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.

A sale deed executed by persons having no title is void ab initio and conveys no right, title or interest to the purchaser. A transferee cannot acquire better title than that possessed by the vendor. A void document need not be cancelled; it is non est in law and not binding on the true owner. Where title is seriously disputed, a suit for permanent injunction simpliciter is not maintainable without declaration of title. Questions not pleaded or raised before the courts below cannot be introduced for the first time in second appeal. Concurrent findings of fact based on evidence are not open to interference under Section 100 CPC in the absence of perversity.

 

Civil Procedure Code, 1908 — Section 100 — Second Appeal

Concurrent findings of fact — Scope of interference — Principles reiterated.

High Court cannot interfere with concurrent findings of fact recorded by the courts below unless such findings are:

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

Where findings are supported by oral and documentary evidence and no perversity is shown, interference under Section 100 CPC is impermissible.
(Paras 15, 34–35)

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Sale Deed — Title — Vendor without title

Transfer by non-owner — Void ab initio — No title passes to vendee.

Where the vendors under the sale deed had no right, title or interest in the property on the date of execution, the sale deed is void ab initio and does not convey any right, title or interest to the transferee.
A transferee cannot acquire better title than that possessed by the vendor.
(Paras 19–21, 27, 31)

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Registered Sale Deed — Proof of title

Title stands proved where:

• original registered sale deed of the year 1988 is produced,
• link documents are established,
• vendors depose supporting execution, and
• possession is shown pursuant to registered conveyance.

Registered sale deed executed by true owners prevails over subsequent documents executed by persons without title.
(Paras 18–23, 30–31)

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Void Document — Cancellation — When unnecessary

Where a sale deed is void ab initio having been executed by persons without title, such document is non est in the eye of law and is not binding on the true owner.
In such circumstances, the true owner can seek declaration of title and possession without seeking cancellation of the void document.
(Paras 27, 31)

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Suit for Permanent Injunction — Title dispute — Maintainability

Injunction simpliciter — Not maintainable when title is under cloud.

When the plaintiff’s title is seriously disputed and complicated questions of title arise, a mere suit for permanent injunction is not maintainable.
The plaintiff must seek declaration of title in addition to injunction.
(Paras 32–33)

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Injunction Suit — Limited scope of title enquiry

In suits for injunction, title can be incidentally examined only to ascertain possession with semblance of right.
Where title itself is under cloud, parties must be relegated to a comprehensive declaratory suit.
(Para 33)

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Hindu Succession Act, 1956 — Section 15(2)

Plea raised for first time in second appeal — Not permissible.

A contention regarding devolution of property under Section 15(2) of the Hindu Succession Act cannot be raised for the first time in second appeal in the absence of pleadings before the trial court and first appellate court.
Such plea does not constitute a substantial question of law.
(Paras 24–25)

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Pleadings — Evidence — Absence of pleadings

Issues not pleaded and not put in issue before the courts below cannot be permitted to be raised at the stage of second appeal.
(Para 25)

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Burden of proof — Title suits

Where execution of sale deed is denied and vendors’ title is disputed, the burden lies upon the party relying on such sale deed to establish:

• vendors’ title,
• consideration, and
• valid conveyance.

Failure to examine vendors or produce supporting documentary evidence is fatal to the claim of title.
(Paras 19–21)

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Evidence — Non-examination of vendors

Non-examination of vendors who are parties to the suit proceedings creates adverse inference against the party relying upon such sale deed.
(Paras 19–21)

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Order XLI Rule 31 CPC — First Appellate Court

Compliance — Judgment valid.

Where the first appellate court framed points for consideration, re-appreciated evidence and assigned reasons for confirming the trial court decree, the judgment cannot be invalidated on the ground of non-compliance with Order XLI Rule 31 CPC.
(Paras 28–29)

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Second Appeal — Substantial question of law

Where the substantial questions of law framed at admission do not survive on appreciation of evidence and settled legal principles, the second appeal is liable to be dismissed.
(Para 35)

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RATIO DECIDENDI

1. A sale deed executed by persons having no title is void ab initio and conveys no right, title or interest to the purchaser.

2. A transferee cannot acquire better title than that possessed by the vendor.

3. A void document need not be cancelled; it is non est in law and not binding on the true owner.

4. Where title is seriously disputed, a suit for permanent injunction simpliciter is not maintainable without declaration of title.

5. Questions not pleaded or raised before the courts below cannot be introduced for the first time in second appeal.

6. Concurrent findings of fact based on evidence are not open to interference under Section 100 CPC in the absence of perversity.

When the extent of property and share of parties is in dispute, a bare suit for permanent injunction is not maintainable without seeking declaration of title. In injunction suits, reference to title is limited only to test possession with semblance of right and cannot substitute a declaratory adjudication of title. Disputes between co-sharers or joint family members regarding extent of property necessarily require declaration of title. Failure of courts below to examine maintainability of injunction suit in the presence of title dispute gives rise to substantial questions of law under Section 100 CPC. Improper appreciation of evidence by courts below itself constitutes a substantial question of law warranting admission of second appeal.

 

Civil Procedure Code, 1908 — Section 100 — Second Appeal — Admission stage

Substantial question of law — Maintainability of suit for permanent injunction — Dispute relating to title and extent — Appreciation of evidence — Appeal admitted.

Where the appellant contended that:

(i) parties are in possession of different extents pursuant to an earlier partition decree and subsequent settlement by elders,
(ii) extent of property is seriously disputed, and
(iii) courts below decreed the suit for bare injunction without considering necessity of declaration of title,

the High Court held that substantial questions of law arise warranting admission of the second appeal.
(Paras 1–6)

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Suit for Permanent Injunction — Title dispute — Maintainability

Mere injunction suit — When not maintainable — Declaration of title necessary.

When dispute exists regarding:

• extent of property,
• respective shares of parties, and
• title arising from alleged joint family arrangement,

a mere suit for permanent injunction is not maintainable, and the plaintiff ought to seek declaration of title.
(Paras 2–4)

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Injunction simpliciter — Possession — Semblance of right

In a suit for permanent injunction, reference to title is permissible only to examine whether the plaintiff is in possession with semblance of right and not as an outright trespasser or encroacher.
Any party seeking adjudication of title must necessarily file a suit for declaration of title.
(Para 3)

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Joint family property — Dispute between co-sharers

Where plaintiff and defendant are step-brothers claiming enjoyment of joint family properties, and the defendant disputes the extent of plaintiff’s share, a suit for injunction alone without declaration of title is legally not maintainable.
(Para 4)

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Appreciation of evidence — Question of law

Whether the courts below properly appreciated the oral and documentary evidence on record constitutes a substantial question of law in the facts of the case.
(Para 5)

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Second Appeal — Admission

In view of the substantial questions of law arising from:

• maintainability of injunction suit,
• dispute regarding title and extent, and
• appreciation of evidence,

the Second Appeal was admitted.
(Paras 6–7)

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RATIO DECIDENDI

1. When the extent of property and share of parties is in dispute, a bare suit for permanent injunction is not maintainable without seeking declaration of title.

2. In injunction suits, reference to title is limited only to test possession with semblance of right and cannot substitute a declaratory adjudication of title.

3. Disputes between co-sharers or joint family members regarding extent of property necessarily require declaration of title.

4. Failure of courts below to examine maintainability of injunction suit in the presence of title dispute gives rise to substantial questions of law under Section 100 CPC.

5. Improper appreciation of evidence by courts below itself constitutes a substantial question of law warranting admission of second appeal.