THE HON'BLE Dr. JUSTICE G. RADHA RANI
SECOND APPEAL Nos.705 of 2017 and 56 of 2018
COMMON JUDGMENT:
These Seconds Appeal are filed by the plaintiff in O.S.No.236
of 2006 on the file of the Principal Junior Civil Judge, Siddipet, Medak
District aggrieved by the judgment and decree in A.S.Nos.32 of 2012
and 33 of 2012 dated 28.03.2017 on the file of the VI Additional
District Judge, Siddipet, Medak District reversing the decree and
judgment dated 26.08.2011 passed in O.S.No.236 of 2006 on the file of
the Principal Junior Civil Judge, Siddipet, Medak District.
2. The parties are hereinafter referred to as they were arrayed
before the trial court.
3. The brief facts giving rise to filing of these Second Appeals are
the plaintiff filed O.S.No.236 of 2006 on the file of the Principal Junior
Civil Judge, Siddipet, Medak District for permanent injunction
restraining the defendants from interfering with the peaceful possession
and enjoyment over the suit schedule property bearing No.10-92. The
plaintiff claimed that one Chiduram Mangamma was the absolute
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owner and possessor of the suit property. When Chiduram Mangamma
was ill and there was no one to look after her, Chiduram Mangamma
requested the plaintiff to do service to her till her death and offered to
give suit property to the plaintiff. The plaintiff agreed and accepted the
said proposal and plaintiff did services to Mangamma. Mangamma
during her life time executed a Gift Deed in favour of the plaintiff on
27.06.2006. Though the deed was termed as Gift Deed, infact it was a
Will Deed. Mangamma died on 09.07.2006. Thus the plaintiff became
the absolute owner and possessor of suit schedule property. The
defendants, the relatives of Mangamma were trying to evict the plaintiff
and came to the suit land on 27.10.2006 and tried to dispossess her,
upon which she gave legal notice dated 30.10.2006 to defendant No.2
and others. The defendants gave a reply on 30.10.2006 stating that the
plaintiff was a tenant and admitted that plaintiff was in possession of
the suit house.
4. The defendants filed written statement along with a counter
claim for eviction of the plaintiff from the suit schedule house and for
recovery of arrears of rents, past and future till the premises was
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vacated by the plaintiff. They contended that Chiduram Mangamma
was the wife of the Chiduram Laxmi Rajam. The defendant No.1 was
the brother of late Chiduram Laxmi Rajam, defendant Nos.2 and 3 were
the sons of defendant No.1. Chiduram Laxmi Rajam worked as
Government Teacher in Panchyat Raj Department and retired in the
year 1983. Laxmi Rajam died in the year 1986. After death of Laxmi
Rajam, his wife Mangamma purchased an open plot in an extent of 320
Sq. yards at Indiranagar with the retirement benefits of her husband and
constructed a house. Gram Panchayath Prashanthnagar allotted House
No.10-192 for the entire house which consisted of seven rooms and an
open place. Mangamma alienated 139.19 Sq. Yards, the southern
portion consisting of two rooms and backyard to one Kallepally
Devadas under a simple sale deed dated 05.01.2004. She retained for
herself an area of 180.03 Sq. yards consisting of five rooms and
backyard. The plaintiff was inducted as tenant by Mangamma in a
portion of 36 Sq.yards consisting of three rooms out of five rooms on a
monthly rent of Rs.300/- during March/April of 2006. Mangamma did
not execute any Will deed or Gift deed. The said document dated
27.06.2006 was a forged and fabricated document. The plaintiff taking
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advantage of surrounding circumstances forged the document with ante
date just 12 days prior to the death of Mangamma.
5. Basing on the said pleadings, the trial court framed the
following issues:
1. Whether the plaintiff is owner and possessor of suit
property as on the date of suit?
2. Whether the defendants are entitled to suit property?
3. Whether the plaintiff is entitled to relief as prayed for?
4. Whether the defendants are entitled to relief as prayed
for in counter claim?
5. To what relief?
6. The plaintiff examined herself as PW.1 and examined
witnesses to the alleged gift deed/will deed as PWs.2 and 3 and got
marked Exs.A1 to A5. Ex.A1 is house tax receipt dated 07.09.2006,
Exs.A2 and A3 are the office copy of legal notice and reply notice.
Ex.A4 is valuation report and Ex.A5 is gift deed/will deed dated
27.06.2006.
7. The defendant No.2 examined himself as DW.1. They got
examined one Kallepally Devadas who was in possession of part of the
house property sold by Mangamma as DW.2 and got examined another
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close relative of Mangamma, the grandson of Mangamma's sister as
DW.3. No documents were exhibited by the defendants.
7. The trial court observed that in a suit for simplicitor injunction
complicated questions of title could not be gone into and as the
defendants admitted the possession of the plaintiff as a tenant and also
categorically stated and admitted in their evidence that she was in
possession of three rooms but failed to file any document to show that
she was tenant of late Mangamma decreed the suit in favour of the
plaintiff granting perpetual injunction restraining the defendants from
interfering with her possession over the schedule property subject to
determination of title as per law and dismissed the counter claim of the
defendants, since they failed to file any documentary proof to prove the
relationship between the plaintiff and Mangamma as tenant and
landlord.
8. Aggrieved by decreeing the suit of the plaintiff and dismissing
their counter claim, the defendants preferred appeals vide A.S.Nos.32 of
2012 and 33 of 2012. The same were heard by the VI Additional
District Judge, Siddipet, Medak District. Vide judgment and decree
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dated 28.03.2017 the lower appellate court allowed A.S.No.32 of 2012
setting aside the judgment and decree in dismissing the suit in
O.S.No.236 of 2006 and allowed A.S.No.33 of 2012 by allowing the
counter claim of the defendants directing the plaintiff to vacate the suit
schedule property within one month from the date of passing the
decree, failing which defendant Nos.2 and 3 were at liberty to execute
the decree and were entitled to arrears of rent @ Rs.300/- per month
from the month of August, 2006 till the date of passing of the judgment
and decree, payable by the plaintiff within one month. The appellate
court also granted future rents from the month of April, 2017 to be paid
by the plaintiff, till Defendant Nos.2 to 4 were put in vacant possession
of the suit property.
9. Aggrieved by the said judgment of reversing the decree and
judgment in O.S.No.236 of 2006, the plaintiff preferred this Second
Appeal contending that the appellate court had unnecessarily gone into
the correctness of Ex.A5 Will deed when the plaintiff was in actual
possession of the suit schedule property as on the date of filing the suit.
The defendants had not filed any documents to show that they
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succeeded to the property and they were lawful owners of the suit
schedule property. The plaintiff had discharged the initial burden by
filing Exs.A1 to A5. No documents were marked by the defendants.
By being mere relatives, the defendants could not claim ownership over
the property. In the absence of succession certificate or any other
document showing the right over the property, contended that the
following substantial questions of law would arise for consideration:
1. Whether the judgment and decree of first
appellate court is correct in entering into the
correctness of Ex.A5 when there is no evidence
to show that the defendants/ respondents
succeeded to the property and are owners of the property?
2. Whether the judgment and decree of first appellate court is correct in entering into the correctness of Ex.A5 when there is no evidence to show that the defendants/ respondents are having better title to the property and the respondents/defendants failed to produce the succession certificate?
3. Whether the judgment and decree of first appellate court is correct when there is no rebuttal evidence, after the discharge of initial burden by the appellant/respondent?
4. Whether the judgment and decree of first appellate court is correct in entering into the correctness of Ex.A5 when there is no issue Dr.GRR,J S.A.Nos.705 of 2017 & 8 56 of 2018 with regard to genuineness of Ex.A5?
5. Whether the judgment and decree of first appellate court is correct in deciding the title in injunction suit without framing an issue with regard to genuineness of Ex.A5?
10. Heard the learned counsel for the appellant and the learned counsel for the respondents.
11. The contention of the learned counsel for the appellant mainly was that whether the appellate court could decide the title in an injunction suit when there was no issue with regard to genuineness of Ex.A5 and relied upon the judgment of the Hon'ble Apex Court in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by L.Rs. and Ors.1 wherein it was held that:
"17. The position in regard to suits for prohibitory injunction relating to immovable property, is sumarised 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 1 AIR 2008 SC 2033 Dr.GRR,J S.A.Nos.705 of 2017 & 9 56 of 2018 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 (2005 (6) SCC)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not 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 straight-forward, the court may decide upon the issue regarding title, even in a suit Dr.GRR,J S.A.Nos.705 of 2017 & 10 56 of 2018 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."
and mainly relied upon point (c).
12. Learned counsel for the respondents, on the other hand relied upon the judgment of the Hon'ble Apex Court in T.V. Ramakrishna Reddy Vs. M.Mallappa and Anr.2 wherein it was held that:
"where the plaintiff's title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession. It has been clearly held that 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. 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 2 AIR 2021 SC 4293 Dr.GRR,J S.A.Nos.705 of 2017 & 11 56 of 2018 regarding title, even in a suit for injunction. However, such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. This is not a case where the plaintiff- appellant can be said to have a clear title over the suit property or that there is no cloud on plaintiff- appellant's title over the suit property. The question involved is one which requires adjudication after the evidence is led and questions of fact and law are decided. It cannot be said at this stage that the dispute raised by the defendant No.2 with regard to title is not genuine nor can it be said that the title of the plaintiff- appellant over the suit property is free from cloud. The issue with regard to title can be decided only after the fullfledged trial on the basis of the evidence that would be led by the parties in support of their rival claims."
13. The lower appellate court itself observed that:
"Thus, in a suit where there is no cloud on the title of the plaintiff or where the trespasser merely denied the title of the plaintiff, a suit can be laid for mere injunction basing on the lawful possession. In the present suit, the very claim of the plaintiff is basing on the alleged Will Deed Ex.A5 by virtue of which plaintiff claims to have become owner of the suit property. The exchange of notices between plaintiff and defendants under Ex.A2 and A3 shows that even before filing the suit, the title of the plaintiff over the suit land was denied by the defendants. This being the case, a mere suit for perpetual injunction claiming to be in lawful possession is not maintainable and the plaintiff ought to have sought for the relief of declaration of her title over the suit property by paying proper court fee."
Dr.GRR,J S.A.Nos.705 of 2017 & 12 56 of 2018
14. The judgments relied by both the counsel reiterate the same principle that where the plaintiff's title is in dispute or under a cloud, a suit for declaration and possession, with or without consequential injunction is the remedy and where the plaintiff's title is not in dispute or under a cloud, a suit for injunction can be decided with reference to the finding of possession.
15. But here in the present case, the title of the plaintiff is in cloud as Ex.A5 was disputed by the defendants. Hence, the plaintiff ought to have filed a suit for declaration of title. A simple suit for injunction is not maintainable in such circumstances.
16. As the legal position is very clear on this aspect and considering the binding precedents of the Hon'ble Apex Court as relied by the learned counsel for the respective parties on this aspect, this Court considers that there is no substantial question of law arising in these Second Appeals. Therefore, the Second Appeals are liable to be dismissed.
18. In the result, the Second Appeals are dismissed confirming the Dr.GRR,J S.A.Nos.705 of 2017 & 13 56 of 2018 common judgment and decree in A.S.Nos.32 of 2012 and 33 of 2012 dated 28.03.2017 on the file of the VI Additional District Judge, Siddipet, Medak District reversing the decree and judgment dated 26.08.2011 passed in O.S.No.236 of 2006 on the file of the Principal Junior Civil Judge, Siddipet, Medak District. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J February 17, 2023 SS Dr.GRR,J S.A.Nos.705 of 2017 & 14 56 of 2018 THE HON'BLE Dr. JUSTICE G. RADHA RANI SECOND APPEAL Nos.705 of 2017 and 56 of 2018 February 17, 2023 SS