JUDGEMENT :-
1 Heard the counsel for the parties.
2 The parties are referred to by their rank before the trial court for the sake of convenience.
3 The facts of the case are as follows: the present appellant was the defendant in a suit for permanent injunction, filed by the respondent herein, restraining the defendant from interfering with the suit property which was a vacant site.
4 The suit property was described in the plaint as measuring 110 x 49 feet situated in survey No.67/1aa bearing Khata No.2607 of Chikkakondagola, Hassan. The plaintiff claimed to have purchased the property under a sale deed dated 22.3.1989 and that the Khata in respect of the property was transferred in his name and that he was paying property tax regularly. It was the plaintiffs complaint that the defendant was trying to interfere with the property by putting up a fence on the suit property and therefore, had been constrained to file the suit.
5 The defendant entered appearance in the suit and denied the title of the plaintiff and contended that there was no property which could be identified as the suit schedule property. On the other hand, the defendant described two properties survey No.67/1b and 67/1c in his written statement under schedule A and Schedule B, respectively. It was contended that one B. T. Thimmappa had sold schedule A property, mentioned in the written statement, to one Susheelamma, who in turn had sold it to one Shaw-Sumarmal - from whom the defendant had purchased the same under a registered sale deed dated 16.5.1988. Similarly, Schedule B property was sold by B. T. Thimmappa in favour of one Fathima on 22.5.1963, who in turn, sold it to one Shah-Mongilal on 12.4.1965 and the defendant had purchased it from him under a registered sale deed dated 16.5.1988.
6 It was therefore contended that the suit property is falsely identified as bearing the survey number assigned. The boundaries indicated that the properties described in plaint and schedule A and B of the written statement overlapped. Hence, the defendant contended that the plaintiff was seeking to lay claim to the defendants properties while dubiously describing it as the plaint schedule property.
7 It was contended that the suit property was the very property sold to the line of defendants vendors by the father of the plaintiffs vendor. The so-called sale deed in favour of the plaintiff was contended to be a nullity. The plaintiffs vendor was himself uncertain about his right over the property.
8 The trial court framed the following issues:
(1) Whether the plaintiff proves that he is in lawful possession of the suit schedule property? (2) Whether the plaintiff further proves that defendants are illegally making an attempt to put-up fencing in the suit property as alleged? (3) Whether the plaintiff is entitled for the relief of permanent injunction as sought for? (4) What order or decree?
9 The trial court held all the issues against the plaintiff and dismissed the suit. In an appeal by the plaintiff, the first appellate Court framed the following points for consideration.
1. Whether the plaintiff proves that he is in lawful possession of the plaint schedule property? 2. Whether the plaintiff proves that defendant has illegally interfered by putting up fence around the plaint schedule property thereby interfering with the possession of the plaintiff? 3. Whether the plaintiff is entitled for the relief of permanent injunction? 4. Where it is necessary to permit the appellant to adduce additional evidence as prayed? 5. Whether the judgment and decree passed by the court below is erroneous calling for interference by this court?
10 The first appellate court having reversed the findings of the trial court, this appeal is filed. This court has framed the following substantial questions of law while admitting the appeal. Whether the lower Appellate Court was justified in granted a decree for permanent injunction only on the basis of the sale deed, tax paid receipt, khata endorsement, when the trial court had recorded a finding that the plaintiff has not established his title? at the time of final hearing, the substantial question of law was reframed as under and the next following additional substantial questions of law where framed on which the counsel have addressed arguments:
i) Whether the first appellate court could have granted a decree fro permanent injunction in favour of the plaintiff when the very basis of his title and the identify of the suit property was disputed by the defendant who claimed better title? ii) Whether the suit for bare injunction could be proceeded with in the face of a serious dispute regarding title? What is the general principle applicable to the case on hand? iii) Whether the first appellate court had failed in its function in not framing appropriate points for consideration in deciding the appeal?
11 The counsel for the appellant contends that in the wake of the defendant having raised a serious dispute as to the basis of the title of the plaintiff, as there was no property available to his vendor which could be conveyed under the sale deed, under which the plaintiff claimed title. And in the face of evidence adduced to establish that the very property had been disposed of by the father of the plaintiffs vendor to third-parties and which were ultimately purchased by the defendant under two registered sale deeds, and those properties being the properties described in the written statement at Schedule A and Schedule B thereto, are the very properties which would be over-lap the so-called suit schedule property-the very existence and identity of which was seriously disputed it is contended that the first appellate court was not justified in proceeding to reverse the judgment of the trial court and decreeing the suit for permanent injunction in favour of the plaintiff.
12 It is contended that the property in dispute being a vacant site, which is not physically possessed and when the plaintiff and the defendant are both claiming to hold title to it and as there was abundant evidence to establish the defendants title while the identify of the suit property was in serious dispute the first appellate court was not justified in holding that title was not relevant as the description of the properties was distinct and separate. It is contended that this approach of the first appellate court was contrary to the general principal enunciated by the apex court on a review of the case law on the point in Ananthula Sudhakar Vs. P. Buchi Reddy, AIR 2008 SC 2033.
13 It is further contended that the first appellate Court has failed in its function in not having framed appropriate points for consideration. This is apparent from the fact that the issues framed for itself by the trial court have been reproduced, verbatim, as points for consideration by it which has resulted in the first appellate court proceeding erroneously to arrive at baseless findings while negating a well considered judgment which was rendered in accordance with settled principles of law. Reliance is placed on the following decisions as regards the scope of power of the appellate court and the duty cast on the court to frame appropriate points for consideration. (a) Khatunbi Vs. Aminabai, 2007 (2) BLR - 900 (b) G. S. Patil Vs. BM Pujar, 1978 (2) KLJ 166 (c) Choma Nayaka Vs. Rama Nayaka, ILR 1988 KAR 1902.
14 The Counsel would hence submit that the appeal be allowed and the suit dismissed. Per contra, the counsel for the respondent seeks to justify the judgment of the first appellate Court. It is sought to be pointed out that as rightly held by the first appellate Court, the suit was one for bare injunction There was no warrant to address the title of the parties. This was especially so when the identity of the properties was completely different as is plainly evident the plaintiff was claiming as the owner of property in Survey No.67/1a1a whereas the defendant was claiming title to property in 67/1b and 67/1c. It is this glaring circumstance that has prompted the first appellate court to address the case with regard to the question of lawful possession as being the only relevant issue in deciding the suit. And therefore, the Counsel would submit that the appeal be dismissed.
15 In the facts and circumstances it is seen that the first appellate court has negated the case of the defendant and his serious challenge to the title of the plaintiff and his vendor and even the very existence of the plaint schedule property, on the ground that the suit was not one for a declaration of title and further that the defendant not having challenged the plaintiff in the course of his cross-examination, as regards the claim of the defendant that what is shown as the plaint schedule property actually forms part of the Schedule a and B properties described in the written statement. This reasoning of the first appellate court requires to be examined in the light of settled principles of law as pertaining to the facts and circumstances of the case.
16 In the case of Ananthula Sudhakar, Supra, the apex Court has addressed the scope of a suit for prohibitory injunction relating to immovable property and has lucidly explained the general principles in this regard as follows:
17 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.
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.
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 claming the relief of possession.
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 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.
18 We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiffs title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a persons 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 plaintiffs 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 discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiffs 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.
19 In a suit for permanent injunction to restrain the defendant from interfering with plaintiffs 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.
20 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 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 question 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.
21 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 Uthirasomasundareswar Temple V/s. 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 plaintiffs 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 V/s. Narayanan Nair, AIR 1994 SC 152: (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 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 judicate. 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/s. Alagammal AIR 2005 SC 4004: (2005) 6 SCC 202.
22 This Court in Sajjadanashin Sayed Md. V. Musa Dadabhai Ummer, (2000) 3 SCC 350, noticed the apparent conflict in the views expressed in vanagiri and sulochana Amma 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.
23 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 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 is 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.
24 It is clear that the case on hand is one as is contemplated under paragraph 14 of the above judgement of the apex court. In this view of the matter, the first appellate court has failed to follow the above established principle in addressing the dispute and therefore, the first and the second substantial questions of law would have to be answered in the negative on the basis of the above said general principle.
25 Insofar as the third substantial question of law is concerned, a perusal of the judgment of the trial court shows that it has properly dealt with the oral and documentary evidence adduced by the parties in deciding the issues on which the parties went to trial. Though the plaintiffs title and that of his vendor as well as the identity of the property having been disputed by the defendant- the plaintiff did not produce any documents in support of his vendor title. The first appellate court has, summarily, reversed the finding on the footing that the trial court was in error in addressing the title of the parties in a suit for bare injunction. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing on both questions of fact and law. The judgment of the first appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons on all the issues arising and on the contentions put-forth. The task of an appellate Court affirming the findings of the trial court is an easier one. The appellate Court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, would ordinarily suffice (See: Girijanandini Devi V. Bijendra Narain Choudhary, AIR 1967 SC 1124 ). The first appellate Court is a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final court of law, in the sense that its decisions on a question of law even if erroneous may not be vulnerable before the High Court in second appeal, because the jurisdiction of the High Court does not extend to correcting errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law is a substantial question of law. In this regard, the apex court has however held that a failure to discharge the duty cast on it as a Court of first appeal would be a substantial question of law (See Santosh Hazari V. Purushottam Tiwari, (2001) 3 SCC 179.
26 In the present case on hand, the first appellate Court has failed in its duty in framing appropriate points for consideration. The first appellate court has through it fit to re-consider the very issues framed by the trial court as points for consideration in the appeal, but has restricted its examination of the material to finding a case for the plaintiff while discarding the material evidence of the defendant and the findings of the trial court as to the serious dispute regarding the title of the plaintiff and the very identity of the suit property.
27 In the facts and circumstances of the case, the approach of the first appellate court was inconsistent with the first principle that ought to have been applied when title to the property in a suit for bare injunction is shown to be clouded. Hence, the proper course in a case of this nature is to relegate the parties to a comprehensive suit for declaration, title and consequential reliefs. In this view of the matter, the third substantial question of law is answered in the affirmative. The appeal is accordingly allowed and the suit stands dismissed with costs.
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