learned Senior Counsel for the respondent that unless and until a
cloud is raised on the title of the plaintiff, it is not necessary that a
declaration of title is claimed. It is submitted that in the absence
of any adverse title being set up against the respondent or any
cloud being raised on the title of the respondent, a suit simpliciter
for injunction was maintainable. Reliance in this regard is placed
on the decision of the Hon'ble Supreme Court in the case of
Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by L.Rs. And
Ors., reported in AIR 2008 SC 2033. It is submitted that the
appellant no.1 had admitted, to be an encroacher, although the
case is that of a prescriptive title against the Government. It is
submitted that as against this, the respondent has an entry, which
has been referred to by the Courts below in the Revenue Record
about the suit property, in their favour. It is, therefore, submitted
that the concurrent finding recorded by the Courts below, does
not require any interference.
16. The Hon'ble Apex Court in the case of Anathula
Sudhakar (supra), had considered the scope of the prohibitory
injunction relating to immovable property under Section 38 of the
Specific Relief Act. The Hon'ble Supreme Court has set out 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. It is held
thus in paragraphs (11.1), (11.2) and (11.3), of the judgment :
“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
to the property is in dispute, or under a cloud, or
where the defendant asserts title thereto and there is
also a threat of dispossession from defendant, the
plaintiff will have to sue for declaration of title and
the consequential relief of injunction. Where the title
of plaintiff is under a cloud or in dispute and he is not
in possession or not able to establish possession,
necessarily the plaintiff will have to file a suit for
declaration, possession and injunction.”
17. It has been further held in paragraph 12 as under :
“12. We may however clarify that a prayer for
declaration will be necessary only if the denial of title
by the defendant or challenge to plaintiff's title raises
a cloud on the title of plaintiff to the property. A cloud
is said to raise over a person's title, when some
apparent defect in his title to a property, or when
some prima facie right of a third party over it, is made
out or shown. An action for declaration, is the remedy
to remove the cloud on the title to the property. On
the other hand, where the plaintiff has clear title
supported by documents, if a trespasser without any
claim to title or an interloper without any apparent
title, merely denies the plaintiff's title, it does not
amount to raising a cloud over the title of the plaintiff
and it will not be necessary for the plaintiff to sue for
declaration and a suit for injunction may be sufficient.
Where the plaintiff, believing that defendant is only a
trespasser or a wrongful claimant without title, files a
mere suit for injunction, and in such a suit, the
defendant discloses in his defence the details of the
right or title claimed by him, which raises a serious
dispute or cloud over plaintiff's title, then there is a
need for the plaintiff, to amend the plaint and convert
the suit into one for declaration. Alternatively, he may
withdraw the suit for bare injunction, with permission
of the court to file a comprehensive suit for
declaration and injunction. He may file the suit for
declaration with consequential relief, even after the
suit for injunction is dismissed, where the suit raised
only the issue of possession and not any issue of title.”
18. The legal position has been summarised in paragraph
17 of the judgment as under :
“17. To summarize, the position in regard to suits
for prohibitory injunction relating to immovable
property, is as under :
(a) Where a cloud is raised over plaintiff's title and
he does not have possession, a suit for declaration
and possession, with or without a consequential
injunction, is the remedy. Where the plaintiff's title
is not in dispute or under a cloud, but he is out of
possession, he has to sue for possession with a
consequential injunction. Where there is merely an
interference with plaintiff's lawful possession or
threat of dispossession, it is sufficient to sue for an
injunction simpliciter.
(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; (2005 AIR SCW 3516). Where the averments
regarding title are absent in a plaint and where
there is no issue relating to title, the court will not
investigate or examine or render a finding on a
question of title, in a suit for injunction. Even where
there are necessary pleadings and issue, if the
matter involves complicated questions of fact and
law relating to title, the court will relegate the
parties to the remedy by way of comprehensive suit
for declaration of title, instead of deciding the issue
in a suit for mere injunction.
(d) Where there are necessary pleadings regarding
title, and appropriate issue relating to title on which
parties lead evidence, if the matter involved is
simple and straight-forward, the court may decide
upon the issue regarding title, even in a suit for
injunction. But such cases, are the exception to the
normal rule that question of title will not be decided
in suits for injunction. But persons having clear title
and possession suing for injunction, should not be
driven to the costlier and more cumbersome remedy
of a suit for declaration, merely because some
meddler vexatiously or wrongfully makes a claim or
tries to encroach upon his property. The court
should use its discretion carefully to identify cases
where it will enquire into title and cases where it
will refer to plaintiff to a more comprehensive
declaratory suit, depending upon the facts of the
case.”
It can, thus, be seen that as far as a suit for injunction
simpliciter, based on possession is concerned, the issue of title
will not be directly and subsequently in issue. In such a case, the
prayer for injunction will have to be decided with reference to the
finding on possession. The Hon'ble Apex Court in the case of
Anathula Sudhakar (supra), has held that in respect of a
property, which is an agricultural land, the possession may be established with reference to actual use and cultivation. Where
the property is vacant site, which is not physically possessed, used
or enjoyed, the principle that possession follows title would apply
and if two persons claim to be in possession of a vacant site, one,
who is able to establish a title thereto, will be considered to be in
possession as against the person, who is not able to establish title.
IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 9 of 2015
Shri Narayan Waingankar,
V/s
Archdiocese of Goa & Daman
CORAM :- C. V. BHADANG, J.
Date : 21st July, 2015
Citation; 2016(3) ALLMR232
By this appeal, the original defendants are challenging
the concurrent finding, by which the suit filed by the respondent/
original plaintiff, for mandatory and permanent injunction, has
been decreed.
2. On hearing the learned Counsel for the parties, the
appeal raises the following substantial questions of law :
1. Whether the suit simpliciter for injunction was
maintainable ?
2. Whether the Courts below were justified in
decreeing the suit in the absence of relief of
declaration of title ?
3. The parties were put to notice and have been heard on
the aforesaid substantial questions of law and the appeal is being
disposed of accordingly.
4. Brief facts, necessary for disposal of the appeal, may
be stated thus :
That the respondent filed a suit against the appellant
no.1. According to the plaint allegations, the respondent is a
religious institution and the suit was filed under the General
Power of Attorney dated 30/06/1994 of father Victor Rodrigues. It
was the material case that by deed of Succession, Gift and
Relinquishment dated 07/06/1934, the respondent was in exclusive
possession and enjoyment of the property known as 'APEM',
situated at Mollem, Tal. Sanguem, bearing Land Registration
No.13977 and surveyed under Survey No.22/1 and 23/1 with the
name as 'MATA' and 'DEVACHEM' respectively. It was contended
that the property 'APEM' comprises of the property better known
as 'MATA' and 'DEVACHEM'. Properties are more specifically
described, including boundaries thereof, in paragraph 2 of the
plaint. According to the respondent, the property consists of
partly paddy field, partly a forest and a barren land. The property
surveyed under Survey No.22/1 better known as 'MATA' is the suit
property.
5. The respondent claimed that the Attorney of the
respondent used to reside at Collem and used to visit the property
periodically. On or about 12/07/2001, when the Attorney visited
the suit property, he noticed that the appellant no.1 (original
defendant) along with masons and labourers, is raising an illegal
structure and has raised a room covered with tiled roof and was
further attempting to extend it on front and back side. It was
further claimed that earlier to that, a foundation was noticed on
01/06/2001. However, at that time, nobody was present at the
site. A complaint was lodged before the Village Panchayat,
Mollem. The said construction comprises of an area of 9 metres x
5 metres i.e. 45 square metres, which is at a distance of about
144 metres from PWD road. According to the respondent, the
appellants have no right, title and interest over the suit property.
It was, in these circumstances, that the suit (R.C.S. No.27/2001)
came to be filed with the following material reliefs :
“(a) That by a Judgment, Order and Decree in the
nature of permanent injunction the defendants, his
familly members, servants, agents be restrained from
interfering in whatsoever nature in the suit property
surveyed under No.22/1 and described in para 3 of
the plaint and from continuing with the work of suit
construction and from occupying and/ or using the
suit construction.
(b) That by a Judgment, Order and Decree of
mandatory injunction, the defendants his family
members, servants, agents be directed to remove the
suit construction and restoring the land underneath
to its original position. ”
6. The appellant no.1 filed written statement and opposed
the claim. It was contended that the respondent has suppressed
material facts and there is no cause of action to file the suit. It
was denied that the respondent is in possession and enjoyment of
property known as 'APEM' bearing Land Registration No.13577
and surveyed under No.22/1 and 23/1 known as 'MATA' and
'DEVACHEM'. It was denied that the property known as 'APEM'
comprises of the properties 'MATA' and 'DEVACHEM'. It was
contended that the property better known as 'APEM' is distinct
and independent property, situated at Mollem, bearing Land
Registration No.13577, surveyed under old Survey No.52 and
enrolled under matriz No.11 and it is bounded on all sides by
property known as 'OLIECHEM MOLA' also known as 'MATA',
situated at Mollem, surveyed under Old Survey No.51, which is
belonging to the Government. Thus, the material defence of the
appellant no.1 was that he is in exclusive possession and
enjoyment of the portion of the said property and has acquired
prescriptive title to the same against the Government. The
contents of the plaint as regards the deed of Succession, Gift and
Relinquishment were denied. It was contended that it was the
father of appellant no.1, who had constructed the hut in the said
property somewhere in 1965 to the knowledge of the Government,
to whom the property belongs. It was contended that the property
in his possession is approximately 3300 square metres. It was
contended that because the old structure was in bad condition, it
was only repaired recently. An application was also sent to the
Village Panchayat on 01/06/1997 to register the said house. That
application is pending. In short, it was contended that the
appellant no.1 has become owner by adverse possession against
the Government.
7. The learned Trial Court framed the following issues :
“(1) Does Plaintiff proves that they are owner in
possession of suit property ?
(2) Does Plaintiffs proves that Defendant no.1
interfered in suit property by raising illegal
structure of 9 X 5 sq.mtrs ?
(3) Does Plaintiff proves that they are entitled for
Mandatory Injunction ?
( 4) What relief ? What Order ?
Addl. Issue (5) : Whether Plaintiff proves that Shri.
Piedade Fernandes is a Lawfully constituted Power
of Attorney of Plaintiff ?”
8. The parties led evidence. The Trial Court answered
the issue no.1 in the negative, however, answered the issue nos.2
to 3 in affirmative and decreed the suit. The learned Trial Court
on the basis of evidence, including that of DW1 found that DW1
had admitted that the encroachment on the land known as 'MATA'
was done by his father. The learned Trial Court further found
that, on his own saying, it was the case of the appellant no.1 in the
written statement (paragraph 6) that he is in possession of the hut
in the property for about more than 35 years i.e. somewhere from
1965. The learned Trial Court, placing reliance on the decision of
this Court in the case of State of Goa Vs. Maruti Sinai @
Ananda Nilcontainai Narcorni Surlekar and others, reported
in 2001(2) GLT 310, found that still it will not be sufficient to
establish prescriptive title over the Government. The suit came to
be decreed, essentially, on the ground that the respondent has a
better title. Feeling aggrieved, the appellants filed an appeal
before the First Appellate Court.
9. The First Appellate Court framed the following points
for determination :
“1. Whether the plaintiff has proved before the trial
Court that the plaintiff is in lawful possession of the
suit property bearing survey No.22/1, situated at
Mollem, Sanguem?
2. Whether the plaintiff proves that the defendant has
encroached into the suit property and has done illegal
construction in the suit property?
3. Whether the impugned Judgment and Order is
erroneous and illegal?”
10. The First Appellate Court has noticed that the
respondent has not asked for any declaration of ownership over
the suit property, but has prayed for injunction on the basis of its
lawful possession. Since the suit is for injunction simpliciter, it
was found that it was not incumbent on the part of the respondent
to prove its title over the suit property and it would be sufficient
for the respondent to prove its lawful possession over the suit
property. The First Appellate Court referred to Form No.I and XIV
pertaining to Survey No.22/1 (Exhibit P-36), in order to find that
the name of the property was mentioned as 'MATA', situated at
Mollem, Sanguem and the name of the respondent was recorded
in the occupant's column along with names of other persons and
also the Government of Goa. The First Appellate Court found that
the respondent was a co-occupant of the suit property. The First
Appellate Court also placed reliance on the Deed of Succession,
Gift and Relinquishment (Exhibit 34) to hold that the respondent
was in lawful possession of the suit property.
11. At this stage, it would be necessary to refer to Civil
Suit No.52/2005 decided on 14/03/2008, of which a copy was
produced at Exhibit 55. That was a suit filed by the respondent
against the Government, which was dismissed. The matter had
come to this Court in First Appeal No.143/2008. That appeal was
allowed to be withdrawn on 11/04/2004 in view of the submission
on behalf of the respondent (appellant in First Appeal
No.143/2008) that due to passage of time, the claim in respect of
the wooden logs, (which was the dispute involved in the suit),
does not survive as the wooden logs are not in existence. This
Court, in view of the fact that the appeal was allowed to be
withdrawn, had observed that the findings recorded by the learned
District Judge in that suit would not survive.
12. Coming to the present case, on behalf of the
appellants, it was urged before the First Appellate Court, that in
view of the judgment in Civil Suit No.52/2005 and the findings
recorded therein, the respondent would have no case against the
appellants. The First Appellate Court had refused to rely on the
judgment (Exhibit 55) on the ground that it was held therein that
there is presumption in favour of the respondent being in
possession of the suit property.
13. The First Appellate Court, after extensively referring to
the evidence of the appellant no.1 in the cross-examination, came
to the conclusion that the construction done by the appellants is
illegal and secondly, the hostile possession against the
Government was also not proved. In that view of the matter, the
appeal was dismissed.
14. It was submitted by Shri Bhobe, the learned Counsel
for the appellants that admittedly, the respondent has filed an
application under Section 14(3) of the Land Revenue Code against
the Government, which would show that even as per the
respondent, it is the Government, which is the owner of the
property. It is submitted that in such circumstances, a cloud
having been raised on the title over the said property, the
respondent ought to have filed a suit for declaration of their title
and the suit simpliciter for injunction was not maintainable.
15. On the contrary, it is submitted by Shri Pereira, the
learned Senior Counsel for the respondent that unless and until a
cloud is raised on the title of the plaintiff, it is not necessary that a
declaration of title is claimed. It is submitted that in the absence
of any adverse title being set up against the respondent or any
cloud being raised on the title of the respondent, a suit simpliciter
for injunction was maintainable. Reliance in this regard is placed
on the decision of the Hon'ble Supreme Court in the case of
Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by L.Rs. And
Ors., reported in AIR 2008 SC 2033. It is submitted that the
appellant no.1 had admitted, to be an encroacher, although the
case is that of a prescriptive title against the Government. It is
submitted that as against this, the respondent has an entry, which
has been referred to by the Courts below in the Revenue Record
about the suit property, in their favour. It is, therefore, submitted
that the concurrent finding recorded by the Courts below, does
not require any interference.
16. The Hon'ble Apex Court in the case of Anathula
Sudhakar (supra), had considered the scope of the prohibitory
injunction relating to immovable property under Section 38 of the
Specific Relief Act. The Hon'ble Supreme Court has set out 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. It is held
thus in paragraphs (11.1), (11.2) and (11.3), of the judgment :
“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
to the property is in dispute, or under a cloud, or
where the defendant asserts title thereto and there is
also a threat of dispossession from defendant, the
plaintiff will have to sue for declaration of title and
the consequential relief of injunction. Where the title
of plaintiff is under a cloud or in dispute and he is not
in possession or not able to establish possession,
necessarily the plaintiff will have to file a suit for
declaration, possession and injunction.”
17. It has been further held in paragraph 12 as under :
“12. We may however clarify that a prayer for
declaration will be necessary only if the denial of title
by the defendant or challenge to plaintiff's title raises
a cloud on the title of plaintiff to the property. A cloud
is said to raise over a person's title, when some
apparent defect in his title to a property, or when
some prima facie right of a third party over it, is made
out or shown. An action for declaration, is the remedy
to remove the cloud on the title to the property. On
the other hand, where the plaintiff has clear title
supported by documents, if a trespasser without any
claim to title or an interloper without any apparent
title, merely denies the plaintiff's title, it does not
amount to raising a cloud over the title of the plaintiff
and it will not be necessary for the plaintiff to sue for
declaration and a suit for injunction may be sufficient.
Where the plaintiff, believing that defendant is only a
trespasser or a wrongful claimant without title, files a
mere suit for injunction, and in such a suit, the
defendant discloses in his defence the details of the
right or title claimed by him, which raises a serious
dispute or cloud over plaintiff's title, then there is a
need for the plaintiff, to amend the plaint and convert
the suit into one for declaration. Alternatively, he may
withdraw the suit for bare injunction, with permission
of the court to file a comprehensive suit for
declaration and injunction. He may file the suit for
declaration with consequential relief, even after the
suit for injunction is dismissed, where the suit raised
only the issue of possession and not any issue of title.”
18. The legal position has been summarised in paragraph
17 of the judgment as under :
“17. To summarize, the position in regard to suits
for prohibitory injunction relating to immovable
property, is as under :
(a) Where a cloud is raised over plaintiff's title and
he does not have possession, a suit for declaration
and possession, with or without a consequential
injunction, is the remedy. Where the plaintiff's title
is not in dispute or under a cloud, but he is out of
possession, he has to sue for possession with a
consequential injunction. Where there is merely an
interference with plaintiff's lawful possession or
threat of dispossession, it is sufficient to sue for an
injunction simpliciter.
(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; (2005 AIR SCW 3516). Where the averments
regarding title are absent in a plaint and where
there is no issue relating to title, the court will not
investigate or examine or render a finding on a
question of title, in a suit for injunction. Even where
there are necessary pleadings and issue, if the
matter involves complicated questions of fact and
law relating to title, the court will relegate the
parties to the remedy by way of comprehensive suit
for declaration of title, instead of deciding the issue
in a suit for mere injunction.
(d) Where there are necessary pleadings regarding
title, and appropriate issue relating to title on which
parties lead evidence, if the matter involved is
simple and straight-forward, the court may decide
upon the issue regarding title, even in a suit for
injunction. But such cases, are the exception to the
normal rule that question of title will not be decided
in suits for injunction. But persons having clear title
and possession suing for injunction, should not be
driven to the costlier and more cumbersome remedy
of a suit for declaration, merely because some
meddler vexatiously or wrongfully makes a claim or
tries to encroach upon his property. The court
should use its discretion carefully to identify cases
where it will enquire into title and cases where it
will refer to plaintiff to a more comprehensive
declaratory suit, depending upon the facts of the
case.”
It can, thus, be seen that as far as a suit for injunction
simpliciter, based on possession is concerned, the issue of title
will not be directly and subsequently in issue. In such a case, the
prayer for injunction will have to be decided with reference to the
finding on possession. The Hon'ble Apex Court in the case of
Anathula Sudhakar (supra), has held that in respect of a
property, which is an agricultural land, the possession may be established with reference to actual use and cultivation. Where
the property is vacant site, which is not physically possessed, used
or enjoyed, the principle that possession follows title would apply
and if two persons claim to be in possession of a vacant site, one,
who is able to establish a title thereto, will be considered to be in
possession as against the person, who is not able to establish title.
19. Turning to the present case, insofar as the finding
recorded in Civil Suit No.52/2005 is concerned, this Court, while
allowing withdrawal of the First Appeal No.143/2008, had held
that the findings recorded by the learned District Judge would not
survive. So, these findings cannot come in the way of the
respondent. The respondent has a document which dates back to
the year 1934 (Exhibit 34) having Revenue Entry in Form No.I and
XIV pertaining to Survey No.22/1 (Exhibit P-36) as against the
appellant no.1, who admittedly claims adverse possession against
the Government. Both the Courts have concurrently found that
the respondent was in possession of the suit property. In the fact
and circumstances, it cannot be said that there was any cloud on
the title of the respondent, which was created in the suit,
requiring the respondent to file a suit for declaration of title. It
may be mentioned that the appellants are not claiming any right
as against the respondent much less of adverse possession, which
they are claiming against the Government. So, as between the
appellants and respondent, certainly it is the respondent, who had
a document of Succession, Gift and Relinquishment dated back to
the year 1934 and a revenue entry in its favour and in that view of
the matter, it cannot be said that the suit for want of declaration
could not have been decreed.
20. In the result, the points are answered in the
affirmative. The Second Appeal is, accordingly, dismissed, with no
order as to costs.
C. V. BHADANG, J.
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