Unknown vs Loganathan
2022 Latest Caselaw 1918 Mad

                                                                          S.A.No.574 of 2014

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                            Dated : 07.02.2022

                                                     Coram:

                                  THE HONOURABLE Mr.JUSTICE N.ANAND VEKATESH

                                                S.A.No.574 of 2014
                                                       and
                                                 MP.No.1 of 2014


              1.Renganathan (died)
               S/o.Veerasamy
               East Street
               Jayankondam Town
               Udayarpalayam Taluk.


              2.R.Kodipoun
                W/o.Renganathan

              3.R.Elakkiamalar
               D/o.Renganathan

              4.Uthamiselvi
                D/o.Renganathan

              5.R.Kulavadivu
                D/o.Renganathan

              6.R.Karpahakkam

              7.R.Kaviyathalir
                D/o.Renganathan

              8.R.Alayakkaniamuthu
                 D/o.Renganathan


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                                                                                      S.A.No.574 of 2014

              9.J.R.Ponmaanaselvan
                 S/o.Renganathan                                                           ..Appellants

                [All are rsiding at ½ Indira Nagar,
                 Jayankondam, Ariyalur].

              (Appellants 2 to 9 brought on record as LRs of the deceased
              sole appellant viz., Renganathan vide Court order dt.23.11.2021
              made in CMP No.5521/2019 in SA.No.574/2014 TKRJ)



                                                           ..Vs..


              1.Loganathan

              2.Rajamani

              3.Renuga                                                               ..Respondents



              Prayer:             Second Appeal filed Under Section 100 of the Code of Civil Procedure
              against the Judgment and Decree of the Principal District & Sessions Court at
              Ariyalur, dated 28.01.2014 in A.S.No.11 of 2013 confirming the judgment and
              decree of the District Munsif Court at Jayankondam, dated 31.03.2006 in
              O.S.No.270 of 2003.



                                   For Appellants    : Mr.P.Valliappan

                                   For Respondents   : R1 to R 3 notice served
                                                       (No Appearance0




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                                                                                         S.A.No.574 of 2014

                                                       JUDGMENT

The defendant is the appellant in this appeal. One Meena filed a suit before the

District Munsif Court, Jayankondam, seeking for the relief of permanent injunction against

the defendant. The specific case of the plaintiff is that she became the owner of the

property by virtue of a registered Sale Deed dated 23.08.1977. The further case of the

plaintiff is that she is entitled for an extent of 20 cents and that the defendant was

attempting to interfere with the possession and enjoyment of the property without any

right or title. As a result, the present suit was filed seeking for the relief of permanent

injunction.

2.The case of the defendant is that the predecessor in title of the plaintiff had

purchased only 0.10 cents on the Southern side of the suit property under exhibit B-8. In

this document, while describing the boundaries, it is stated that it is situated South of

Ayyaru Konar land. The further case of the defendant is that they had purchased the

property on the Northern side under exhibit B-1 on 15.12.1980 from the grand children of

Ayyaru Konar. Since there was some mistake in mentioning the survey number, a

rectification deed was also executed under exhibit B-2. The further case of the

defendant is that the plaintiff has not proved the right or title over an extent of 20 cents

of land and there was a direct challenge to the title of the plaintiff. In spite of the same,

the plaintiff had not chosen to seek for the relief of declaration of title and hence the

bare injunction suit is unsustainable in law.

3.Both the Courts below agreed with the case of the plaintiff and decreed the suit.

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Aggrieved by the same, the present Second Appeal has been filed before this Court.

4.This Court formulated the following substantial questions of law:

a) Where the defendant has questioned the very title of the

plaintiff by making the necessary pleadings in the written statement and

by producing the relevant documents, whether both the Courts below

were right in decreeing the suit even without the plaintiff seeking for the

relief of declaration of title?

b) Whether the Courts below properly appreciated the admissions

made by PW-1 in her cross examination which throws a serious doubt on

the very description of the suit property by the plaintiff and inspite of the

same, whether the Courts below were right in granting the relief of

permanent injunction for the entire extent of 20 cents?

c) Whether the Appellate Court was right in eschewing Issue No.2

framed by the Trial Court even without understanding that such an issue

was required since the defendant had questioned the very title in the

suit property?

d) Whether the Appellate Court had properly framed the points for

determination as mandated under Order XLI Rule 31 of CPC?

e) Whether the findings of the Courts below is vitiated due

improper appreciation of the oral and documentary evidence that was

available on record and thereby the judgment and decree of the Courts

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below are liable to be interfered by this Court?

5.Heard Mr.P.Valliappan, learned counsel for the appellants. The respondents

were served with notice and their name was also printed in the cause list. There is no

appearance on the side of the respondents either in person or through counsel.

6.A careful reading of the written statement filed by the defendant shows that the

defendant has directly questioned the title of the plaintiff in the suit property. According

to the defendant, he became the owner of the property measuring an extent of 8 ½

cents under Ex.B-1, which is a Sale Deed dated 15.12.1980. The oral testimony of DW-2

who is one of the vendors of the defendant gives a clear and cogent evidence

establishing the title of the defendant under Ex.B-1. A careful reading of the Sale Deed

relied upon by the plaintiff and which is marked as Ex.A-1 shows that the plaintiff was

only conveyed an extent of 10 cents. The parent title deed to this property was actually

produced by the defendant and it has been marked as exhibit B-8. It is seen from this

document that the predecessor in title had purchased only 10 cents. It is therefore not

known as to how the plaintiff is claiming a right over an extent of 20 cents which is not

borne out by any records.

7.It is further seen from the evidence of PW-1 that the defendant is already in

possession of 8 ½ cents and while so, it is not known as to how the plaintiff is seeking

the relief of permanent injunction if the possession to an extent of 8 ½ cents is already

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with the defendant.

8.In the present case, there is a direct challenge to the title of the plaintiff by

virtue of Ex.B-1 and that apart, the defendant has also asserted to be in possession of

8 ½ cents out of 10 cents. In such a case, the question of title cannot be considered to

be incidental and in fact, the main question is only with regard to the title to the

property and the relief of injunction can only be a consequential relief. This is more so

since the property in question is a vacant land. Both the Courts below failed to

appreciate this fundamental fact which goes to the root of the matter.

9.In the facts of the present case, the real controversy is the title to the suit

property. Normally, when the property is a vacant land, it can be safely concluded that

the question of title will be directly in issue. The various circumstances under which it

can be construed that there is a cloud in the title and the relief of declaration must be

sought for, has been considered by the Hon'ble Supreme Court in Ananthula Sudhakar

.v P.Buchi Reddy (Dead) by Lrs and Others reported in 2009 1 MLJ 1001. The

relevant portions in the judgment are extracted hereunder:

“11. 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.

11.1. 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

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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.

11.2. 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.

11.3. 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 defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of 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.

12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of 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 defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant

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discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over 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.

13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.

14. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear

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and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full- fledged suit for declaration and consequential reliefs.

15. There is some confusion as to in what circumstances the question of title will be directly and substantially in issue, and in what circumstances the question of title will be collaterally and incidentally in issue, in a suit for injunction simpliciter. In Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar Temple vs. Rajanga Asari AIR 1965 Mad. 355, the Madras High Court considered an appeal arising from a suit for possession and injunction. The defendant contended that the plaintiff had filed an earlier suit for injunction which was dismissed, and therefore the plaintiff was precluded from agitating the issue of title in the subsequent suit, being barred by the principle of res judicata. It was held that the earlier suit was only for an injunction (to protect the standing crop on the land) and the averments in the plaint did not give rise to any question necessitating denial of plaintiff's title by the defendant; and as the earlier suit was concerned only with a possessory right and not title, the subsequent suit was not barred. There are several decisions taking a similar view that in a suit for injunction, the question of title does not arise or would arise only incidentally or collaterally, and therefore a subsequent suit for declaration of title would not be barred. On the other hand, in Sulochana Amma vs. Narayanan Nair 1994 (2) SCC 14, this Court observed that a finding as to title given in an earlier injunction suit, can operate as res judicata in a subsequent suit for declaration of title. This was on the premises that in some suits for injunction where a finding on possession solely depended

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upon a finding on the issue of title, it could be said that the issue of title directly and substantially arose for consideration; and when the same issue regarding title is put in issue, in a subsequent title suit between the parties, the decision in the earlier suit for injunction may operate as res judicata. This Court observed :

"Shri Sukumaran further contended that the remedy of injunction is an equitable relief and in equity, the doctrine of res judicata cannot be extended to a decree of a court of limited pecuniary jurisdiction. We find no force in the contention. It is settled law that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as res judicata."

This was reiterated in Annaimuthu Thevar v. Alagammal 2005 (6) SCC 202 :

(2005)4MLJ 1.

16. This Court in Sajjadanashin Sayed Md. Vs. Musa Dadabhai Ummer AIR 2000 SC 1238: 2000 (3) SCC 350 : (2000) 2 MLJ 172, noticed the apparent conflict in the views expressed in Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar Temple v. Rajanga Asari (supra) and clarified that the two decisions did not express different views, but dealt with two different situations, as explained in Corpus Juris Secundum (Vol.50, para 735, p.229): "Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title."

In Vanagiri, the finding on possession did not rest on a finding on title and there was no issue regarding title. The case related to an agricultural land

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and raising of crops and it was obviously possible to establish by evidence who was actually using and cultivating the land and it was not necessary to examine the title to find out who had deemed possession. If a finding on title was not necessary for deciding the question of possession and grant of injunction, or where there was no issue regarding title, any decision on title given incidentally and collaterally will not, operate as res judicata. On the other hand, the observation in Sulochana Amma that the finding on an issue relating to title in an earlier suit for injunction may operate as res judicata, was with reference to a situation where the question of title was directly and substantially in issue in a suit for injunction, that is, where a finding as to title was necessary for grant of an injunction and a specific issue in regard to title had been raised. It is needless to point out that a second suit would be barred, only when the facts relating to title are pleaded, when a issue is raised in regard to title, and parties lead evidence on the issue of title and the court, instead of relegating the parties to an action for declaration of title, decides upon the issue of title and that decision attains finality. This happens only in rare cases. Be that as it may. We are concerned in this case, not with a question relating to res judicata, but a question whether a finding regarding title could be recorded in a suit for injunction simpliciter, in the absence of pleadings and issue relating to title.

17. 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.

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(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 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 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.

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10.The latest judgment on this issue is in Arulmigu Velukkai Sri Azhagiya

Singaperumal Devasthanam, rep.by its Trustees .v G.K.Kannan (Deceased) &

Others reported in 2020 2 LW 317. The relevant portions in the judgment are

extracted hereunder:

“ 19.The issue here is, to emphasis, not when a declaratory relief may be sought, but is about non-suiting the plaintiff for not seeking a declaratory relief merely because the defendant has denied the plaintiff's right. And, it does not apply to situations where, the plaintiff amends his plaint to include a declaratory relief, but only to situations where he opts to face the trial without any such amendment. This Court is witnessing the latter scenario. Hence, the issue here is a mild variant of what the Hon'ble Supreme Court has laid down in Anathula Sudhakar case, and the focus will be more on how the Courts of facts may approach the issue.

20.1 A denial of the plaintiff's title in the written statement is merely a pleading of the defendant. It is part of his strategy, and is fundamentally self- serving. Can therefore, a denial of plaintiff's title without anything more, be adequate enough to conclude that the title of the plaintiff has come under a cloud? For instance, in the present case, Andalammal had purchased two items of properties (of which one is the suit property), sometime in 1892 and 1893, and endowed them for religious charity under Ext.A-5 in 1907, and the plaintiff has produced documents up to couple of years next before the institution of the present suit for proving the character of the suit property. So far as the plaintiff-temple is concerned, the initial burden cast on it to prove its case has been

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discharged. The law on shifting of burden of proof informs that the burden shifts to the defendant only after the plaintiff has discharged his burden, which in other words would mean that when the evidence produced by the plaintiff is found to be capable of producing a certain prima facie conclusion in support of the latter's case. Now, can the prima facie conclusion on the plaintiff's title based on his evidence, be stated to have been adequately defended by a mere denial of plaintiff's title in the written statement, or its inadequate proof?

20.2 If a mere denial in the pleading of the defendant is considered adequate, it instantly dispenses him of his burden to prove his plea of denial of plaintiff's title, which then will automatically elevate the defendant's pleading on a disputed fact (and not law) to the status of its proof. This would give an unfair procedural advantage to the defendant. Viewing it from another angle, if only a denial of plaintiff's title in the written statement without anything more, can be a ground to non-suit the plaintiff for not seeking a declaratory relief, then that could have been made the ground to dismiss the suit on a preliminary issue, but Order XIV Rule 2 CPC, does not provide for this course. It cannot be ignored that, notwithstanding the nature of action, and irrespective of whether the relief sought is one under the common law, or a discretionary relief in equity, the procedure which the Courts adopt for trial of the case and the law on burden of proof that govern the trial remain the same for both.

20.3 It can now be deduced that, to constitute a cloud on plaintiff's title, there must be evidence for the Court to conclude

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prima facie that the plaintiff's assertion of title to a legal character, or to a right over a property has come under the cloud. Let it not be forgotten, that life's experience in this country, which both the Courts and the legal practitioners would vouchsafe, that not every litigant makes a bonafide denial of plaintiff's title. While, a bonafide denial of plaintiff title with some evidence may merit consideration, to non- suit the plaintiff with a colourable denial of former's title will be unconscionable, if only it is acknowledged that fairness is integral to our adversarial jurisprudence.

21. Hence, it is necessary for the Court to weigh:

The quality of the pleadings to ascertain if the defendant alleges if a third party to the suit has the title, or, if he traces his title to the same source from which plaintiff also derives title, or if the defendant relies on an independent source of title to some other source;

If the evidence produced by the defendant to prove his plea of denial of the plaintiff's title covers the same period for which the plaintiff has produced the evidence, or whether such evidence as produced by both the plaintiff and the defendant are separated by a clear time-line;

If any adverse inference is required to be drawn against any of the parties for not producing the evidence which is in their capacity to produce, and evaluate the relative quality of the evidence made available before it. (What is indicated here is not exhaustive since every case has its own character. When the rule of probability determines the nature of the decision to be made, it can never be exhaustive too.). This precisely is the exercise what the Court engages in it is required to enter a finding on a disputed

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title incidentally in a suit for bare injunction.

22. Ideally, the Court may engage in a certain process to achieve a certain degree of balance between a bonafide denial of title and a colourable denial of title:

Firstly, it may independently evaluate the plaintiff's title based on the evidence he produces, and then evaluate the resistance to it in terms of the defendant's case. Then it may try viewing the conclusion arrived on the plaintiff's case through the conclusion arrived in defendants case (something like holding a glass in between the eye and the object).

If the vision to the plaintiff's title is not obstructed or blurred, then there is no cloud on plaintiff's title, and if it is not, then there is one (though in actual working, the mind works faster and enables an understanding instantaneously).

And if after this process, the Court holds that the suit is maintainable without a relief of declaration, then subject to the rule of res judicata, the defendant may institute a suit to establish his title.

11.It is clear from the above judgments that wherever there is a real controversy

on the title to the property, a suit for bare injunction can never be sustained. In the

present case, the defendant did not merely stop with raising a pleading by denying the

title of the plaintiff in the written statement. The defendant has substantiated the

defence taken by letting in evidence whereby the title of the plaintiff is

obstructed/blurred and a cloud has been raised over the title of the plaintiff in the suit

property.

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12.In the present case, the defendant has directly questioned the title in the suit

property and the plaintiff has not even established as to where she got the title for an

extent of 20 cents. Both the Courts below lost sight of this crucial fact.

13.In view of the above discussion, the substantial questions of law framed by

this Court are answered in favour of the appellant.

14.In view of the above discussion, the judgment and decree of the Courts below

are hereby set aside and this Second Appeal is accordingly allowed. Considering the facts

and circumstances of the case, there shall be no order as to costs. Consequently,

connected miscellaneous petition is closed.

07.02.2022 Internet: Yes Index: Yes/No KP

To

1.The District Munsif Court, Jayankondaml

2.The Principal District and Sessions Court Ariyalur.

3.The Section Officer V.R.Section, High Court, Madras.

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N.ANAND VENKATESH,J.

KP

Judgment in S.A.No.574 of 2014

07.02.2022

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