K.V.L Jayasimha vs A.Ananya
2021 Latest Caselaw 995 Tel

      HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO

            CIVIL REVISION PETITION NO.1233 OF 2020

                                  O R D E R:

(Per Sri Justice M.S.Ramachandra Rao)

This Revision is filed under Article 227 of the Constitution of

India challenging the order dt.29.11.2019 in I.A.No.1901 of 2018 in

O.S.No.1004 of 2014 on the file of the XXV Additional Chief Judge,

City Civil Court, Hyderabad.

2. The petitioner in this Revision is the defendant in the suit.

3. The petitioner and B. Padmaja had got married in 1990 and had

lived as husband and wife till 2007. Differences arose between them and

they had allegedly entered into a Memorandum of Understanding-cum-

settlement on 09.06.2006; and under the terms of the said document, the

property, which is the subject matter of O.S.No.1004 of 2014, i.e., Flat

No.102, in First Floor, admeasuring 1500 square feet plinth area in Star

Homes Apartments together with 48 square yards of proportionate

undivided share in premises No.1-2-376/1/A, Mega City No.286, Ward

No.1, Block No.2, Gagan Mahal, Domalguda, Hyderabad within the

boundaries specified in the schedule, was settled in the name of the

petitioner apart from other properties. The petitioner is in possession of

the said property.

4. Subsequently, a Pre Litigation Case (PLC) No.156 of 2006 was

filed before Lok Adalat on the basis of the Memorandum of

Understanding-cum-settlement and the marriage between the petitioner MSR,J ::2:: crp_1233_2020

and B. Padmaja was dissolved in the said Pre Litigation Case on

16.05.2007.

5. The respondent is the grand daughter of B.Padmaja and was born

to A.Madhuri, daughter of B.Padmaja.

O.S.No.1004 of 2014

6. The suit O.S.No.1004 of 2014 had been filed by the respondent

herein against the petitioner for recovery of possession of the above suit

schedule property and for damages at the rate of Rs.20,000/- per month

from the date of the suit till delivery of possession by the petitioner.

7. It is the contention of the respondent/plaintiff in the suit that the

suit schedule property was purchased by her maternal grand mother

B. Padmaja under registered sale deed dt.09.07.1999 in her name and

that the respondent is the owner of the property.

8. It is the admitted case of the parties that the respondent was a

minor, aged about 18 months as on the date of execution of the said sale

deed in her favour and admittedly B. Padmaja had represented her in the

said transaction as her guardian.

9. It is the contention of the respondent/plaintiff in O.S.No.1004 of

2014 that the petitioner/defendant was granted permission by her to

reside in the suit schedule property, but the petitioner had committed

certain illegal acts such as threatening the mother of the respondent as

well as filing a false case against the mother and grand mother of the

respondent, and therefore the petitioner was asked to vacate the suit MSR,J ::3:: crp_1233_2020

schedule property through a notice which amounted to termination of

lease. It is her contention that the petitioner did not vacate the suit

schedule property and so she filed through her mother guardian the suit

O.S.No.1004 of 2014 for eviction of the petitioner.

10. Pending the suit, the respondent had attained the age of majority

and the guardian was discharged and the respondent alone is contesting

the suit in her own name.

The stand of the petitioner in O.S.No.1004 of 2014

11. Written statement was filed by the petitioner in the said suit

contending that it was he who had purchased the property with his own

earnings in the name of the respondent, and the respondent's guardian,

i.e., the maternal grand mother, had no source of income.

12. According to him, the suit schedule property, though covered

under the registered sale deed dt.09.07.1999, was the subject matter of a

deed of Memorandum of Understanding-cum-settlement dt.09.06.2006

and the respondent cannot claim ownership or any legal right over the

property, more so when she is not in possession thereof.

13. The petitioner denied that he had done any illegal acts such as

threatening the mother of the respondent or filing false case against the

mother and grand mother of the respondent.

14. He contended that there is no question of termination of any

licence under the legal notice issued by the respondent and that he is not MSR,J ::4:: crp_1233_2020

liable to pay damages at Rs.20,000/- per month from the date of the suit

till delivery of possession.

15. He contended that the respondent had no right to claim ownership

of the suit schedule property under the guise of the sale deed

dt.09.07.1999 in view of the deed of Memorandum of Understanding-

cum-settlement dt.09.06.2006.

O.S.No.246 of 2013 (renumbered as O.S.No.876 of 2019)

16. It is also not in dispute that prior to filing of O.S.No.1004 of 2014

by the respondent, the petitioner had filed O.S.No.246 of 2013 before the

X Junior Civil Judge, City Civil Court, Hyderabad for perpetual

injunction restraining B. Padmaja (the maternal grand mother of

respondent in this CRP) and her daughter A.Madhuri (the mother of

respondent in this CRP) from interfering with his possession and

enjoyment over the suit schedule property, which is also the subject

matter of O.S.No.1004 of 2014, except in accordance with law. In the

said suit, the respondent in this Revision is not a party.

17. In O.S.No.246 of 2013, it is the contention of the petitioner that he

married B. Padmaja on 15.04.1990; by that time Smt. A. Madhuri was

studying 7th class; that in 1997, he performed the marriage of

Smt. A. Madhuri; that Smt. A. Madhuri conceived twins after her

marriage in 1998; that the petitioner acquired various properties in

Hyderabad and Bangalore since 1993 and kept them in the name of Smt.

B. Padmaja and he had purchased them from his own income; that out of

the properties acquired by the petitioner, the suit schedule property was MSR,J ::5:: crp_1233_2020

kept in the name of the respondent herein, and another Apartment

No.101 was kept in the name of the respondent's twin sister Anoohya;

that neither B. Padmaja nor A. Madhuri had any source of income for

purchase of the suit schedule property and Flat No.101; that differences

developed between the petitioner and B. Padmaja, and they entered into

a Memorandum of Understanding (MoU) dt.09.06.2006 and filed PLC

No.156 of 2006 before Lok Adalat; that as per the terms of the

Memorandum of Understanding, the petitioner is in possession of the

suit schedule property; thereafter since they were trying to interfere with

his enjoyment in the suit schedule property and were asking him to

vacate it, he had to file O.S.No.246 of 2013 for perpetual injunction as

referred to above.

O.S.No.833 of 2012 and O.S.No.673 of 2016

18. There are two other suits O.S.No.833 of 2012 on the file of the III

Additional Chief Judge, City Civil Court, Hyderabad and O.S.No.673 of

2016 on the file of II Additional Chief Judge, City Civil Court,

Hyderabad.

19. The former was filed by the petitioner to declare that the

properties mentioned in the suit schedule belong to him as per the Joint

Memo filed by the parties in PLC No.156 of 2006, to direct B. Padmaja,

who was the sole defendant therein, to deliver keys of the A schedule

properties attached to the plaint, and in default to hold that he is entitled

to take possession thereof through Court. He also sought for permanent

injunction restraining B. Padmaja from making any structural alterations

in the suit properties and for other reliefs.

                                                                       MSR,J
                                  ::6::                       crp_1233_2020

20. The other suit O.S.No.673 of 2016 was filed by B. Padmaja

against the petitioner and another private company for recovery of

possession of 2nd floor premises of building admeasuring 2265 square

feet in premises No.1-1-287/17 and 1-1-256/8/1, 2 and 3, Street No.3,

Bapunagar, Chikkadpally, Hyderabad and for damages.

Transfer C.M.P.No.589 of 2018

21. The petitioner had earlier filed Transfer C.M.P.No.589 of 2018 in

this Court seeking transfer of O.S.No.246 of 2013 from the Court of X

Junior Civil Judge, City Civil Court, Hyderabad and O.S.No.1004 of

2014 filed by the respondent on the file of XXV Additional Chief Judge,

City Civil Court, Hyderabad to either of the Courts alleging that

common issues are involved in the suits.

22. On 17.09.2018, the said Transfer CMP was dismissed by this

Court on the ground that the petitioner had waited for four years to file

the said Transfer CMP after O.S.No.1004 of 2014 was filed.

Transfer C.M.P.No.71 of 2019

23. However, the petitioner subsequently filed Transfer C.M.P.No.71

of 2019 before this Court to transfer O.S.No.1004 of 2014, O.S.No.246

of 2013, O.S.No.833 of 2012 and O.S.No.673 of 2016 to the Court of II

Additional Chief Judge, City Civil Court, Hyderabad or any other

competent Court.

24. By order dt.01.08.2019, Transfer C.M.P.No.71 of 2019 was partly

allowed by consolidating O.S.No.246 of 2013, O.S.No.833 of 2012 and

O.S.No.673 of 2016; and transferring O.S.No.246 of 2013 and MSR,J ::7:: crp_1233_2020

O.S.No.833 of 2012 from the Courts in which they were pending, to the

Court of II Additional Chief Judge, City Civil Court, Hyderabad.

25. This Court directed that the said suits be decided by the said Court

along with O.S.No.673 of 2016 pending on the file of the said Court, but

this Court declined to transfer O.S.No.246 of 2013 to be tried along with

O.S.No.1004 of 2014, because Transfer C.M.P.No.589 of 2018 had been

rejected earlier by this Court on 17.09.2018.

The renumbering of OS.No.246 of 2013 as O.S.876 of 2019

26. As a result of the transfer of O.S.No.246 of 2013 from the Court

of X Junior Civil Judge, City Civil Court, Hyderabad to the Court of II

Additional Chief Judge, City Civil Court, Hyderabad, the said suit came

to be renumbered as O.S.No.876 of 2019.

I.A.No.1901 of 2018 in O.S.No.1004 of 2014 filed by petitioner under Sec.10 CPC

27. The petitioner in the meantime had filed I.A.No.1901 of 2018 in

O.S.No.1004 of 2014 under Section 10 CPC to stay the trial in

O.S.No.1004 of 2014 till conclusion of trial in O.S.No.246 of 2013

which was at that time pending on the file of X Junior Civil Judge, City

Civil Court, Hyderabad.

28. In the said Application, he contended that the cause of action in

the two suits is one and the same, suit schedule property in the two suits

is also one and the same, and the parties in the two suits are claiming

/litigating under the same title.

                                                                         MSR,J
                                       ::8::                    crp_1233_2020

29. He contended that the respondent intentionally and deliberately

avoided to implead B. Padmaja as a party in O.S.No.1004 of 2014 and

that the issues raised in both O.S.No.1004 of 2014 and O.S.No.246 of

2013 are directly and substantially one and the same. He also contented

that if stay of the proceedings in O.S.No.1004 of 2014 is not granted,

there would be conflicting decisions.

The stand of the respondent in I.A.No.1901 of 2018

30. The respondent filed a counter affidavit opposing this Application.

31. She contended that the nature of the suit O.S.No.1004 of 2014 and

the suit O.S.No.246 of 2013 is entirely different and the cause of action

in both the suits is also different.

32. She stated that she was not a party in O.S.No.246 of 2013 and the

cause of action in the suits is not common and the decision in one case

will not operate as res judicata in another case.

33. According to her, suit O.S.No.246 of 2013 is for a mere injunction

in which she is not a party and it cannot be construed that there is

common cause of action, because O.S.No.1004 of 2014 is filed by her

for recovery of possession basing on her title and for revocation of

licence.

The order passed by the Court below in IA No.1901 of 2018

34. By order dt.29.11.2019, the Court below dismissed I.A.No.1901

of 2018.

                                                                             MSR,J
                                     ::9::                          crp_1233_2020

35. It held that both the suits are in respect of the same property and

the parties to the suits are same, litigating though in different capacity,

setting up title in themselves, i.e., title in the petitioner in himself in both

the suits and title in respondent/plaintiff in both the suits.

36. It then noted that an additional issue had been directed to be

framed by the High Court in C.R.P.No.3794 of 2013 on 17.11.2016, i.e.,

whether the relief of restraining defendants in O.S.No.246 of 2013 from

alienating the suit schedule property, can be claimed by the petitioner

without seeking declaration of title.

37. The Court below then observed that though the question of title

has to be looked into in O.S.No.246 of 2013, the Court cannot come to

any conclusion that the issue of title of the petitioner in respect of

O.S.No.246 of 2013 will be directly or substantially decided or not in

O.S.No.246 of 2013 as it is a mere suit for injunction.

38. It however rejected the plea of the respondent that the causes of

action in the present suit and in the earlier suit are not one and the same

and that Section 10 CPC would not apply. It also stated that though

O.S.No.246 of 2013 is a suit for bare injunction, incidentally the trial

Court may have to look into title of both the parties.

39. Having said so, it then held that the question of title of the

disputed suit schedule property cannot be said to be directly and

substantially in issue in both the suits.

                                                                          MSR,J
                                   ::10::                        crp_1233_2020



The present Revision

40. Challenging the same, this Revision is filed.

41. Heard Sri C. Subbarao, learned counsel for the petitioner, and Sri

Bankatlal Mandhani, learned counsel for the respondent.

42. Learned counsel for the petitioner contended that the Court below

erred in dismissing the Application under Section 10 CPC having

categorically observed at para 24 of it's order that the question of title

has to be looked into in O.S.No.246 of 2013, and also observing in para

26 of it's order that O.S.No.246 of 2013 is a suit for bare injunction in

which incidentally the trial Court may have to look into title of both the

parties who set up title to the suit schedule property in themselves.

He contended that the suit filed for eviction by the

respondent/plaintiff against the petitioner is also basing on title and the

question of title to the suit schedule property has to be adjudicated in

O.S.No.1004 of 2014. He placed reliance on the decisions in Sulochana

Amma v. Narayanan Nair1 and Sajjadanashin Sayed Md. B.E. EDR.

(D) by LRs. v. Musa Dadabhai Ummer and others2.

43. Learned counsel for the respondent however supported the orders

passed by the Court below and relied on the judgments in Anathula

Sudhakar v. P. Buchi Reddy (dead) by LRs. and others3 and Aspi Jal

and another v. Khushroo Rustom Dadyburjor4 and Amrutlal and

(1994) 2 SCC 14

(2000) 3 SCC 350

(2008) 4 SCC 594

(2013) 4 SCC 333 MSR,J ::11:: crp_1233_2020

Co., Merchants and Commission Agents, Nizamabad v. Rankids

Impex (P) Ltd., New Delhi5.

The consideration by the Court

44. I have noted the contentions of both sides.

45. Section 10 CPC states:

"10. Stay of suit:-- No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.

Explanation:-- The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action."

46. It is settled law that the object underlying Section 10 CPC is to

prevent Courts of concurrent jurisdiction from simultaneously trying two

parallel suits in respect of the same matter in issue and to avoid two

parallel trials on the same issue by two Courts, so that there is no

possibility of recording of conflicting findings on issues which are

directly and substantially in issue in previously instituted suit. The

fundamental test to attract Section 10 is, whether on final decision being

reached in the previous suit, such decision would operate as res judicata

in the subsequent suit. (National Institute of Mental Health and Neuro

2014 (4) ALD 129 MSR,J ::12:: crp_1233_2020

Sciences v. C. Parameshwara6). Thus, if the matter in the later suit is

found to be directly and substantially in issue in the previously instituted

suit, the later suit is liable to be stayed under Section 10 of CPC. (Gupte

Cardiac Care Center and Hospital v. Olympic Pharma Care (P)

Ltd.7).

47. It has also been held in Aspi Jal (4 supra) that even if many

of the matters in issue are common between the suits, unless the entire

subject matter of the two suits is the same, Section 10 will not apply.

48. From the facts narrated above, it is clear that the petitioner had

pleaded as plaintiff in O.S.No.246 of 2013 (presently O.S.No.876 of

2019) in para 11 that he financed the purchase of the suit schedule

property in O.S.No.1004 of 2014 and the respondent at that time was an

18 month-old baby when it was purchased under the registered sale deed

dt.09.07.1999.

According to him, under the MoU dt.09.06.2006, there was an

agreement between himself and B. Padmaja with regard to sharing of the

properties and other issues; that the MOU is also filed before the Lok

Adalat in PLC No.156 of 2006, and he has been in enjoyment and

possession of the suit schedule property in O.S.No.1004 of 2014 as per

the said MoU. He sought relief of perpetual injunction restraining Smt.

B. Padmaja and her daughter A. Madhuri from interfering with his

alleged possession and enjoyment over the said premises and also sought

(2005) 2 SCC 256

(2004) 6 SCC 756 MSR,J ::13:: crp_1233_2020

an injunction against them restraining them from alienating or interfering

with or selling the same.

In the written statement filed in O.S.No.246 of 2013 by the

defendants i.e., B. Padmaja and her daughter A. Madhuri (the maternal

grand mother and mother respectively of the respondent in

C.R.P.No.1233 of 2020), it is their case that the suit schedule property

was purchased by B. Padmaja for the welfare of the respondent, that the

sale deed dt.09.07.1999 stands in the name of the respondent and the suit

schedule property is the property of the respondent, who was a minor. It

is their contention that half of the sale consideration was given by B.

Padmaja out of her earnings and the remaining amount was gifted by her

father and the petitioner. It is denied that the suit schedule property is the

self acquired property of the petitioner. It is their contention that though

petitioner and B. Padmaja obtained divorce before the Lok Adalat in

PLC No.156 of 2006 by filing a joint memo and they have shared their

properties, and the said memo is part and parcel of the divorce decree

and binds them, the suit schedule property or Flat No.101 are not subject

matter of the divorce decree. They denied that they are attempting to

forcibly evict the petitioner from the suit schedule premises by hiring

unsocial elements and contended that petitioner was residing since 2006

in the suit schedule property with the permission of B. Padmaja.

In O.S.No.246 of 2013, the following issues were framed:

"1. Whether the plaintiff is entitled for the relief of perpetual injunction as prayed for ?

MSR,J ::14:: crp_1233_2020

2. Whether the plaintiff is entitled for the relief of directing Defendants not to alienate, transfer and sell the suit property ?

3. Whether the suit is barred by pecuniary Jurisdiction ?

4. Whether the court fee paid by plaintiff is not proper ?

5. To what relief ?

Additional Issue No.1: Whether the non-carrying of amendment by the plaintiff with the limitation prescribed under Order 6 Rule 18 CPC, the proposed amendment is valid ?"

49. In O.S.No.1004 of 2014, the respondent claimed to be the absolute

owner of the suit schedule property therein and stated that it was

purchased by her maternal grand mother Smt. A. Padmaja under the

registered sale deed dt.09.07.1999, that the petitioner was allowed to

reside in it as a licensee, but because of certain actions on the part of the

petitioner, through a legal notice dt.06.01.2013, the petitioner was asked

to vacate the same.

In O.S.No.1004 of 2014, the following issues are framed:

"1. Whether plaintiff is entitled for the recovery of suit schedule property as prayed for?

2. Whether the plaintiff is entitled to damages as claimed for?

3. Whether termination of license under the legal notice dt. 6.1.2013 is bad in law as pleaded in written statement?

4. Whether the M.O.V. cum settlement deed dt. 9.6.2006 is a valid and enforceable document?

5. Whether the plaintiff has no right to claim ownership of schedule property in view of M.O.U. cum settlement deed dt. 9.6.2006 as pleaded in written statement?

6. Whether there is no proper cause of action to file the suit?

7. Whether the suit is barred by limitation?

MSR,J ::15:: crp_1233_2020

8. Whether the suit is not properly valued as pleaded in written statement?

9. To what relief?"

50. Thus, the respondent bases her relief of recovery of possession in

O.S.No.1004 of 2014 and for damages also on her alleged title to the suit

schedule property which is the same property which is also the subject

matter of O.S.No.246 of 2013 (presently O.S.No.876 of 2019).

The case of the petitioner in both suits is consistent i.e, that he

financed the purchase of the suit schedule property and neither

respondent nor her maternal grand mother had any money to finance it's

purchase under the regd. sale deed dt.9.7.1999.

The case of B. Padmaja who is 1st defendant in O.S.No.246 of

2013 is that the suit schedule property was purchased by her and half of

the sale consideration was given by her out of her own earnings and the

other half was from the funds gifted by her father and the petitioner,

though the sale deed dt.09.07.1999 is taken in the name of the

respondent who was a minor then and that the respondent is the owner of

the suit schedule property.

51. As rightly observed by the Court below, in both the suits, the

question of title to the suit schedule property thus arises for

consideration.

52. Whether the consideration under the sale deed dt.09.07.1999

under which the suit schedule property was purchased in the name of the

respondent was totally provided by the petitioner or was partly provided MSR,J ::16:: crp_1233_2020

by B. Padmaja and partly by the petitioner has to be gone into. If the

former is true, then the petitioner could claim ownership and possession

on the basis of such ownership. If the latter is true, then the petitioner

cannot claim ownership and at best seek to protect his possession by

seeking injunction against unlawful eviction by B. Padmaja and her

daughter A. Madhuri.

53. No doubt, in the order dt.17.11.2016 in C.R.P.No.3794 of 2013,

while dealing with the contention of the defendants in O.S.No.246 of

2013 that the issue of pecuniary jurisdiction framed in O.S.No.246 of

2013 should be decided as a preliminary issue, there are observations to

the effect that in a suit for perpetual injunction simpliciter, normally

issue of title will not directly and substantially in issue and the prayer for

injunction would be decided with respect to possession. This Court, in

that Revision, had dealt with relief (b) sought by the petitioner in

O.S.No.246 of 2013, i.e., "any orders may be granted not to alienate,

transfer, sell the suit property" , and observed that the Court below

should first give a direction to the petitioner to notionally value the said

relief and pay the Court fee since the said relief is not at all valued and

no Court fee was paid on the said relief and fix a specific time for

completing the said exercise and also for filing a neat copy of the plaint.

It also directed the Court below to frame the following two additional

issues:

(i) Whether the relief (b) is not properly valued? And, if so, the valuation of the said relief and the court fee paid thereon are not correct?

(ii) Whether the relief (b) cannot be claimed by the plaintiff without seeking declaration of title? And, if so, whether the suit insofar as the said relief MSR,J ::17:: crp_1233_2020

is to be dismissed by relegating the parties to the remedy by way of comprehensive suit for declaration of title?

54. Thereafter, though the petitioner sought to amend the plaint by

adding relief of declaration of title, the said effort did not fructify and

was rejected by the Court below and confirmed by this Court in Revision

on the ground that the trial had commenced and proviso to Or.VI R.17

CPC operates as a bar.

55. Be that as it may, the question which arises is whether on the basis

of the pleadings in the plaint in O.S.No.246 of 2013 (O.S.No.876 of

2019), can it be said that the issue of title to the suit schedule property

was directly and substantially in issue therein though it is directly and

substantially in issue in O.S.No.1004 of 2014.

56. The question whether the petitioner had financed the purchase of

the suit schedule property under the registered sale deed dt.09.07.1999 or

whether Smt. B.Padmaja who stood as guardian for the respondent

purchased it with her funds, would certainly have to be gone into in

O.S.No.1004 of 2014.

57. According to the petitioner, not only did he finance the purchase

of the suit schedule property but under the Memorandum of

Understanding entered into by him with Smt. B. Padmaja on 09.06.2006,

the property was given to him for his enjoyment and so he is entitled to

continue in possession thereof and he cannot be evicted by the

respondent who has no title thereto.

                                                                                        MSR,J
                                               ::18::                          crp_1233_2020

58. Though the suit O.S.No.246 of 2013 is yet to be decided, the basis

of O.S.No.246 of 2013 is not merely possession as on the date of filing

of the suit by the petitioner, but that this possession is relatable to his

title, i.e., that he was the one who provided the funds for the purchase of

the property in the name of the respondent, who was only 18 months old

as on the date of purchase of the suit schedule property on 09.07.1999.

Therefore, in my opinion, in O.S.No.246 of 2013, for considering the

relief of perpetual injunction, it is necessary for the Court to base a

finding as to the possession of the property substantially on the title set

up by the petitioner; and a finding as to title is necessary for grant of

injunction in O.S.No.246 of 2013 and would be the substantive basis for

grant of injunction.

59. This principle has been referred to in Sajjadanashin Sayed

(2 supra) at para 24 in the following terms:

"24. Before parting with this point, we would like to refer to two more rulings. In Sulochana Amma v. Narayanan Nair (1 supra) this Court held that a finding as to title given in an earlier injunction suit would be res judicata in a subsequent suit on title. On the other hand, the Madras High Court, in Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar Temple v. Rajanga Asari8held (see para 8 therein) that the previous suit was only for injunction relating to the crops. Maybe, the question of title was decided, though not raised in the plaint. In the latter suit on title, the finding in the earlier suit on title would not be res judicata as the earlier suit was concerned only with a possessory right. These two decisions, in our opinion, cannot be treated as being contrary to each other but should be understood in the context of the tests referred to above. Each of them can perhaps be treated as correct if they are understood in the light of the tests stated above. In the first case decided by this Court, it is to be assumed that the tests above-referred to were satisfied for holding that the finding

AIR 1965 Mad 355 : II.R (1965) 1 Mad 232 MSR,J ::19:: crp_1233_2020

as to possession was substantially rested on title upon which a finding was felt necessary and in the latter case decided by the Madras High Court, it must be assumed that the tests were not satisfied. As stated in Mulla, it all depends on the facts of each case and whether the finding as to title was treated as necessary for grant of an injunction in the earlier suit and was also the substantive basis for grant of injunction.

In this context, we may refer to Corpus Juris Secundum (Vol. 50, para 735, p. 229) where a similar aspect in regard to findings on possession and incidental findings on title were dealt with. It is stated:

"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.""( emphasis supplied)

60. The principle laid down in the above decision was followed in

Anathula Sudhakar (3 supra) in para 21 (b), (c) and (d) as under:

"21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:

(a) .... .... ....

(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 Annaaimuthu Thevar v. Alagammal9). Where the averments regarding title are

(2005) 6 SCC 202 MSR,J ::20:: crp_1233_2020

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 straightforward, 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 the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."( emphasis supplied)

61. In my opinion, there are necessary pleadings in O.S.No.246 of

2013 about title to the property and the issue regarding title is also

implied in Issue No.1 in O.S.No.246 of 2013, i.e., "whether the plaintiff

is entitled for the relief of perpetual injunction as prayed for?"

Obviously, the parties would lead evidence on the said aspect and the

Court would have to decide the issue regarding title in O.S.No.246 of

2013.

62. As rightly held in Anathula Sudhakar (3 supra), 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 MSR,J ::21:: crp_1233_2020

to encroach upon his property. In my opinion O.S.No.246 of 2013 falls

in this category.

63. The court should use its discretion carefully to identify cases

where it will enquire into title and cases where it will refer to the

plaintiff to a more comprehensive declaratory suit, depending upon the

facts of the case.

64. In this view of the matter, I am of the opinion that the issue of title

to the suit schedule property is common to both suits, and it is not the

case of the respondent that as an infant 18 months old she purchased the

suit schedule property with her own funds, and it is also her case that her

grand mother by name B. Padmaja represented her as guardian.

Therefore, obviously she would be claiming that her guardian/maternal

grand mother B. Padmaja purchased in her name.

65. In my opinion, the respondent herein, though not a party in

O.S.No.246 of 2013, is claiming through Smt. B. Padmaja and litigating

under the same title as Smt. B. Padmaja has.

66. Therefore, Section 10 CPC is attracted and the Court below had

erred in dismissing I.A.No.1901 of 2018 in O.S.No.1004 of 2014.

67. Accordingly, the Civil Revision Petition is allowed; order

dt.29.11.2019 in I.A.No.1901 of 2018 in O.S.No.1004 of 2014 is set

aside and the said I.A. is allowed; and the proceedings in O.S.No.1004

of 2014 shall remain stayed till conclusion of trial in O.S.No.876 of 2019

on the file of the II Additional Chief Judge, City Civil Court, Hyderabad

(formerly O.S.No.246 of 2013).

                                                                         MSR,J
                                   ::22::                       crp_1233_2020

68. Pending miscellaneous petitions, if any, in this CRP shall stand

closed.

____________________________ M.S.RAMACHANDRA RAO, J

Date: 26-03-2021 Svv