property without any interruption from anybody. With respect
to the sale deed in favour of the plaintiff, it was submitted that
it did not bear the signatures of Gogineni Venkataramana as he
used to sign in English only. The plaintiff’s registered sale deed
dated 25.09.1996 was pleaded to be created and fabricated with
forged signatures and by impersonation. It was also pleaded
that all the original title deeds were handed over to the 1st
defendant at the time of execution of registered sale deed in his
7
favour by Gogineni Venkataramana and those original deeds
were in their possession. It was also their case that the plaintiff
never entered into the possession of the plaint scheduled
property. The alleged interference by defendants was denied as
the plaintiffs imagination to grab the plaint scheduled property.
6. The suit against the 3rd defendant, the present respondent
No.2 was dismissed as per the order dated 21.08.2012.
7. The learned Trial Court framed the following issues:-
(1) Whether the plaintiff has been in possession and
enjoyment of the plaint schedule property as on the date
of filing of the suit?
(2) Whether the defendants have made any attempts to
dispossess the plaintiff from the plaint schedule property?
(3) Whether the plaintiff is entitled for grant of permanent
injunction in respect of the plaint schedule property?
(4) To what relief?
8. In evidence, on behalf of the plaintiff, PWs. 1 to 3 were
examined and Exhibits A.1 to A.4 were marked.
9. On behalf of the defendants, DWs. 1 and 2 were examined
and Exhibits B.1 to B.6 were marked.
10. On issue Nos.1 to 3, the learned Trial Court recorded
finding that the plaintiff succeeded in proving her possession
over the property as on the date of filing of the suit and the
defendants were interfering with her possession and enjoyment.
The Ex.A1, the registered sale deed in favour of the plaintiff was
unchallenged by the defendants, which was a document
8
executed and registered earlier in point of time to Ex.B2, the
registered sale deed dated 25.02.2008 in favour of the defendant
Nos.1 and 3 by the defendant No.2 and Ex.B3, the registered
general power of attorney dated 14.11.2007. The learned Trial
Court further observed that Ex.B3 could also not be proved.
11. In view of the findings on issue Nos.1, 2 and 3, the
learned Trial Court decreed the suit vide judgment and decree
dated 07.01.2017.
12. The defendant Nos.1 and 2 preferred A.S.No.126 of 2017.
The learned V Additional District Judge, Tirupati held that the
plaintiff was in possession of the suit property. It observed that
possession follows title and therefore the plaintiff was entitled to
protect her possession based on Ex.A1. The appellate court
dismissed the appeal of the appellants and confirmed the
judgment and decree of the learned Trial Court.
13. Learned counsel for the appellants raised the only point
that the plaintiff’s simple suit for injunction was not
maintainable. The plaintiff did not seek for declaration of her
title. He submitted that a complicated question of title was
involved in the suit and in view of the sale deed dated
25.02.2008 in favour of defendant Nos.1 and 3 a cloud was cast
over the plaintiff’s title. He submitted that, consequently, in
view of the law as laid down in Anathula Sudhakar v.
9
P. Buchi Reddy1, the suit for injunction simpliciter was not
maintainable nor could be decreed unless there was relief of
declaration of title in favour of the plaintiff/respondent.
14. I have considered the submissions advanced by the
learned counsel for the appellants and perused the material on
record.
15. The following point arises for consideration:-
Whether the suit for injunction simpliciter without
seeking for declaration was competent?
16. Learned counsel for the appellants submitted that simple
suit for injunction without seeking declaration was not
maintainable. Learned counsel for the appellants placed
reliance in Clause (b) of Para 21 of Anathula Sudhakar
(supra) to submit that since it was a suit for injunction
simpliciter with respect to vacant site, based on the title deed
with respect to which the defendants raised cloud, there should
have been a prayer for declaration of title also and in the
absence of such a prayer the Trial Court committed error of law
in decreeing the suit based on the sale deed.
17. The law is well settled, as to when simple suit for
injunction is maintainable and as to when the plaintiff has to
seek declaration of title as well.
1
(2008) 4 SCC 594
10
18. In Anathula Sudhakar (supra) the Hon’ble Apex Court
summarized the position, in regard to the suits for prohibitory
injunction relating to immovable property in Para 21 of the
report as under:-
“21. To summarize, the position in regard to suits for
prohibitory injunction relating to immovable property, is as
under:
(a) Where a cloud is raised over 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 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 regarding title (either specific, or implied
as noticed in Annaimuthu Thevar (supra)). Where the
averments regarding title are absent in a plaint and where
there is no issue relating to title, the court will not
11
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 will enquire into title and cases
where it will refer to plaintiff to a more comprehensive
declaratory suit, depending upon the facts of the case.”
19. In Para 21 (b) of Anathula Sudhakar (supra) it was held
that 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
12
directly or substantially arise for consideration, as without a
finding thereon, it will not be possible to decide the issue of
possession. The law as summarized in Anathula Sudhakar
(supra) has to be considered keeping in view all the clauses (a)
to (d), and clause (b) is not to be read in isolation. It was held in
clear terms in clause (d) that “But persons having clear title and
possession seeking 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 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.”
20. In Jharkhand State Housing Board v. Didar Singh2,
the Hon’ble Apex Court held that in each and every case where
the defendant disputes the title of the plaintiff it is not
necessary that in all those cases the plaintiff has to seek the
relief of declaration. It is further held that 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
2
(2019) 17 SCC 692
13
circumstances, the plaintiff cannot maintain a suit for bare
injunction.
21. In Para 11 of the Jharkhand State Housing Board
(supra) is reproduced as under:-
“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 the 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, the
plaintiff cannot maintain a suit for bare injunction.”
22. The suit was filed based on title to the property vide
registered sale deed dated 25.09.1996 and being in possession.
23. The issue involved was very simple. The plaintiff claimed
title based on the registered sale deed dated 25.09.1996. The
title of the petitioner’s vendor was not in dispute. The appellants
claimed title based on the registered sale deed in their favour
dated 25.02.2008 executed by the power of attorney holder of
the same vendor. The plaintiff as also the defendants are not at
issue that Gogineni Venkataramana was the owner. The
registered sale deed in favour of the plaintiff dated 25.09.1996
is prior in point of time than the sale deed in favour of the
defendants dated 25.02.2008. The suit did not involve a
14
complicated question on title. Nor the appellants’ sale deed
dated 25.02.2008 could be considered as casting cloud on the
title of the plaintiff based on her earlier registered sale deed
dated 25.09.1996. The appellants, merely by disputing the
petitioner’s sale deed that it was not signed by the plaintiff’s
vendor because he used to sign in English, in the view of this
Court cannot be considered to caste cloud on the plaintiffs title,
so as to direct the plaintiff to seek the costlier and more
cumbersome remedy of relief of declaration. The learned Trial
Court has carefully exercised the discretion vested in it in terms
of Para 21 (d) of Anathula Sudhakar (supra).
24. Learned Trial Court on consideration of the entire oral
and documentary evidence recorded finding that the plaintiff is
in possession of the plaint scheduled property. The learned
appellate court also affirmed the said finding. It also considered
the evidence on record and came to the same conclusion as
reached by the learned Trial Court. The finding on the point of
possession is a finding of fact. It is based on consideration of
the evidence on record by both the courts below. It is
concurrent finding of fact. In the exercise of second appellate
jurisdiction under Section 100 of the Code of Civil Procedure
such finding of fact is not open to interference by this Court.
15
25. In Nazir Mohamed v. J. Kamala and others3, the
Hon’ble Apex Court reiterated that in a Second Appeal the
jurisdiction of the High Court being confined to substantial
question of law, a finding of fact is not open to challenge in
second appeal, even if the appreciation of evidence is palpably
erroneous and the finding of fact incorrect.
26. In Nazir Mohamed (supra), it was further restated that
the general rule is, that the High Court will not interfere with
the concurrent findings of the Courts below. But it is not an
absolute rule. Some of the well-recognised exceptions are where
(i) the courts below have ignored material evidence or acted on
no evidence; (ii) the courts have drawn wrong inferences from
proved facts by applying the law erroneously; or (iii) the courts
have wrongly cast the burden of proof. A decision based on no
evidence, does not refer only to cases where there is a total
dearth of evidence, but also refers to case, where the evidence,
taken as a whole, is not reasonably capable of supporting the
finding.
27. It is apt to reproduce Paragraphs 28 to 33.4 as under:-
“28. To be “substantial”, a question of law must be
debatable, not previously settled by the law of the land or
any binding precedent, and must have a material bearing on
3
(2020) 19 SCC 57
16
the decision of the case and/or the rights of the parties before
it, if answered either way.
29. To be a question of law “involved in the case”, there
must be first, a foundation for it laid in the pleadings, and the
question should emerge from the sustainable findings of fact,
arrived at by courts of facts, and it must be necessary to
decide that question of law for a just and proper decision of
the case.
30. Where no such question of law, nor even a mixed
question of law and fact was urged before the trial court or
the first appellate court, as in this case, a second appeal
cannot be entertained, as held by this Court in Panchugopal
Barua v. Umesh Chandra Goswami [Panchugopal
Barua v. Umesh Chandra Goswami, (1997) 4 SCC 713] .
31. Whether a question of law is a substantial one and
whether such question is involved in the case or not, would
depend on the facts and circumstances of each case. The
paramount overall consideration is the need for striking a
judicious balance between the indispensable obligation to do
justice at all stages and the impelling necessity of avoiding
prolongation in the life of any lis. This proposition finds
support from Santosh Hazari v. Purushottam Tiwari [Santosh
Hazari v. Purushottam Tiwari, (2001) 3 SCC 179] .
32. In a second appeal, the jurisdiction of the High Court
being confined to substantial question of law, a finding of fact
is not open to challenge in second appeal, even if the
appreciation of evidence is palpably erroneous and the
finding of fact incorrect as held in V. Ramachandra
Ayyar v. Ramalingam Chettiar [V. Ramachandra
Ayyar v. Ramalingam Chettiar, AIR 1963 SC 302] . An
entirely new point, raised for the first time, before the High
Court, is not a question involved in the case, unless it goes to
the root of the matter.
17
33. The principles relating to Section 100 CPC relevant
for this case may be summarised thus:
33.1. An inference of fact from the recitals or contents of a
document is a question of fact, but the legal effect of the
terms of a document is a question of law. Construction of a
document, involving the application of any principle of law, is
also a question of law. Therefore, when there is
misconstruction of a document or wrong application of a
principle of law in construing a document, it gives rise to a
question of law.
33.2. The High Court should be satisfied that the case
involves a substantial question of law, and not a mere
question of law. A question of law having a material bearing
on the decision of the case (that is, a question, answer to
which affects the rights of parties to the suit) will be a
substantial question of law, if it is not covered by any specific
provisions of law or settled legal principle emerging from
binding precedents, and, involves a debatable legal issue.
33.3. A substantial question of law will also arise in a
contrary situation, where the legal position is clear, either on
account of express provisions of law or binding precedents,
but the court below has decided the matter, either ignoring or
acting contrary to such legal principle. In the second type of
cases, the substantial question of law arises not because the
law is still debatable, but because the decision rendered on a
material question, violates the settled position of law.
33.4. The general rule is, that the High Court will not
interfere with the concurrent findings of the courts below. But
it is not an absolute rule. Some of the well-recognised
exceptions are where : (i) the courts below have ignored
material evidence or acted on no evidence; (ii) the courts have
drawn wrong inferences from proved facts by applying the
law erroneously; or (iii) the courts have wrongly cast the
18
burden of proof. A decision based on no evidence, does not
refer only to cases where there is a total dearth of evidence,
but also refers to case, where the evidence, taken as a whole,
is not reasonably capable of supporting the finding.”
28. As aforesaid the finding on the point of plaintiffs
possession affirmed by the Appellate Court could not be shown
to be suffering from any of the infirmities on which the finding
of fact is open for challenge in the exercise of the second
appellate jurisdiction.
29. Even based simply on the finding of possession, the
plaintiffs suit for injunction was rightly decreed.
30. In Hari Narayan Bansal v. Dada Dev Mandir
Prabandhak Sabha4, the Hon’ble Apex Court has held that a
substantial question of law is not required to be framed if the
High Court decides to dismiss the second appeal at the
admission stage. Only in a case where the second appeal is
admitted or is decided finally by allowing the same, a
substantial question of law is required to be framed by the High
Court.
31. Para 3 of Hari Narayan Bansal (supra) is reproduced as
under:-
“3. In our opinion, a substantial question of law is not
required to be framed if the High Court decides to dismiss
4
(2015) 16 SCC 540
19
the second appeal at an admission stage. Only in a case
where the second appeal is admitted or is decided finally
by allowing the same, a substantial question of law is
required to be framed by the High Court. In the instant
case, no substantial question of law was involved in the
second appeal and therefore, the High Court had rightly
dismissed the second appeal at the admission stage by
passing the impugned order. We, therefore, see no reason
to entertain this petition.”
32. The learned Appellate Court did not commit any illegality
in affirming the decree of the learned Trial Court.
33. The second appeal does not involve any substantial
question of law.
34. The Second Appeal is dismissed at the admission stage.
No order as to costs.
As a sequel thereto, miscellaneous petitions, if any pending,
shall also stand closed.
__________________________
RAVI NATH TILHARI, J
Date: 21.09.2023
SCS
Note:-
L.R. Copy to be marked
20
105
THE HON’BLE SRI JUSTICE RAVI NATH TILHARI
SECOND APPEAL No.395 of 2023
Date: __________.2023
Scs
