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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.5459 OF 2007

Velayudhan & Ors.             ….Appellant(s)

VERSUS

Mohammedkutty & Ors.      …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) This appeal is filed by the defendants against

the  final  judgment  and  order  dated  08.03.2006

passed by the High Court of Kerala in S.A. No.180 &

475/1992  whereby  the  High  Court  allowed  the

second  appeals  filed  by  the  plaintiffs-respondents

herein and set aside the judgment and decree dated

26.07.1991 of the Subordinate Judge, Tirur in A.S.

Nos. 83 & 84 of  1988 and restored the judgment

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dated 30.09.1988 of the Munsif of Parappanangadi

in O.S. No. 177 of 1983.  

2) We  need  not  burden  our  judgment  by

mentioning the facts in detail except to the extent

necessary  to  appreciate  the  issue  involved  in  the

appeal.  

3) The  appellants  herein  are  the  defendants

whereas the respondents are the plaintiffs in a suit

out of which this appeal arises.

4) The respondents filed a civil suit in relation to

the suit land as described in detail in schedule to

the plaint against the appellants before the Munsif

of  Parappanangadi.  The Munsif  Court decreed the

respondents’ suit against the appellants and passed

the decree as prayed by the plaintiffs.  

5) The  defendants,  felt  aggrieved,  filed  the  first

appeals  before  the  Subordinate  Judge  Tirur.  The

first  appellate  Court  allowed  the  appeals  and

dismissed the suit. The respondents, felt aggrieved,

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filed Second Appeals under Section 100 of Code of

Civil Procedure, 1908 (hereinafter referred to as “the

Code”). The High Court admitted the appeals on the

following two substantial questions of law:

“1.   The  suit  being  one  for  perpetual injunction,  whether  investigation  into  the question of title was necessary or called for?

2.   Whether,  in  view  of  the  evidence, including  the  Commissioner’s  report,  the Appellate  Court  was  justified  in  coming  to the  conclusion  that  the  appellants  had  no possession?”

6) By  impugned  order,  the  High  Court  allowed

the appeals and while reversing the judgment and

decree of the first appellate Court restored that of

the Trial Court, which had decreed the respondents’

suit. It is against this order of the High Court, the

defendants  felt  aggrieved and filed  this  appeal  by

way of special leave before this Court.  

7) Heard Mr. M.K.S. Menon, learned counsel for

the appellants and Mr. K. Rajeev, learned counsel

for the respondents.

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8) Having heard learned counsel  for  the parties

and on perusal  of  the  record of  the  case,  we are

inclined to allow the appeal in part and while setting

aside  of  the  impugned order  consider  it  just  and

proper and in the interest of all parties concerned to

remand the case to the High Court for deciding the

plaintiffs’  Second  Appeals  afresh  on  merits  by

reframing the fresh substantial questions of law.

9) In our considered opinion, the need to remand

the case to the High Court for deciding the Second

Appeals afresh has arisen because we find that the

High Court proceeded on the assumption that the

Civil Suit filed by the respondents out of which this

appeal arises is essentially for grant of permanent

injunction  simpliciter.  It  would  be  clear  from the

first substantial question of law framed by the High

Court quoted supra.

10) One  of  the  questions,  which  fell  for

consideration before the first and second appellate

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Court was regarding the nature of the Suit filed by

the respondents and the reliefs claimed therein.  

11) Was it a suit for grant of permanent injunction

simpliciter  or  a  suit  to  seek a  declaration of  title

with  consequential  relief  of  grant  of  permanent

injunction in relation to the suit land?

12) On  perusal  of  the  plaint,  we  find  that  the

plaintiffs asked for the following reliefs:

“A. Issue an order of injunction preventing defendants or their  men from entering into or  taking  any  usufructs  from  the  plaint schedule  property  or  from  doing  anything detrimental to the title and possession of the plaintiffs.

B. Direct the defendants to pay all costs in the suit.

C. Such other or further orders be passed in the suit.”  

13) Reading the expression "or from doing anything

detrimental  to  the  title  and  possession  of  the

plaintiffs"  in  prayer  clause  A  quoted  above  would

show  that  the  plaintiffs  have  also  expressed

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apprehension in relation to their title over the suit

properties.  

14) Keeping in view the averments made in Para 1

of the plaint read with aforementioned words of the

prayer clause, we are of the view that it cannot be

said  that  the  Suit  is  only  for  grant  of  permanent

injunction simpliciter. In other words, the issue of

title having surfaced in the relief clause, the same is

of  some significance over the rights of  the parties

while considering the grant of the reliefs.  

15) In our considered opinion, the reading of the

plaint  as  a  whole  in  the  context  of  the  reliefs

claimed therein would go to show that the issue of

title is not wholly foreign to the controversy and is

relevant while considering the grant of  permanent

injunction.

16) It is true that the relief clause in the plaint is

not happily worded but, as observed supra, reading

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the plaint as a whole along with relief clause does

support our observations.  

17) Since the High Court proceeded to decide the

appeals in the light of first substantial question of

law and hence it committed an error. The first error

was in framing the wrong question and the second

was in proceeding to examine the said question.  

18) The  issue,  in  our  view,  was  required  to  be

examined by the High Court keeping in view the law

laid  down by  this  Court  in  the  case  of  Anathula

Sudhakar  vs.  P.  Buchi  Reddy(Dead)  by L.Rs.  &

Ors., 2008(4) SCC 594.  It was, however, not done.

19) It is due to the aforesaid reasons, we are of the

view that  matter  needs  a  fresh  look  by  the  High

Court on the questions which arise in the case.

20) In the light of  foregoing discussion,  we allow

the appeal in part, set aside the impugned judgment

and remand the case to the High Court to decide the

appeal afresh after reframing the proper substantial

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questions of law keeping in view the pleadings and

the  findings  of  the  two  Courts  below as  required

under Section 100 of the Code.

21) Since the appeal is quite old, we request the

High Court to decide the appeal expeditiously.

               ………...................................J.

[R.K. AGRAWAL]             

                                                   …...……..................................J.

        [ABHAY MANOHAR SAPRE] New Delhi; April 18, 2017  

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