A.P. Subbarayudu vs R. Abdul Khader (died) per L.Rs

P.S. Narayana, J.—Heard Sri Ram Prasad, learned Counsel representing the appellant and Sri Raghuveer, learned Counsel representing respondents 2 to 7, the legal representatives of the 1st respondent.

This Court on 2.4.1990 made the following order:

Admit. The substantial questions of law are stated in the ground Nos. 1 to 6 of the Second Appeal.

The said grounds referred to supra appear to be a bit elaborate. However, the said grounds raised by the appellant are as hereunder:

Whether the finding of the lower appellate Court holding that the suit of the respondent for bare injunction without seeking relief of declaration of title to the suit property is maintainable in law based upon the passage extracted from the Text Book of Prof. G.C.V. Subba Rao on The Law of Specific Relief Act, 2nd Edition at page 647, which in turn is an extract from AIR 1931 Privy Council page 89 that ''Nobody is obliged to bring a declarative suit. The party does not lose his subsisting right because he does not sue for declaration'' based upon the provisions of Section 34 of the Specific Relief Act, 1963, totally ignoring that the respondent was in possession of the suit room only as a trespasser on the date of the suit and as such is not entitled to have indulgence of a Court for an equitable relief to be granted within the discretion of the Court under that Section?

When the recitals in Exs.B1 to B3, A2 and B5 relating to the boundaries for the house bearing No. 39/12 donated to the predecessor-in-title of the appellant and purchased by him under Exs.B1 to B3 the sale certificate, delivery receipt etc., issued by the Court of Principal Subordinate Judge, Kurnool being one and the same and tally whether the lower appellate Court has not committed an error that the subject matter of the original Ex.A2 did not extend right up to the line of DG shown in Ex.A1 conveying room EFGD also to the appellant in the Court auction?

Whether the finding of the lower appellate Court that the subject matter purchased by the appellate under Exs.B1 to B3 in Court auction did not extend up to the line DG shown in Ex.A1 as per the recitals in the original Ex.A2 does not amount to erroneous interpretation of the recitals in Ex.A2, and Exs.B1 to B3 and B5 which has resulted in this erroneous conclusion?

Having that the failure on the part of the parties to the suit or by the Courts below not asking the Commissioner-DW.3 to take the measurements of the respondents'' and appellant''s houses and the suit room at the time of local visit made by him for resolving the question as to whether the suit room was included in the subject matter of Ex.A2 or not and having found that it is not inclined to record a categorical finding whether on the material available on record, it should be held that the suit room was part and parcel of or that it was not part and parcel of subject matter of Court sale covered by Exs.B1 to B3, whether the lower appellate Court has not committed an error in arriving at a hasty conclusion that the subject matter purchased by the appellant under Exs.B1 to B3 does not extend up to line GD in the plaint sketch, without remanding the case to the lower Court for that purpose holding that it would cause much harassment to the parties as the suit itself not being one for declaration of title?

When the suit filed by the respondent against the appellant being one for mere injunction restraining the appellant and his men from interfering with his possession and enjoyment of the room marked EFGD covered by the provisions of Section 38 of the Specific Relief Act, 1963, whether the lower appellate Court while reversing the judgment and decree of the trial Court has not committed an error in granting permanent injunction in favour of the respondent apart from provisions of that Section especially when the respondent admittedly has come into possession of the room in dispute a few days prior to the suit high- handedly as a trespasser, when his right to the room is disputed by the appellant and when the respondent failed to establish his right by filing any document of title or any other documents or independent oral evidence apart from his own interested evidence to prove his legitimate possession and enjoyment of the suit room?

When the respondent as trespasser has no subsisting right to the room in law, is he entitled for an equitable relief of permanent injunction in his favour and whether the lower appellate Court has not committed an error in relying upon the decisions cited before it which are distinguishable from the facts arising in this case as they relate to granting of temporary injunction pending the suit or suits filed for declaration of title and injunction?

Sri Ram Prasad, learned Counsel representing the appellant would submit that a suit for mere injunction without praying for declaration of title, in the facts and circumstances, cannot be maintained. The learned Counsel also placed strong reliance on the decision of the Division Bench of this Court in Cultor Food Science Inc. Vs. Nicholas Piramal India Ltd. and Others, : . The learned Counsel also would further contend that the documentary evidence placed before the Court, apart from the oral evidence, would clearly go to show that the appellant- defendant in the suit as auction purchaser is the owner of this portion of the property also, for which the sale certificate and the boundaries clearly establish the same; hence there cannot be any dispute or controversy that the appellant-defendant is the owner of the property and in view of the same, the learned Counsel would contend that a true owner of the property cannot be restrained by means of a perpetual injunction. The counsel while further elaborating his submissions would maintain that either Ramakka or atleast the heirs concerned with Ramakka may have to be examined in the peculiar facts and circumstances and in view of the same, the matter either may be remanded or atleast a finding may be called for by giving opportunity to the parties to let in further evidence to be recorded in relation thereto. The learned Counsel also had drawn the attention of this Court to different provisions of the CPC in this regard.

Per contra, Sri Raghuveer, learned Counsel representing respondents 2 to 7, the legal representatives of 1st respondent-the original plaintiff, would maintain that for sufficiently a long time the respondents have been in possession of the property and the mere fact that the declaration of title had not been prayed for by that itself the plaintiff cannot be non-suited and hence the appellate Court had arrived at a correct conclusion while allowing the appeal and had observed while granting the relief that the defendant, his men etc., are restrained from interfering with the plaintiff''s peaceful possession and enjoyment of the suit room shown as DEFG in the plaint plan-Ex.A1, till he is evicted therefrom in due course of law. While pointing out to the said relief granted by the appellate Court, the learned Counsel would maintain that the appellate Court arrived at the correct conclusion and if for any reason, after a long lapse of time, the same to be disturbed by this Court in the Second Appeal, again the appellant-defendant-Court auction purchaser may resort to taking of forcible possession and in the facts and circumstances liberty may be given to the appellant-defendant to file appropriate suit praying for the relief of recovery of possession, if the parties are so advised. The learned Counsel also explained certain facts and placed reliance on the decisions in M. Kallappa Setty Vs. M.V. Lakshminarayana Rao, ; Potturi Saraswati v. Vallabhaneni Veerabhadra Rao 1985(1) ALT 1 ; Chepana Peda Appalaswamy Vs. Chepana Appalanaidu and Others, and Seera Simhachalam and another Vs. Pediredla Simhachalam and others, :.

Heard the learned Counsel for the parties.

The substantial questions of law, on the strength of which this Court on 2.4.1990 made the admission already had been referred to supra. The twin questions which were argued in elaboration by both the counsel are as hereunder:

Whether the suit as framed for mere injunction without praying for the relief of declaration of title in the facts and circumstances be said to be maintainable?

Whether the appellant-defendant-auction purchaser, being the true owner of the property, be restrained by way of perpetual injunction in the light of the provisions of Specific Relief Act, 1963?

On a careful reading of the substantial questions of law, on which the admission of the Second Appeal was made and the present questions which were argued in elaboration, in substance the substantial questions raised appear to be the same.

The parties hereinafter would be referred to as the plaintiffs and defendant.

The plaintiff, one R. Abdul Khader, originally instituted the suit OS.No. 761 of 1982 on the file of the II Additional District Munsif, Kurnool, for the relief of mere perpetual injunction and the Court of first instance, after recording the evidence of PW.1, DWs.1 to 3, marking Exs.A1 to A3 and Exs.B1 to B9 and also Exs.C1 to C7, came to the conclusion that a suit for mere injunction with out praying for the relief of declaration of title, in the facts and circumstances, cannot be maintained and also further came to the conclusion that the defendant, being the true owner, cannot be restrained by means of such injunction. The matter was carried by way of appeal AS.No. 38 of 1987 on the file of II Additional District Judge, Kurnool and the learned Judge reversed the same by making a modified order as already specified supra. Aggrieved by the same, the defendant carried the matter by way of Second Appeal, the present appeal, and inasmuch as the said Abdul Khader died, his legal representatives- respondents 2 to 7, now contesting the litigation, were brought on record as per Court order in CMP.No. 15611 of 2002 dated 14.7.2006.

PLEADINGS OF THE PARTIES

The plaintiff pleaded in the plaint as hereunder: "The plaintiff is the owner of the house bearing door No. 39/30 which is shown as ABCDGFE in the plaint plan filed along with the plaint, which is his ancestral property. The house bearing door No. 39/12 originally belonged to one Mahboob Bi, the sister of the plaintiff. The said house was brought for sale by the creditors of Mahaboob Bi and the same was purchased in Court auction by the defendant which is shown as BHEFI in the plan, a year ago. The room was shown as EFGD belongs to the plaintiff and he has been in possession and enjoyment of the same. The plaintiff submits that the room EFGD was never brought for sale along with the house No. 39/30. But the defendant out of his greediness wants to usurp the rights of the plaintiff in room shown as EFGD and is attempting high- handedly to take possession of the said room though he has no manner of right over the same. In fact the plaintiff submits that the defendant came and attempted to pull down the EF wall of the room and occupy the same. Then the plaintiff intervened and resisted the high-handed act of the defendant from pulling down the wall EF and also gave a police report in that regard. The plaintiff apprehends that the defendant being powerful and influential is bent upon to occupy the said room high-handedly though he has no right, title and interest over the same. The action of the defendant is illegal and has to be prevented by an injunction. Plaintiff submits that the said room EFGD is rented out by the plaintiff to one Burra Ramakka and enjoying the rents derived therefrom. Hence his possession has to be protected by granting an injunction".

In the written statement it was pleaded as hereunder:

The allegations in para 3 of the plaint are true to the extent that the plaintiff is the owner of the house bearing No. 39/30. But it is not correct to say that the house marked as ACBDGFE in the plaint plan belongs to the plaintiff. It is true that the house No.39/12 originally belongs to one Mahaboob Bi and the said house was brought for sale by this defendant for realizing the decree amount due to him. But it is not correct to say that the creditors have brought the property for sale. It is also true that this defendant has purchased the house which is marked as BHIEF, in the Court auction with the clear cut boundaries, which is marked as BHIEFGDE in the plan. It is not correct to say that this defendant was never brought for sale of the EFGD portion along with the house bearing No.39/12. It is also not correct to say that out of his greediness this defendant wants to usurp the rights of the plaintiff of his room shown as EFGD and is attempting high-handedly to take possession of the room EFGD. The room marked EFGD is a connected room to the house marked BHIE with an interlink by way of door and window. It is also false to say that this defendant is trying to pull down EF wall of the room EFGD and was to occupy the same.

The allegations that the plaintiff is the owner of the EFGD room is farfetched. This defendant has brought the house No.39/12 for sale in the Court auction. After purchasing the house BHIEGDE this defendant is enjoying the same in his own right and absolutely. This defendant has let out EFGD to one municipal employee namely Burra Ramakka and another portion marked BHIEF is let out to one postman Ramaiah. This defendant, from the date of the purchase of the house in Court auction, is enjoying the same and paying house tax. At no time, the plaintiff had any right over the portion marked EFGD and for the first time with a greedy intention to knock away the room, he has opened a door D3 marked in the plan with an intention to show that it is a connected room for his house. If really the room is connected with house No.39/30, the door D4 in plan could have been there at all. Further there is a connecting door between E and F which was a connecting link between the two portions, which was high-handedly closed down by the plaintiff to show that there is no connection between EFGD with other portion. The plaintiff with a greedy intention to convert the room EFGD as his own, made the tenant of this defendant believe that the western wall of room i.e., the wall between ED in plan is a joint wall and he persuaded her to agree for opening a door way so that she can have free access to open space situate on the western side of room. The said tenant of this defendant ignorantly without realizing the consequences agreed for the same and the plaintiff in or about July or August, 1982, opened the door way marked as D3. Not only he has opened the door way D3 in ED wall, the plaintiff has closed down the connecting door and window existing in wall between E and F with an intention to show that there is no connection between BHIE and EFGD. The plaintiff has done all these things high-handedly without any manner of right and with an intention to grab the room EFGD.

This defendant brought the house bearing No.39/12 including room EFGD for sale and purchased in the Court auction. The boundaries clearly show that EFGD portion is within the boundaries of the house 39/12 and it does not belong to the plaintiff. In fact on the western side of room, there is open space not of the plaintiff. As this defendant is the owner of the house bearing No.39/12, including EFGD portion, when this defendant came to know about the door way opened by the plaintiff stealthily, this defendant attempted to close the same and there was police complaint. This defendant showed all the documents to the police authorities and after satisfying themselves directed this defendant to carry out the work of closing down the door D3. Thereon this defendant came to the Court and obtained interim injunction on all the false allegations. Thus there are no bonafides in the suit and the plaintiff is not the owner of the EFGD portion and it is this defendant that is the owner of the room EFGD and enjoying the same in his own right by letting out and Burra Ramakka is the tenant of this defendant. Thus this suit is not maintainable. Hence the suit for bare injunction is not maintainable without there being a prayer for title.

On the strength of these pleadings, the Court of first instance had settled the following issues and additional issue:

Whether the plaintiff is entitled for permanent injunction as prayed for?

To what relief?

ADDITIONAL ISSUE:

Whether the suit for bare injunction without declaration of title is maintainable.

As already referred to supra, PW.1 was examined and Exs.A1 to A3 were marked for plaintiff. Likewise DWs.1 to 3 were examined and Exs.B1 to B9 and Exs.C1 to C7 were marked on behalf of the defendant. As already referred to supra in the Court of first instance, the original plaintiff was unsuccessful and the same was carried by way of appeal AS.No.38 of 1987, wherein the II Additional District Judge framed the following points for consideration:

Whether the lower Court was right in holding that the plaintiff ought to have sought a declaration of his title to the suit room besides asking for the relief of permanent injunction and that his suit for bare injunction, is not maintainable?

Whether the lower Court was right in arriving at the conclusion that the suit room was a part and parcel of the subject matter of the settlement covered by Ex.A2, besides its being a subject matter of the Court sale evidenced by Exs.B1 to B3?

Whether, even assuming that the plaintiff was in possession of the suit room as a trespasser without his being able to establish any sort of his title thereto, he was not entitled to any injunction against the defendant, whether limited or comprehensive in its scope against the defendant? The learned Judge discussed the points at paragraphs 7 to 10 and ultimately allowed the appeal to the limited extent of granting injunction restraining the defendant and his men not to interfere with the plaintiff''s possession of the suit room till the plaintiff is evicted from the suit room shown as DEFG in the plaint plan in Ex.A1 by due process of law. Aggrieved by the same, the present appeal is preferred.

Several of the facts are not in serious controversy between the parties. On the first question whether a suit for perpetual injunction simplicitor be maintained in the absence of a prayer for declaration of title, this Court is of the considered opinion that a broad proposition that a suit for mere injunction cannot be maintained without declaration of title, cannot be laid down. It would depend upon the facts and circumstances of the given case. The learned Counsel for the appellant placed strong reliance on the decision of the Division Bench in CULTOR FOOD SCIENCE INC (supra 1), wherein the Division Bench taking into consideration the facts of the particular given case held that whether temporary injunction can be granted when on the allegation that the suit agreement is vitiated by fraud, even if it is so, agreement is not void but only voidable and nothing on record is placed to show when plaintiff came to know of the alleged fraud or steps had been taken to avoid the contract and the suit filed for mere injunction without seeking declaration, that suit agreement is void and granting of injunction restraining arbitrator from proceeding with arbitration in the absence of details of fraud in the plaint and in view of the finding that arbitral Tribunal is having jurisdiction to decide the issue referred to it not legal and arbitral Tribunal has jurisdiction to decide the validity of the agreement and the question of existence of any dispute between the parties and merely because the arbitration has to take place in a foreign country and considerable amount is spent to participate in the proceedings, the same may not be a ground for grant of injunction and granting of injunction would amount to holding that the suit agreement is void and such relief cannot be granted without seeking relief of declaration about the alleged invalidity of the suit agreement paying necessary court fee on the said relief. It is needless to say that the learned Division Bench came to the said conclusion in the backdrop of the facts of the said case.

Reliance was placed on M.K.Setty''s case (supra 2), wherein the Apex Court held that if the plaintiff in possession of the suit property, he can, on the strength of his possession, resist interference from defendant who has no better title than himself and get injunction restraining defendant from disturbing his possession. Reliance also was placed on S. Simhachalam''s case (supra 5), wherein the learned Judge of this Court held that when plaintiff''s possession was threatened, he can sue for mere injunction without a prayer for declaration of his rights. In Chepana Peda Appalaswamy''s case (supra 4) it was held that as a matter of law, a suit for bare injunction without a prayer for declaration for title is maintainable. Reliance also was placed in Potturi Saraswati''s case supra 3). In the light of the decisions referred to supra and also in the light of Section 34 of the Specific Relief Act, 1963 and also the other provisions of Sections 35, 36, 37 and 38 of the aforesaid Act, this Court is of the considered opinion that the contention advanced by the learned Counsel for the appellant that under no circumstances a suit for mere injunction can be maintained without praying for the relief of declaration of title, cannot be accepted. Hence, this Court is of the opinion that the appellate Court recorded proper findings in relation thereto and arrived at the correct conclusion that in the facts and circumstances of the case a suit for mere injunction can be maintained even without praying for the relief of declaration of title.

The next question which had been argued in elaboration is that inasmuch as the appellant as defendant is a Court auction purchaser and being the true owner of the property, such party cannot be restrained by means of an injunction. Prima facie this contention or argument advanced by the learned Counsel appear to be very attractive. Section 38 of the Act referred to supra deals with perpetual injunction when granted. Sub-Section (1) specifies subject to the other provisions contained in or referred to by this chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour whether expressly or by implication. The words ''to prevent the breach of an obligation in his favour'' would assume some importance. If, on facts, the Court to arrive at a conclusion that this portion of the property also is covered by the sale certificate-Ex.B1, it is needless to say that the appellant, being the Court auction purchaser, would become the true owner of this property and against such true owner, the question is whether a suit for mere injunction by the original plaintiff be maintained?

The evidence of PW.1, DWs.1 to 3, Exs.A1 to A3, Exs.B1 to B9 and C1 to C7 had been dealt with in elaboration both by the Court of first instance and also by the appellate Court and findings in detail had been recorded. The appellate Court while answering point No.2 while commencing itself observed on the question as to whether the subject matter of Ex.A2 extended right up to the line shown as DG, observed as follows:

I am constrained to say that the lower Court recorded mutually inconsistent findings or rather made mutually conflicting observations and the learned Judge referred to paragraphs 18 and 19. The learned Judge while discussing to show that item 2, the subject matter of Ex.A2 and item 1 mentioned in the property schedule of Ex.A3 are not one and the same, and further discussing about the boundary recitals observed as follows:

The learned Judge had taken into consideration the boundary recitals and further dealt with the documentary evidence available on record also at length and recorded findings in detail. On a careful analysis of the whole oral and documentary evidence available on record, the evidence of PW.1, DWs.1 to 3, Exs.A1 to A3 and Exs.B1 to B9 and C1 to C7, inasmuch as the factual findings had been recorded by the appellate Court, and these findings being prima facie well considered factual findings, such findings cannot be disturbed in a Second Appeal. Hence, in the light of the peculiar facts, this Court is of the considered opinion that the appellate Court arrived at the correct conclusion.

Inasmuch as there appears to be some factual controversy relating to whether this piece of property would also fall within the sale certificate in question, Ex.B1 or not, this question may have to be further gone into. There is some controversy whether Ramakka was inducted in possession either by the plaintiff or by the defendant in relation to this portion and there also appears to be some controversy whether Ramakka was alive or dead and in this regard one is asserting that the said Ramakka may be examined and another is asserting that the said Ramakka is no more. This question need not detain this Court any further especially in the light of the reasons recorded by the appellate Court. When there is some doubt relating to the identity of the property, the appellate Court is well justified in granting the limited injunction, such possession not to be disturbed except by due process of law. This Court is not inclined to express any further opinion inasmuch as all the rights of the parties are left open to be agitated in a regular suit, which may be instituted for the purpose of establishing whether the disputed property also forms part and parcel of the property which is covered by the sale certificate, by virtue of which the appellant-defendant is said to have purchased the property in Court auction. Inasmuch as the liberty is being given to the parties to agitate their rights in a properly framed suit, the limited relief granted by the appellate Court need not be disturbed.

With the above observations, the Second Appeal is dismissed. The parties are directed to bear their own costs.