The law is well settled that if the defendants do not dispute
the title of the plaintiffs then the suit should not fail only on
the ground that the matter has been filed only for injunction
simpliciter and no main relief in the form of declaration has been
prayed for. {Para 18}
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.159/2025
(@SPECIAL LEAVE PETITION (CIVIL) No.686/2025
(@Diary No.28071/2024)
KRUSHNA CHANDRA BEHERA & ORS. Vs NARAYAN NAYAK & ORS.
1. Heard the learned counsel appearing for the parties on delay.
2. We are convinced that the sufficient cause assigned for the
delay of 462 days in filing the present appeal.
3. The delay is, accordingly, condoned.
4. Leave granted.
5. This appeal is at the instance of the original plaintiffs
seeking to challenge the judgment and order passed by the High
Court of Orissa at Cuttack dated 23-12-2022 in Regular Second
Appeal No.38/2019, by which the High Court allowed the Second
Appeal filed by the respondents – herein (original defendants) and
thereby dismissed the Suit filed by the plaintiffs seeking
permanent injunction.
6. The plaintiffs instituted a Title Suit No.174/1983 praying for
the following reliefs:-
“a) the defendant be perpetually injuncted not to enter upon
the suit land and not to interfere with the possession of the
plaintiff over the suit land.
b) the defendant be temporarily injuncted not to enter upon
the suit land till the disposal of the suit and not to cut the
present standing paddy crops.
c) Cost of the suit be given to the plaintiff.
d) any other relief to which the plaintiff is entitled to be
given to him.”
7. In the Title Suit, the Trial Court framed the following
issues:-
“I. Is the suit maintainable?
II. Is the deed dated 24.12.58, out and out a sale deed with
condition to repurchase or it was a deed of mortgage with con
ditional sale?
III. Is the deed dated 24.12.58 executed by Uma Bewa invalid
and fraudulent?
IV. Has the plaintiff undisputed title and possession over the
suit land?
V. Whether the plaintiff or the defendant has perfected his
title over the soil land by way of adverse possession?
VI. To what reliefs or relief if any the plaintiff is entitled
to?”
8. The Title Suit ultimately came to be allowed. The Trial Court
passed a decree.
9. The operative part of the order passed by the Trial Court
reads thus:-
“The suit be and the same is decreed on contest against the
defendants, but no order as to the cost.”
10. The defendants being dissatisfied with the judgment and decree
passed by the Trial Court first preferred Regular First Appeal
before the District Judge, Jajpur. The First Appeal came to be
dismissed thereby affirming the judgment and decree passed by the
Trial Court.
11. The defendants thereafter went before the High Court by way of
a Second Appeal under Section 100 of the Civil Procedure Code,
1908.
12. The High Court framed the following substantial questions of
law for its consideration:-
“(i) Whether on the rival case of the parties giving rise
to involvement of complicated question of title as also
competing claim in respect of the suit property covered
under the deed which is being, differently projected by the
parties, the Courts below have erred in law by decreeing
the suit for permanent injunction simpliciter without the
prayer of the declaration of the title and possession?
(ii) Whether the Courts below are right in construing Ext.1
as out and out deed of sale by ignoring the evidence on
record as to the surrounding circumstances and the settled
law in the field for construction of the document when one
side projects it to be out and out sale and other claims it
to be a mortgage by conditional sale?”
13. The High Court answered the first question of law, referred to
above, in favour of the defendants and as against the plaintiffs
and allowed the Second Appeal thereby setting aside the judgment
and decree passed by the Trial Court as well as the judgment and
order passed by the First Appellate Court, referred to above.
14. In such circumstances, referred to above, the appellants
(original plaintiffs) and here before this Court with the present
appeal.
15. We have heard Mr. Karunakar Mahalik, the learned counsel
appearing for the appellants and Mr. Tom Joseph, the learned
counsel appearing for the Respondent Nos.2 to 4 – defendants on
caveat.
16. We take notice of the fact that the only ground that weighed
with the High Court in allowing the Second Appeal and thereby
dismissing the suit of the plaintiffs is that the plaintiffs failed
to pray for any declaration and their suit simpliciter for
injunction according to the High Court could not be said to be
maintainable.
17. In the entire impugned judgment of the High Court, we do not
find any discussion as regard the dispute relating to the title of
the property.
18. The law is well settled that if the defendants do not dispute
the title of the plaintiffs then the suit should not fail only on
the ground that the matter has been filed only for injunction
simpliciter and no main relief in the form of declaration has been
prayed for.
19. When the learned counsel appearing for the respondents
(original defendants) was confronted with this, he submitted that
since the defendants are in possession, it was obligatory on the
part of the appellants – herein as plaintiffs to pray for main
relief seeking possession of the suit property.
20. It appears that an absolutely new case is sought to be made
out so far as the aspect of possession is concerned.
21. The High Court has not said a word about who is in possession
of the suit property.
22. We are of the view that the High Court has not dealt the
Second Appeal in accordance with law and has failed to consider
relevant vital issues affecting the rights of the parties to the
litigation.
23. In such circumstances, we set aside the judgment and order
passed by the High Court and remit the matter back to the High
Court for fresh consideration of the Second Appeal in accordance
with law.
24. The Second Appeal is ordered to be restored to the original
file of the High Court of Orissa at Cuttack.
25. Let the Second Appeal now be decided by the High Court afresh
in accordance with law within a period of three months from today.
26. The appeal is disposed of in the above-terms.
27. Pending applications, if any, also stand disposed of.
…………………………………………J
(J.B. PARDIWALA)
…………………………………………J
(R. MAHADEVAN)
NEW DELHI
6TH JANUARY, 2025.
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