Madras High Court
Hemakumari vs D.Dharamraja on 17 June, 2021
CRP.PD.No.1816 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.06.2021
CORAM :
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
CRP(PD)No.1816 of 2017
and CMP No.8694 of 2017
Hemakumari ... petitioner
Vs.
1.D.Dharamraja
2.D.Bhuvaneshwari
3.L.Dhanasekar ... Respondents
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India against the judgment and decreetal order in
IA.No17597 of 2012 in OS.No.3590 of 2011 dated 01.07.2015 on the file
of the I Assistant City Civil Court, Madras.
For Petitioner : Mr.V.Lakshminarayanan
For Respondents : Mr.P.B.Balaji for R3.
Not ready – R1 and R2.
ORDER
(This case has been heard through video conference)
This petition has been filed seeking to set aside the order made
in IA.No17597 of 2012 in OS.No.3590 of 2011 dated 01.07.2015 on the
file of the I Assistant City Civil Court, Madras.
https://www.mhc.tn.gov.in/judis/
CRP.PD.No.1816 of 2017
2. The petitioner is the plaintiff in OS.No.3590 of 2011 filed
seeking for permanent injunction restraining the respondents/defendants
his men, agents, servants, subordinated or anybody claiming through him
from in any manner interfering with the plaintiffs peaceful possession
and enjoyment and dealing with the suit schedule property.
3. The respondents/defendants had filed written statement
denying title and and ownership of the plaintiff stating stating that the
schedule mentioned property belong to Parasurama Eswaran Koil,
Ayanavaram. Based on the written statement the title of the
petitioner/plaintiff was questioned by the respondents/defendants. The
petitioner had filed IA.No.17597 of 2012 under Order 6 Rule 17 CPC to
amend the prayer in the plaint in OS.No.3590 of 2011 to grant decree of
declaration declaring that the petitioner/plaintiff is the absolute owner of
the suit schedule property. The respondents/defendants had filed counter
stating that the suit was filed for grant of permanent injunction without
seeking any further relief of declaration of title, the application filed for
amendment, without reserving right or seeking leave to sue later is not
maintainable.
https://www.mhc.tn.gov.in/judis/
CRP.PD.No.1816 of 2017
4. The trial Court after hearing both sides had dismissed the
petition against which the present civil revision petition is filed.
5. Mr.V.Lakshminarayanan, the learned counsel for the
petitioner would submit that the petitioner is the absolute owner of the
schedule mentioned property and he has been in possession and
enjoyment of the same from the date of purchase i.e 27.09.1995 and after
purchase she had mutated the revenue records in respect of the suit
property in her name and she had been paying property taxes and water
charges. The petitioner intended to put up a compound wall around her
property and since it was objected and prevented by the
respondents/defendants, the petitioner/plaintiff had filed the suit seeking
for permanent injunction. The respondents/defendants had filed written
statement denying title of the petitioner thereby necessitating the
petitioner to file a petition to amend the prayer for declaration. He would
further submit that it is a settled law when the petitioner is the original
owner of the property and when a cloud is raised over the petitioner's
title with regard to the property and the title of the petitioner is denied,
https://www.mhc.tn.gov.in/judis/
CRP.PD.No.1816 of 2017
and the prayer for declaration is necessary and thereby the petition had
been filed to amend the suit into one for declaration. He would submit
that the case is only at the pre-trial stage and the amendment does not
alter the nature of the suit and thereby and no prejudice would be caused
to the respondents. Whereas, the trial Court without properly analysing
the legal requirements taking into consideration extraneous material had
rendered a finding that as per the sale deed, the plaintiff had purchased
only the superstructure in the suit property and the vacant land on which
the building was constructed belongs to the temple. In such
circumstances, the petitioner has to necessarily file a petition seeking for
amendment. The trial court even without any evidence being let in has
also rendered a wrong finding that the petitioner is not entitled to claim
ownership and that the temple is not added as a party to the suit. The
learned counsel would further submit that the petition has been filed in
order to avoid multiplicity of proceedings and further the amendment
sought for does not alter the cause of action and the nature of the suit.
6. In support of his contention the learned counsel for the
petitioner would rely on the judgment of the Hon'ble Apex Court in
https://www.mhc.tn.gov.in/judis/
CRP.PD.No.1816 of 2017
Anathula Sudhakar v. P.Buchi Reddy (dead) and others reported in
(2008) 4 SC 594.
“13. The general principles as to when a mere suit for
permanent injunction will lie, and when it is necessary to file a suit for
declaration and/or possession with injunction as a consequential
relief, are well settled. We may refer to them briefly.
13.1. Where a plaintiff is in lawful or peaceful possession
of a property and such possession is interfered or threatened by the
defendant, a suit for an injunction simpliciter will lie. A person has a
right to protect his possession against any person who does not
prove a better title by seeking a prohibitory injunction. But a person in
wrongful possession is not entitled to an injunction against the
rightful owner.
13.2. Where the title of the plaintiff is not disputed, but he
is not in possession, his remedy is to file a suit for possession and
seek in addition, if necessary, an injunction. A person out of
possession, cannot seek the relief of injunction simpliciter, without
claiming the relief of possession.
13.3. Where the plaintiff is in possession, but his title to
the property is in dispute, or under a cloud, or where the defendant
asserts title thereto and there is also a threat of dispossession from
the defendant, the plaintiff will have to sue for declaration of title and
the consequential relief of injunction. Where the title of the plaintiff is
under a cloud or in dispute and he is not in possession or not able to
establish possession, necessarily the plaintiff will have to file a suit
for declaration, possession and injunction.
14. We may, however, clarify that a prayer for
https://www.mhc.tn.gov.in/judis/
CRP.PD.No.1816 of 2017
declaration will be necessary only if the denial of title by the
defendant or challenge to the plaintiff's title raises a cloud on the title
of the plaintiff to the property. A cloud is said to raise over a person's
title, when some apparent defect in his title to a property, or when
some prima facie right of a third party over it, is made out or shown.
An action for declaration, is the remedy to remove the cloud on the
title to the property. On the other hand, where the plaintiff has clear
title supported by documents, if a trespasser without any claim to title
or an interloper without any apparent title, merely denies the
plaintiff's title, it does not amount to raising a cloud over the title of
the plaintiff and it will not be necessary for the plaintiff to sue for
declaration and a suit for injunction may be sufficient. Where the
plaintiff, believing that the defendant is only a trespasser or a
wrongful claimant without title, files a mere suit for injunction, and in
such a suit, the defendant discloses in his defence the details of the
right or title claimed by him, which raise a serious dispute or cloud
over the plaintiff's title, then there is a need for the plaintiff, to amend
the plaint and convert the suit into one for declaration. Alternatively,
he may withdraw the suit for bare injunction, with permission of the
court to file a comprehensive suit for declaration and injunction. He
may file the suit for declaration with consequential relief, even after
the suit for injunction is dismissed, where the suit raised only the
issue of possession and not any issue of title.”
7. Mr.Balaji representing the respondents would submit that
even as per the sale deed the petitioner has purchased only the
https://www.mhc.tn.gov.in/judis/
CRP.PD.No.1816 of 2017
superstructure and the land on which the construction is put up belongs
to the temple and the temple has not been impleaded in the suit.
8. In reply, Mr.V.Lakshminarayanan, learned counsel for the
petitioner would submit that neither the temple nor the authorities of the
temple are interfering with the right of the petitioner and they are also not
denying or disputing the right of the petitioner. It is the respondents who
are interfering with the possession of the petitioner and denying the title
of the petitioner and thereby the petitioner does not have to implead the
temple as party.
9. Heard the counsels and perused the materials on record.
10. In this case, the petitioner/plaintiff has filed the suit for
permanent injunction, since the possession was alleged to be interfered
with by the respondents/defendants. The respondents/defendants had
filed written statement in which they have denied and disputed the title of
the petitioner/plaintiff and thereby it has became necessary for the
https://www.mhc.tn.gov.in/judis/
CRP.PD.No.1816 of 2017
petitioner to prove her title by seeking for a declaration as cited in
Anathula Sudhakar case (cited supra). The Apex Court has held that
where the plaintiff, believing that the defendant is only a trespasser or a
wrongful claimant without title, files a mere suit for injunction, and in
such a suit, the defendant discloses in his defence the details of the right
or title claimed by him, which raise a serious dispute or cloud over the
plaintiff's title, then there is a need for the plaintiff, to amend the plaint
and convert the suit into one for declaration. As rightly pointed by the
petitioner, in the written statement the respondents have disputed the
petitioner's title over the property and thereby there is a need for
petitioner/plaintiff seeking for amendment. The trial Court without
taking into consideration the need and necessity had erred in dismissing
the petition and thereby the impugned order has to be set aside.
11. In the result, the civil revision petition is allowed by setting
aside the order made in IA.No17597 of 2012 in OS.No.3590 of 2011
dated 01.07.2015 on the file of the I Assistant City Civil Court, Madras.
No costs. Consequently, connected miscellaneous petition is closed.
https://www.mhc.tn.gov.in/judis/
CRP.PD.No.1816 of 2017
17.06.2021.
tsh
To
The I Assistant City Civil Court, Madras.
A.D. JAGADISH CHANDIRA, J.,
tsh
https://www.mhc.tn.gov.in/judis/
CRP.PD.No.1816 of 2017
CRP(PD)No.1816 of 2017 and
CMP No.8694 of 2017
17.06.2021.
https://www.mhc.tn.gov.in/judis/
