REPORTABLE

  IN THE SUPREME COURT OF INDIA

  CIVIL APPELLATE JURISDICTION

  CIVIL APPEAL NO.  1892     OF 2020    (Arising out of SLP (Civil) No.21328 of 2015)

Jose                                .…Appellant(s)

Versus

Johnson             ….  Respondent(s)

J U D G M E N T

A.S. Bopanna,J.          

      Leave granted.      

2.   The appellant herein is before this Court assailing

the judgment dated 14.11.2014 passed by the High Court

of Kerala in FAO (RO) No.229/2014.   Through the said

judgment the High Court allowed the appeal,  set aside

the judgment dated 31.03.2014 passed by the First

Appellate Court in AS No.186/2011 and restored the

judgment and decree passed by the Trial Court in O.S.

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No.288/2009.   Since the rank of the parties was

described differently in the said proceedings the parties

will be referred in the rank assigned to them in the trial

court in the original suit for the sake of convenience and

clarity.  The appellant herein was the defendant,  while

the respondent herein was the plaintiff in the suit.  They

will be referred accordingly.

3. The chronology of  the events  is  that the plaintiff

filed the suit bearing O.S. No.288/2009 in the Court of

the Munsiff at Aluva seeking for judgment and decree of

permanent prohibitory  injunction  in respect of  the suit

schedule property.   The defendant appeared and filed

detailed written statement disputing the claim of the

plaintiff.  Based  on the rival pleadings the trial court

framed issues, the parties tendered evidence and the trial

court decreed the suit through its judgment dated

26.08.2011.   The defendant claiming to be aggrieved by

the same preferred an appeal under Section 96 of Civil

Procedure  Code (‘CPC’ for short) in  A.S.  No.186/2011.

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The First Appellate Court on reappreciating the matter,

through its judgment dated 31.03.2014 set aside the

judgment dated 26.08.2011 passed by the trial court in

O.S.  No.288/2009  and remanded the suit to the trial

court for fresh disposal in terms of the directions issued.

Since  it  was a remand  in  terms of  order 41 Rule 23A

CPC, the plaintiff preferred an appeal to the High Court

in FAO (RO) No.229/2014 as contemplated under Order

43 Rule 1(W) of CPC.   The High Court through its

judgment dated 14.11.2014 has allowed the appeal and

restored the judgment and  decree passed  by the trial

court.  The defendant, therefore, claiming to be aggrieved

is before this Court in this appeal.

4. The brief facts are that the plaintiff claimed right in

respect of the property bearing Resurvey No.371/5 (old

Survey No.517/7, 517/1 in Block 28 measuring 15 ‘Are’

in Vadakkumbhagom,  Aluva  Taluk, Sreemoolanagaram

Sub District, Ernakulam under a Partition Deed No.2617

of 2007 being a cousin of the defendant No.1, the fathers

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of the plaintiff and defendant No.1 being brothers.   The

cause for the suit was stated to be the obstruction

caused by the defendants when the plaintiff on

19.06.2009 was in the process of constructing a wall on

the eastern side.   The nature of the incident is referred

and, in that background, prayed for permanent

prohibitory injunction.   The plaintiff examined  himself

and relied upon the documents at Exhibits A1 to A6.  The

Report of the Court Commissioner and the sketch were

marked as Exhibits C1 and C1(a).  The defendant did not

tender any evidence or produce documents.   

5. The trial court while answering the issues has held

that the property  is  identifiable and the plaintiff is  the

owner  in possession of the suit  schedule  property.   In

that light on answering the issues in favour of the

plaintiff has decreed the suit.   In the appeal filed by the

defendant the lower appellate court while reappreciating

the evidence has taken into consideration the contention

put forth by the defendant with regard to the nature of

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the property and the manner in which the property had

been partitioned in the year 1964.   The Court had also

taken note that  in such circumstance the plaintiff  had

not made any effort to identify the property nor was the

defendant provided sufficient opportunity to prove their

claim.   The lower appellate court also took note that an

application in I.A.  No.349/2013 had been filed  by the

defendant under Order 41 Rule 27 for producing the

certified copy of the Partition Deed No.651/1964.

Further it  was  concluded  that the  suit  was tried in  a

hurry without appropriately identifying the property

along with its measurement.   In that circumstance, the

lower appellate court on finding that the matter requires

reconsideration had set aside the decree and remanded

the matter.

6. In the appeal filed by the plaintiff before the High

Court, the High Court on taking note that the suit was

for perpetual injunction only and in that light since the

possession of the plaintiff  not being in serious dispute,

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was of the opinion that the title to the property was not

relevant.  In that circumstance, the High Court was of the

opinion that the learned Judge of the lower appellate

court was not justified in arriving at the conclusion that

the property is to be measured on the basis of the title

deed.   In that  view, the  High Court  has  set  aside the

judgment of the  lower appellate court and restored the

decree passed by the trial court.   

7.  Heard Shri P.A. Noor Muhamed, learned advocate

for the appellant,  Mr.  C.N. Sreekumar, learned senior

advocate for the respondent and perused the appeal

papers.

8. As noted the  lower appellate  court  has set aside

the judgement, remanded the matter and permitted the

defendant to file the application under Order 41 Rule 27

CPC before the trial court and has permitted the parties

to tender further evidence so as to enable the

identification of the plaint schedule property with the

assistance of the Taluk Surveyor and thereafter arrive at

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the  conclusion.  Per  contra, the  High Court  on  taking

note that the suit is for bare injunction has found that

the exercise to identify the property with reference to the

ownership is not justified.   

9. The learned senior advocate for the plaintiff while

submitting in support of the conclusion reached by the

High Court would contend that the law is well established

that in a suit for bare injunction the proof of title would

not be necessary and the relevant circumstance would

only be the possession relating to the property.   Among

others, the learned senior advocate has relied on the

decision of this Court in the case of  Ravinder  Kaur

Grewal & Ors. vs. Manjit Kaur & Ors.  (2019) 8 SCC

729 wherein the  relevance  of  possession including the

possession claimed adverse to the interest of the owner is

also  considered.   In that light, it is contended by the

learned senior advocate that in such circumstance when

the possession had been established before the trial

court, the trial court was justified in granting the decree.

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The High Court, therefore, has appropriately restored

such decree and the same does not call for interference in

this appeal is his contention.   

10. The learned advocate for the defendant would

however contend that the very nature of the rival

contentions put forth in the suit would indicate that the

very claim to the property relating to the portion wherein

the wall was being constructed was disputed by the

defendant and in that light when appropriate issues were

framed by the trial court, the manner in which the wall

was being constructed cannot be considered as being on

a property where the plaintiff was in lawful settled

possession.   The very fact that the plaintiff had not

sought for declaration of his right over the property when

his right was under challenge would make the suit itself

not maintainable.  It is further contended that the lower

appellate court in that light had appropriately remanded

the matter so that the appropriate consideration would

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be  made and such judgment ought  not to  have been

interfered by the High Court.  

11. In the backdrop of the contentions put forth,

though there could be no cavil to the position relating to

the relevance of possession being the prime consideration

in a bare suit for injunction as contended by the learned

senior advocate for the plaintiff, each case will have to be

examined on its own merits keeping in view the nature of

the pleading put forth before the trial court and the

understanding of  the case with which the parties have

gone to trial.  If this aspect is kept in view the very nature

of the plaint averments would indicate that the parties to

the suit are related to each other and the property which

was being commonly enjoyed by their predecessors was

partitioned under the Deed No.2617/2007.   The present

dispute had arisen when the plaintiff was seeking to put

up a construction of the  wall  and the  defendants  had

objected to the same.   The prayer in the plaint reads as

hereunder:

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“(a) issue a permanent prohibitory injunction restraining the defendants and their people from trespassing into the plaint schedule property  or questioning the right of the plaintiff  or obstructing the enjoyment of the plaintiff or committing waste trespassing into the plaint schedule property or destroying the peaceful life of the plaintiff.”

(Emphasis supplied)

12.  The emphasised portion in the prayer would provide

an indication that the defendant had challenged the right

of the plaintiff and not merely interference with the lawful

possession as claimed by the plaintiff  and as such the

prayer was sought.  Further the averments raised by the

defendants in the written statement refers to the manner

in which the right to the property had flowed ever since

the partition through the Deed No.651/1964 and the

measurement thereof.  The location of the shares enjoyed

by the parties is referred and the right as claimed by the

plaintiff is disputed.   In the background of the

contentions raised in the rival pleadings the trial  court

had framed the following issues:  

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“Basing on the above contentions the following issues are raised:

1. whether plaint schedule property is identifiable?

2. whether plaintiff is in ownership and possession of property?

3. whether suit is bad for non­joinder of necessary parties?

4. whether cause of action alleged is true and correct?

5. whether plaintiff is entitled for injunction as prayed for?

6. Reliefs and costs.”

13. The Issues No.1 and 2  framed by the trial  court

refers to the identity of the property as also the

ownership and possession thereof.   The plaintiff did not

object to the said issues  nor  did the  plaintiff file any

application under Order 14 Rule 5 CPC seeking

amendment or to strike out the said issues.  On the other

hand, the evidence was tendered based on the issues and

the Issue Nos.1 and 2 were considered by the trial court

and was answered in favour of the plaintiff wherein it is

held that the plaintiff is in ownership and possession of

the plaint schedule property.   In that background when

the defendant had questioned such conclusion reached

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by the trial court and had put forth the contention and

also sought for an opportunity to produce additional

evidence by filing an application under Order 41 Rule 27

CPC and  in that background when the  lower appellate

court was of the opinion that the said issues need

reconsideration in the background of the additional

evidence and opportunity being provided to the defendant

the appropriate course was to remand the matter to the

trial court and provide opportunity which was

accordingly done.

14. If the above aspects are kept in view the

observations made by the High Court relating to the

consideration required being only of possession since the

suit was for perpetual injunction is without reference to

the nature of contentions put forth in a suit, the issues

that had been raised for consideration and the

conclusion that had been reached by the trial court as

also the lower appellate court in that background.

Hence, we are of the opinion that in the facts and

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circumstance of the present case the High Court was not

justified, but the conclusion of the lower appellate court

to set aside the judgment and decree of the trial court

and remand the matter  for reconsideration by the trial

court was the appropriate course.

15.   In that view, the judgement dated 14.11.2014

passed by the High Court of Kerala in FAO (RO)

No.229/2014 is set aside.   The judgment dated

31.03.2014 passed by the Additional District Judge,

North Paravur in A.S. No.186/2011 is restored.

16. The appeal is accordingly allowed.  In the facts and

circumstances of the case, the parties to bear their own  

costs.   Pending application, if any, shall stand disposed

of.

………….…………….J. (INDIRA BANERJEE)

         .……………………….J.                                             (A.S. BOPANNA)

New Delhi, March 02, 2020

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