TMI Blog2008 (3) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... his sister Rukminibai and that he attested the sale deeds as a witness and identified the Rukminibai as the executant before the Sub-Registrar and therefore, section 41 of TP Act came to the aid of plaintiffs and Damodar Rao was estopped from denying the title of his sister. The High Court in a second appeal arising from a suit for an injunction, could not have recorded such findings, in the absence of pleadings and issue regarding title. We are therefore of the view that the High Court exceeded its jurisdiction under section 100 CPC, firstly in re-examining questions of fact, secondly by going into the questions which were not pleaded and which were not the subject matter of any issue, thirdly by formulating questions of law which did not arise in the second appeal, and lastly, by interfering with the well reasoned judgment of the first appellate court which held that the plaintiffs ought to have filed a suit for declaration. We are conscious of the fact that the suit was filed in the year 1978 and driving the plaintiffs to a fresh round of litigation after three decades would cause hardship to them. But the scope of civil cases are circumscribed by the limitations placed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r registered sale deed dated 7.11.1977 (Ex.B1); that he was put in possession of the suit property by Damodar Rao; that the suit property had been transferred to his name in the municipal records; that he applied for and obtained sanction of a plan for construction of a building thereon; and that he had also obtained a loan for such construction from the Central Government by mortgaging the said property. According to him, when he commenced construction in the suit property, the plaintiffs tried to interfere with his possession and filed a false suit claiming to be in possession. 4. The trial court framed the following issues - (i) whether the plaintiffs are in exclusive possession of the suit sites (house plots)? (ii) whether the defendant has interfered with the possession of the plaintiffs over the suit plots? (iii) whether the plaintiffs are entitled to permanent injunction; and (iv) to what relief. The plaintiffs examined themselves as PW1 and PW2. They examined their vendor Rukminibai as PW4. Puli Malla Reddy and Vadula Ramachandram examined as PW3 and PW5, were the purchasers of two adjacent sites from Rukminibai. One of them (PW3) was the cousin of plaintiffs and wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, defendant led evidence denying that the suit property was given to Rukminibai by way of 'Pasupu Kumkumam'. His vendor Damodar Rao gave evidence that he was the owner of the suit property and he sold it to the defendant under deed dated 7.11.1977 and put him in possession thereof. While plaintiffs alleged that plots were mutated in their names after their purchase, defendant alleged that the suit property purchased by him was a part of plot No.13/776 which stood in the name of Damodar Rao in the municipal records. Neither party produced the order of mutation or any certificate from the municipal authorities, certifying or showing mutation to their names. They only produced tax receipts. The tax receipts produced by plaintiffs showed that they had paid taxes from 1978 onwards, that is for a period subsequent to the sale by Damodar Rao in favour of defendant. Plaintiffs did not produce any tax paid receipt to show that the property stood in the name of Rukminibai. Nor did they produce any tax receipt for the period 9.12.1968 (date of purchase by plaintiffs) to 7.11.1977 (date of purchase by defendant). The defendant produced tax receipts to show that the suit property stood ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th his implied consent, Rukminibai represented to be the ostensible owner of the suit property and transferred the same to plaintiffs for consideration. This attracted the provision of section 41 of Transfer of Property Act, 1882 and therefore the transfers in favour of plaintiffs was not voidable at the instance of Damodar Rao or his successor in interest on the ground that Rukminibai was not the owner of the suit property. The High Court consequently held that plaintiffs had established their title in regard to the two vacant sites purchased by them and drew an inference that possession was presumed to be with them by applying the principle of possession follows title. The High Court also held that it was not necessary to plaintiffs to sue for declaration of title, as the question of title could be examined incidental to the question of possession. 9. The said judgment is challenged by the defendant, in this appeal by special leave, on the following grounds : (a) The suit for permanent injunction without seeking declaration of title was not maintainable on the facts of the case. At all events, the High Court ought not to have recorded a finding of fact on a seriously ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue and based on a finding thereon, reverse the decision of the first appellate court? (iv) What is the appropriate decision? Re : Question (i) : 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isturb 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 16. This Court in Sajjadanashin Sayed Md. Vs. 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): ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who was shown as registered owner in the municipal records and who even according to the plaintiffs was the original owner of the property. 19. The first appellate court found that the evidence of plaintiffs and their witnesses as to the title of plaintiffs' vendor Rukminibai was sketchy and inconsistent. It referred to three versions as to how Rukminibai got the property. The first version (as per PW1) was that the suit property belonged to Rukminibai's father and he had given it to his daughter Rukminibai by way of 'Pasupu Kumkumam'. The second version (as per PW2) was that after the death of Rukminibai's father, there was an oral partition between K. V. Damodar Rao and Rukminibai and at that partition, the suit property was allotted to Rukminibai. But both PW1 and PW2 admitted that they did not make any enquiry with Rukminibai about her title. The third version (as per PW4 - Rukminibai) was that Damodar Rao made an oral gift of the plot in her favour by way of 'Pasupu Kumkumam' in the year 1961. She admitted that there was no special occasion for gifting the plot to her in the year 1961, as she was married long prior to 1961. 20. The suit sites ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a oral gift by way of 'pasupu kumkum' under Hindu Law, estoppel and acquiescence, to put forth a case of title, such complicated questions could properly be examined only in a title suit, that is a suit for declaration and consequential reliefs, and not in a suit for an injunction simpliciter. Re : Questions (iii) and (iv) 22. The High Court formulated the following as substantial questions of law: (i) Whether the plaintiffs' suit for permanent injunction without seeking declaration of title is maintainable under law? (ii) Whether the acts and deeds of Damodar Rao (DW-2) made the plaintiffs to believe that Rukminibai is the ostensible owner of the suit property and thus made them to purchase the suit property for valid consideration and, therefore, the provisions under Section 41 of the Transfer of Property Act are attracted and as such DW-2 could not pass on a better title to the defendant under Ex.B-1? (iii) Whether the alleged oral gift of the suit property in favour of Rukminibai by DW2 towards pasupukumkum is legal, valid and binding on DW2 though effected in contravention of the provisions under Section 123 of the Transfer of Property Act? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was led and some arguments were advanced on those aspects. The only averment in the plaint that plaintiffs were the owners of the suit property having purchased the same under sale deeds dated 9.12.1968, did not enable the court, much less a High Court in second appeal, to hold a roving enquiry into an oral gift and its validity or validation of ostensible title under section 41 of TP Act. No amount of evidence or arguments can be looked into or considered in the absence of pleadings and issues, is a proposition that is too well settled. 26. The High Court while reversing the decision of the first appellate court, examined various aspects relating to title and recorded findings relating to title. It held that gifting a property to a daughter or sister by way of 'Pasupu Kumkumam , could be done orally and did not require a registered instrument. Even though there was no independence evidence of oral gift except the assertion to Rukminibai (which was denied by Damodar Rao), the High Court, held that there was an oral gift in her favour. It also accepted the evidence of PW3 and PW5 and plaintiffs, that Damodar Rao negotiated for the sale of the plots representing that they be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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