Order VI Rule 17 CPC permits amendment of pleadings at any stage, including after commencement of trial, subject to due diligence. No statutory limitation period exists for filing amendment applications. Amendments to written statements are to be considered liberally, even permitting additional grounds of defence. Where amendment merely elaborates an existing defence and relates to the real controversy, it ought to be allowed. A plea that suit for injunction is not maintainable without declaration of title is not a new defence when title dispute already exists in pleadings. Supervisory jurisdiction under Article 227 cannot be exercised to upset a discretionary order passed on correct legal principles.

 

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Constitution of India — Article 227

Supervisory jurisdiction — Scope.

Interference under Article 227 is permissible only where the subordinate court’s order suffers from patent illegality, jurisdictional error, or perversity.
Discretionary orders passed in accordance with settled principles of law do not warrant interference.
(Paras 7, 14)

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Civil Procedure Code, 1908 — Order VI Rule 17

Amendment of pleadings — Scope — Liberal approach.

Order VI Rule 17 CPC empowers the Court to permit amendment of pleadings at any stage of the proceedings if such amendment is necessary for determining the real controversy between the parties.
(Paras 8–9)

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Amendment after commencement of trial

Due diligence — Meaning and application.

Even after commencement of trial, amendment is permissible provided the Court is satisfied that despite due diligence, the party could not raise the matter earlier.
There is no absolute bar against amendment after commencement of trial.
(Para 10)

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Delay in seeking amendment

No limitation prescribed.

Neither the Code of Civil Procedure nor the Limitation Act prescribes any limitation period for filing an application under Order VI Rule 17 CPC.
Filing an amendment application after three years and seven months cannot by itself be treated as belated.
(Para 9)

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Written statement — Amendment — Liberal consideration

Amendment of a written statement stands on a more liberal footing than amendment of plaint.
The defendant is entitled even to take additional or alternative grounds of defence.
(Para 13)

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Amendment — Elaboration of existing pleadings

Where the proposed amendment merely elaborates or clarifies the defence already taken in the written statement, such amendment does not change the nature of defence and is liable to be allowed.
(Paras 4, 12)

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Property dispute — Identity of property

Where the dispute primarily concerns:

• identity of the suit property,
• boundaries, and
• existence or non-existence of access road,

amendment explaining layout plans, master plans and plot boundaries directly relates to the real controversy and is permissible.
(Paras 10–12)

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Advocate Commissioner — Dismissal — Effect

Dismissal of an earlier application for appointment of an Advocate Commissioner does not bar a party from seeking amendment of pleadings to clarify facts relating to identity of property.
(Para 12)

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Prejudice — Test

Amendment cannot be rejected unless it causes serious prejudice to the opposite party or deprives that party of a valuable accrued right.
Where plaintiff already had to meet the plea of title dispute, elaboration of the same defence causes no prejudice.
(Paras 12–13)

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Injunction suit — Plea regarding declaration of title

Where the original written statement itself disputes plaintiff’s title, an additional plea that the suit is not maintainable without declaration of title does not introduce a new defence.
Such plea is only a legal consequence of the existing defence.
(Para 13)

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Discretion of trial court

Trial court has wide discretionary power in allowing amendments of pleadings.
So long as the discretion is exercised judicially and on sound reasoning, it does not call for interference under Article 227.
(Paras 12–14)

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Supreme Court precedent — Baldev Singh v. Manohar Singh

Trial courts are empowered to permit even new grounds of defence in amendments to written statements.
(Para 13)

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RATIO DECIDENDI

1. Order VI Rule 17 CPC permits amendment of pleadings at any stage, including after commencement of trial, subject to due diligence.

2. No statutory limitation period exists for filing amendment applications.

3. Amendments to written statements are to be considered liberally, even permitting additional grounds of defence.

4. Where amendment merely elaborates an existing defence and relates to the real controversy, it ought to be allowed.

5. A plea that suit for injunction is not maintainable without declaration of title is not a new defence when title dispute already exists in pleadings.

6. Supervisory jurisdiction under Article 227 cannot be exercised to upset a discretionary order passed on correct legal principles.

Under Mohammedan Law, oral gift (hiba) is valid without registration if declaration, acceptance and delivery of possession are proved. Concept of joint family property is unknown to Mohammedan Law. Suit for mandatory injunction and recovery of possession is maintainable without declaration of title unless a genuine cloud over title is established. Constructive possession is sufficient delivery of possession for validity of Muslim gift. A plea not raised in the written statement cannot be permitted to be raised for the first time in second appeal. Concurrent findings of fact based on proper appreciation of evidence are not open to interference under Section 100 CPC.

 

Civil Procedure Code, 1908 — Section 100 — Second Appeal

Scope — Concurrent findings — Interference.

Second appeal lies only on substantial question of law.
High Court cannot re-appreciate evidence or substitute its own findings where the trial court and first appellate court have recorded concurrent findings of fact based on proper appreciation of evidence.
(Paras 13–16, 28)

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Substantial Question of Law — Test

A question of law becomes “substantial” only when it:

• directly and substantially affects rights of parties,
• is not finally settled by superior courts, or
• is open to serious debate.

Mere re-appreciation of evidence does not give rise to a substantial question of law.
(Paras 13–15)

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Mandatory Injunction — Maintainability

Mandatory injunction and recovery of possession — Declaration not always mandatory.

A suit for mandatory injunction and recovery of possession is maintainable without seeking declaration of title where:

• plaintiff establishes lawful right and possession, and
• defendant fails to raise a genuine cloud over title.

(Paras 24–26)

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Injunction suit — Title dispute — Principles

A plaintiff need not seek declaration of title in every case where defendant disputes title.
Declaration becomes necessary only where the defendant raises a genuine and substantial cloud over the plaintiff’s title.
(Para 25)

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Mohammedan Law — Joint family property

Concept of joint family unknown.

Under Mohammedan Law:

• concept of Hindu joint family property does not exist,
• property held by a Muslim is individual property unless proved otherwise.

Plea of joint family property among Muslims is legally unsustainable.
(Paras 21, 25)

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Mohammedan Law — Gift (Hiba)

Oral gift — Validity — Essentials.

Under Mohammedan Law:

• gift need not be in writing,
• registration is not mandatory,
• oral gift is valid if three essentials are satisfied:

(i) declaration by donor,
(ii) acceptance by donee, and
(iii) delivery of possession — actual or constructive.

(Paras 21–24, 27)

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Oral gift — Proof

Oral gift is proved where:

• donor communicates gift to donee,
• donor informs third parties including defendant,
• written communication and legal notice confirm the gift, and
• donor and donee jointly institute the suit.

(Paras 22–24)

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Delivery of possession — Constructive possession

Actual physical delivery is not mandatory in every case.
Constructive possession is sufficient where donor retains control and permits donee to assert ownership.
(Paras 24, 27)

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Registered document — Thirty years old

A registered document more than thirty years old carries presumption of validity and does not require strict proof under the Evidence Act.
(Para 21)

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Licence — Revocation

Where defendant is permitted to occupy property by way of licence, upon revocation of licence, continued occupation becomes unlawful and possession must be restored to the rightful owner.
(Paras 6, 24)

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Pleadings — Absence of plea — Effect

Where defendant has not pleaded in written statement that suit is not maintainable without declaration of title, such plea cannot be raised for the first time in second appeal after suffering concurrent decrees.
(Para 26)

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Admissions and conduct — Evidentiary value

Conduct of parties, acceptance of legal notice, and absence of rebuttal support plaintiff’s claim of gift and lawful possession.
(Paras 22–24)

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Concurrent findings — Finality

Where both courts below have:

• properly framed issues,
• appreciated oral and documentary evidence, and
• applied settled legal principles,

their concurrent findings do not warrant interference under Section 100 CPC.
(Paras 16, 28)

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RATIO DECIDENDI

1. Under Mohammedan Law, oral gift (hiba) is valid without registration if declaration, acceptance and delivery of possession are proved.

2. Concept of joint family property is unknown to Mohammedan Law.

3. Suit for mandatory injunction and recovery of possession is maintainable without declaration of title unless a genuine cloud over title is established.

4. Constructive possession is sufficient delivery of possession for validity of Muslim gift.

5. A plea not raised in the written statement cannot be permitted to be raised for the first time in second appeal.

6. Concurrent findings of fact based on proper appreciation of evidence are not open to interference under Section 100 CPC.

When title is seriously disputed and under cloud, a suit for bare permanent injunction is not maintainable without declaration of title. In injunction suits, the burden lies entirely on the plaintiff to prove lawful possession as on the date of suit. Sale deed and pattadar passbook alone are insufficient to establish possession of agricultural land in the absence of revenue adangals. Courts below commit perversity when they ignore material admissions and documentary evidence. Wrong casting of burden of proof constitutes a substantial question of law under Section 100 CPC. Concurrent findings based on misreading or non-consideration of evidence are open to interference in second appeal.

 

Civil Procedure Code, 1908 — Section 100 — Second Appeal

Scope of interference — Concurrent findings — Exceptions.

Though ordinarily the High Court will not interfere with concurrent findings of fact, such findings are liable to be interfered with in second appeal where:

(i) material evidence is ignored,
(ii) findings are based on no evidence or mis-reading of documentary evidence, or
(iii) burden of proof is wrongly cast.

(Paras 14–15, 30–31)

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Suit for Permanent Injunction — Maintainability

Bare injunction — Cloud over title — Declaration mandatory.

Where there exists a serious dispute regarding title and the plaintiff’s title is under cloud, a mere suit for permanent injunction is not maintainable without seeking the relief of declaration of title.
(Paras 25, 32)

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Injunction simpliciter — Principles

A suit for injunction simpliciter is maintainable only where:

• plaintiff is in lawful possession, and
• defendant fails to establish a better title.

A person in wrongful or doubtful possession is not entitled to injunction against the true owner.
(Paras 20–21)

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Title dispute — Husband and wife vendors — Complicated questions of law

Where:

• plaintiff’s vendor and defendant’s vendor are husband and wife,
• both claim title through the same original owner, and
• competing registered sale deeds exist,

the dispute involves complicated questions of fact and law, requiring adjudication through a comprehensive declaratory suit.
(Paras 17, 25)

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Burden of proof — Injunction suit

In a suit for permanent injunction, the burden lies on the plaintiff to prove lawful possession as on the date of suit.
The burden cannot be shifted on the defendant to prove his possession.
(Paras 21, 27)

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Possession — Proof — Revenue records

Possession of agricultural land must be established by reliable evidence such as:

• revenue adangals,
• land revenue receipts, or
• proof of actual cultivation.

Mere production of sale deed, pattadar passbook or title deed is not conclusive proof of possession.
(Paras 21–24, 26)

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Revenue entries — Evidentiary value

Mutation entries and pattadar passbooks only enable payment of land revenue and do not, by themselves, establish title or possession.
(Para 23)

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Failure to produce revenue adangals — Adverse inference

Where plaintiffs claim cultivation of wet land but fail to produce revenue adangals or land revenue receipts, adverse inference must be drawn against their claim of possession.
(Paras 22–24)

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Trial Court — Framing of issues

Failure of the trial court to frame an issue regarding maintainability of suit for bare injunction, despite specific plea of title dispute in the written statement, vitiates the judgment.
(Para 25(iv))

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First Appellate Court — Error of law

First appellate court committed perversity by:

• ignoring material documentary evidence,
• not considering existence of cloud over title, and
• wrongly shifting burden of proof on the defendant.

Such findings are legally unsustainable.
(Paras 26–31)

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Admissions — Evidentiary value

Admissions of plaintiff’s vendor in cross-examination regarding:

• lack of ancestral property, and
• relationship with defendant’s vendor,

are material admissions and cannot be ignored.
(Paras 17–18)

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Competing sale deeds — Effect

Where plaintiff’s vendor had no title and admitted absence of ancestral property, sale deed executed by such vendor does not confer valid title.
(Paras 17, 21, 25)

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Second Appeal — Substantial question of law

Substantial question of law arises where courts below decree a suit for bare injunction despite:

• serious title dispute,
• defective source of title, and
• absence of proof of possession.

(Paras 12, 25–32)

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RATIO DECIDENDI

1. When title is seriously disputed and under cloud, a suit for bare permanent injunction is not maintainable without declaration of title.

2. In injunction suits, the burden lies entirely on the plaintiff to prove lawful possession as on the date of suit.

3. Sale deed and pattadar passbook alone are insufficient to establish possession of agricultural land in the absence of revenue adangals.

4. Courts below commit perversity when they ignore material admissions and documentary evidence.

5. Wrong casting of burden of proof constitutes a substantial question of law under Section 100 CPC.

6. Concurrent findings based on misreading or non-consideration of evidence are open to interference in second appeal.

After commencement of trial, amendment under Order VI Rule 17 CPC is permissible only on proof of due diligence. Conversion of a suit for permanent injunction into declaration of title at the second appellate stage fundamentally changes the nature of the suit and is impermissible. Belated amendment sought after dismissal of suit and first appeal cannot be allowed merely to overcome adverse findings. Amendment cannot be used as a tool to reopen concluded litigation or cure inherent defects noticed by courts below. Failure to seek amendment at earlier stages disentitles the party from seeking it after prolonged delay.

 

Civil Procedure Code, 1908 — Order VI Rule 17

Amendment of pleadings — Scope — Proviso — Due diligence — Mandatory requirement.

After commencement of trial, amendment of pleadings cannot be permitted unless the party seeking amendment establishes that in spite of due diligence, such amendment could not have been sought earlier.
The burden squarely lies on the applicant to satisfy the proviso to Order VI Rule 17 CPC.
(Paras 7–8)

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Amendment at Second Appeal stage

Belated amendment — After dismissal of suit and appeal — Not permissible.

Where:

• suit was instituted in 2004,
• dismissed on merits in 2008,
• appeal dismissed in 2011, and
• second appeal pending from 2011,

an amendment application filed in 2022 at the stage of final hearing of second appeal is grossly belated and liable to be rejected.
(Paras 4–6, 9)

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Suit for Permanent Injunction — Conversion into declaration of title

Change of nature of suit — Impermissible.

Conversion of a suit for bare permanent injunction into a suit for declaration of title and consequential injunction:

• introduces a new cause of action,
• alters the fundamental character of the suit, and
• cannot be permitted at the second appellate stage.

Such amendment is hit by Order VI Rule 17 CPC.
(Paras 5–9)

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Change in nature of suit — Test

An amendment which:

• introduces an entirely new and inconsistent case, or
• transforms the nature and character of the original suit,

must be rejected.
(Paras 7–9)

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Delay — Effect

Though delay alone is not a ground to reject amendment, delay coupled with:

• absence of due diligence,
• attempt to reopen concluded findings, and
• change in nature of suit,

is fatal to the amendment application.
(Paras 6–9)

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Second Appeal — Substantial question of law already raised

Where the appellant himself raised a substantial question of law at the time of filing the second appeal regarding maintainability of injunction suit without declaration of title, failure to seek amendment either before the trial court or appellate court disentitles him from seeking amendment after eleven years of pendency of second appeal.
(Para 6)

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Amendment — Mala fide attempt

Filing an amendment application:

• after 18 years of institution of suit,
• after losing before two courts, and
• at the stage of final hearing in second appeal,

amounts to a mala fide attempt to reopen settled issues and cannot be permitted.
(Para 9)

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Amendment — Not a matter of right

Amendment of pleadings is not a matter of right and cannot be claimed under all circumstances.
Courts must refuse amendment where statutory conditions under Order VI Rule 17 CPC are not satisfied.
(Para 8)

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Amendment — Limitation and accrued rights

An amendment which would:

• deprive the opposite party of valuable accrued rights, and
• permit resurrection of a claim long after limitation,

is liable to be rejected.
(Paras 7–9)

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RATIO DECIDENDI

1. After commencement of trial, amendment under Order VI Rule 17 CPC is permissible only on proof of due diligence.

2. Conversion of a suit for permanent injunction into declaration of title at the second appellate stage fundamentally changes the nature of the suit and is impermissible.

3. Belated amendment sought after dismissal of suit and first appeal cannot be allowed merely to overcome adverse findings.

4. Amendment cannot be used as a tool to reopen concluded litigation or cure inherent defects noticed by courts below.

5. Failure to seek amendment at earlier stages disentitles the party from seeking it after prolonged delay.

In a suit for permanent injunction under Section 38 of the Specific Relief Act, proof of possession as on the date of suit is the decisive factor. Admissions by the defendant regarding possession and construction of boundary wall are sufficient to establish plaintiffs’ possession. A suit for injunction simpliciter is maintainable where possession is proved and title is not required to be conclusively adjudicated. Pendency of a declaratory suit relating to title does not bar grant of injunction to protect existing possession. Concurrent findings of fact by courts below, supported by evidence and admissions, are not open to interference under Section 100 CPC.

 

Civil Procedure Code, 1908 — Section 100 — Second Appeal

Scope — Interference with findings of fact — Principles reiterated.

Under Section 100 CPC, the High Court cannot interfere with findings of fact recorded by the First Appellate Court, which is the final Court of facts, unless such findings are:

(i) contrary to mandatory provisions of law,
(ii) contrary to settled legal principles laid down by the Supreme Court,
(iii) based on inadmissible evidence, or
(iv) arrived at without evidence.

Where findings are based on appreciation of oral and documentary evidence and supported by admissions, no interference is warranted.
(Paras 14, 20–21)

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Specific Relief Act, 1963 — Section 38

Permanent injunction — Essential requirement — Possession on date of suit.

In a suit filed under Section 38 of the Specific Relief Act, the plaintiff must establish actual, peaceful possession of the suit property as on the date of filing of the suit.
Initial burden lies upon the plaintiff to prove such possession.
(Para 16)

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Suit for Permanent Injunction — Maintainability — Title dispute

Injunction simpliciter — When maintainable.

Where plaintiffs plead possession supported by registered documents and the defendant admits construction of a compound wall by the plaintiffs, a suit for permanent injunction is maintainable.
Mere pendency of a separate declaratory suit filed by the defendant does not bar grant of injunction when possession is established.
(Paras 16–20)

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Admissions — Evidentiary value

Admissions in written statement and cross-examination — Binding effect.

Admissions by the defendant that:

• plaintiffs constructed the compound wall,
• there exist two boundary walls separating the properties, and
• plaintiffs are neighbours in possession,

constitute substantive evidence establishing possession of the plaintiffs.
(Paras 17, 19)

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Boundary dispute — Compound wall

Where existence and construction of compound wall by the plaintiffs is admitted by the defendant, such wall establishes separation of properties and supports the plaintiffs’ case of possession.
(Paras 17–19)

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Injunction suit — Title enquiry — Limited scope

In a suit for injunction, title is examined only incidentally to ascertain possession with semblance of right.
Where possession is admitted and proved, the Court need not decide title in an injunction suit.
(Paras 18–20)

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Declaratory suit — Pendency

Effect on injunction proceedings.

Dismissal of a comprehensive suit for declaration and mandatory injunction filed by the defendant, and pendency of appeal therefrom, does not disentitle the plaintiffs from protection of possession by way of injunction.
(Paras 15, 18–20)

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First Appellate Court — Re-appreciation of evidence

Where the First Appellate Court re-appreciates the entire evidence on record and records findings supported by documents and admissions, the judgment does not suffer from illegality.
(Paras 16, 20)

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Concurrent findings — Exceptions

High Court will not interfere with concurrent findings unless courts below:

• ignored material evidence,
• acted on no evidence, or
• applied law erroneously.

Present case does not fall under any such exception.
(Paras 20–21)

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RATIO DECIDENDI

1. In a suit for permanent injunction under Section 38 of the Specific Relief Act, proof of possession as on the date of suit is the decisive factor.

2. Admissions by the defendant regarding possession and construction of boundary wall are sufficient to establish plaintiffs’ possession.

3. A suit for injunction simpliciter is maintainable where possession is proved and title is not required to be conclusively adjudicated.

4. Pendency of a declaratory suit relating to title does not bar grant of injunction to protect existing possession.

5. Concurrent findings of fact by courts below, supported by evidence and admissions, are not open to interference under Section 100 CPC.