JOSE versus JOHNSON on 2 March 2020

1. Leave granted.

2. The appellant herein is before this Court assailing the judgmentdated 14.11.2014 passed by the High Court of Kerala in FAO (RO)No.229/2014. Through the said judgment the High Court allowed theappeal, set aside the judgment dated 31.03.2014 passed by the FirstAppellate Court in AS No.186/2011 and restored the judgment and decreepassed by the Trial Court in O.S. No.288/2009. Since the rank of theparties was described differently in the said proceedings the parties willbe referred in the rank assigned to them in the trial court in the originalsuit for the sake of convenience and clarity. The appellant herein wasthe 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 suitbearing O.S. No.288/2009 in the Court of the Munsiff at Aluva seekingfor judgment and decree of permanent prohibitory injunction in respectof the suit schedule property. The defendant appeared and filed detailedwritten statement disputing the claim of the plaintiff. Based on the rivalpleadings the trial court framed issues, the parties tendered evidenceand the trial court decreed the suit through its judgment dated 26.08.2011.The defendant claiming to be aggrieved by the same preferred an appealunder Section 96 of Civil Procedure Code (‘CPC’ for short) in A.S.No.186/2011. The First Appellate Court on reappreciating the matter,through its judgment dated 31.03.2014 set aside the judgment dated26.08.2011 passed by the trial court in O.S. No.288/2009 and remandedthe suit to the trial court for fresh disposal in terms of the directionsissued. Since it was a remand in terms of order 41 Rule 23A CPC, theplaintiff preferred an appeal to the High Court in FAO (RO) No.229/

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A2014 as contemplated under Order 43 Rule 1(W) of CPC. The HighCourt through its judgment dated 14.11.2014 has allowed the appeal andrestored 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 ofBthe property bearing Resurvey No.371/5 (old Survey No.517/7, 517/1 inBlock 28 measuring 15 ‘Are’ in Vadakkumbhagom, Aluva Taluk,Sreemoolanagaram Sub District, Ernakulam under a Partition DeedNo.2617 of 2007 being a cousin of the defendant No.1, the fathers ofthe plaintiff and defendant No.1 being brothers. The cause for the suitwas stated to be the obstruction caused by the defendants when theCplaintiff on 19.06.2009 was in the process of constructing a wall on theeastern side. The nature of the incident is referred and, in thatbackground, prayed for permanent prohibitory injunction. The plaintiffexamined himself and relied upon the documents at Exhibits A1 to A6.The Report of the Court Commissioner and the sketch were marked asDExhibits C1 and C1(a). The defendant did not tender any evidence orproduce documents.

5. The trial court while answering the issues has held that theproperty is identifiable and the plaintiff is the owner in possession of thesuit schedule property. In that light on answering the issues in favour ofEthe plaintiff has decreed the suit. In the appeal filed by the defendant thelower appellate court while reappreciating the evidence has taken intoconsideration the contention put forth by the defendant with regard tothe nature of the property and the manner in which the property hadbeen partitioned in the year 1964. The Court had also taken note that insuch circumstance the plaintiff had not made any effort to identify theFproperty nor was the defendant provided sufficient opportunity to provetheir claim. The lower appellate court also took note that an applicationin I.A. No.349/2013 had been filed by the defendant under Order 41Rule 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 withoutGappropriately identifying the property along with its measurement. Inthat circumstance, the lower appellate court on finding that the matterrequires reconsideration had set aside the decree and remanded thematter.

6. In the appeal filed by the plaintiff before the High Court, theHHigh 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 seriousdispute, 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 learnedJudge of the lower appellate court was not justified in arriving at theconclusion that the property is to be measured on the basis of the titledeed. In that view, the High Court has set aside the judgment of thelower appellate court and restored the decree passed by the trial court.

7. Heard Shri P.A. Noor Muhamed, learned advocate for theappellant, Mr. C.N. Sreekumar, learned senior advocate for the respondentand 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 applicationunder Order 41 Rule 27 CPC before the trial court and has permittedthe parties to tender further evidence so as to enable the identification ofthe plaint schedule property with the assistance of the Taluk Surveyorand thereafter arrive at the conclusion. Per contra, the High Court ontaking note that the suit is for bare injunction has found that the exerciseto identify the property with reference to the ownership is not justified.

9. The learned senior advocate for the plaintiff while submitting insupport of the conclusion reached by the High Court would contend thatthe law is well established that in a suit for bare injunction the proof oftitle would not be necessary and the relevant circumstance would onlybe the possession relating to the property. Among others, the learnedsenior advocate has relied on the decision of this Court in the case ofRavinder Kaur Grewal & Ors. vs. Manjit Kaur & Ors. (2019) 8SCC 729 wherein the relevance of possession including the possessionclaimed adverse to the interest of the owner is also considered. In thatlight, it is contended by the learned senior advocate that in suchcircumstance when the possession had been established before the trialcourt, the trial court was justified in granting the decree. The High Court,therefore, has appropriately restored such decree and the same doesnot call for interference in this appeal is his contention.

10. The learned advocate for the defendant would howevercontend that the very nature of the rival contentions put forth in the suitwould indicate that the very claim to the property relating to the portionwherein the wall was being constructed was disputed by the defendantand in that light when appropriate issues were framed by the trial court, AB

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Athe manner in which the wall was being constructed cannot be consideredas 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 rightover the property when his right was under challenge would make thesuit itself not maintainable. It is further contended that the lower appellatecourt in that light had appropriately remanded the matter so that theBappropriate consideration would be made and such judgment ought notto have been interfered by the High Court.

11. In the backdrop of the contentions put forth, though therecould be no cavil to the position relating to the relevance of possessionbeing the prime consideration in a bare suit for injunction as contendedCby the learned senior advocate for the plaintiff, each case will have to beexamined on its own merits keeping in view the nature of the pleadingput forth before the trial court and the understanding of the case withwhich the parties have gone to trial. If this aspect is kept in view thevery nature of the plaint averments would indicate that the parties to theDsuit are related to each other and the property which was being commonlyenjoyed by their predecessors was partitioned under the Deed No.2617/2007. The present dispute had arisen when the plaintiff was seeking toput up a construction of the wall and the defendants had objected to thesame. The prayer in the plaint reads as hereunder:

E“(a) issue a permanent prohibitory injunction restraining thedefendants and their people from trespassing into the plaintschedule property or questioning the right of the plaintifforobstructing the enjoyment of the plaintiff or committing wastetrespassing into the plaint schedule property or destroying thepeaceful life of the plaintiff.”F

(Emphasis supplied)

12. The emphasised portion in the prayer would provide anindication that the defendant had challenged the right of the plaintiff andnot merely interference with the lawful possession as claimed by theGplaintiff and as such the prayer was sought. Further the averments raisedby the defendants in the written statement refers to the manner in whichthe right to the property had flowed ever since the partition through theDeed No.651/1964 and the measurement thereof. The location of theshares enjoyed by the parties is referred and the right as claimed by theplaintiff is disputed. In the background of the contentions raised in theHrival pleadings the trial court had framed the following issues:

“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 non-joinder 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 theidentity of the property as also the ownership and possession thereof.The plaintiff did not object to the said issues nor did the plaintiff file anyapplication under Order 14 Rule 5 CPC seeking amendment or to strikeout the said issues. On the other hand, the evidence was tendered basedon the issues and the Issue Nos.1 and 2 were considered by the trialcourt and was answered in favour of the plaintiff wherein it is held thatthe plaintiff is in ownership and possession of the plaint schedule property.In that background when the defendant had questioned such conclusionreached by the trial court and had put forth the contention and alsosought for an opportunity to produce additional evidence by filing anapplication under Order 41 Rule 27 CPC and in that background whenthe lower appellate court was of the opinion that the said issues needreconsideration in the background of the additional evidence andopportunity being provided to the defendant the appropriate course wasto remand the matter to the trial court and provide opportunity whichwas accordingly done.

14. If the above aspects are kept in view the observations madeby the High Court relating to the consideration required being only ofpossession since the suit was for perpetual injunction is without referenceto the nature of contentions put forth in a suit, the issues that had beenraised for consideration and the conclusion that had been reached by thetrial court as also the lower appellate court in that background. Hence,we are of the opinion that in the facts and circumstance of the presentcase the High Court was not justified, but the conclusion of the lowerappellate court to set aside the judgment and decree of the trial courtand remand the matter for reconsideration by the trial court was theappropriate course.

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982SUPREME COURT REPORTS

[2020] 2 S.C.R.

A15. In that view, the judgement dated 14.11.2014 passed by theHigh Court of Kerala in FAO (RO) No.229/2014 is set aside. Thejudgment dated 31.03.2014 passed by the Additional District Judge, NorthParavur in A.S. No.186/2011 is restored.

16. The appeal is accordingly allowed. In the facts andBcircumstances of the case, the parties to bear their own costs. Pendingapplication, if any, shall stand disposed of.

Ankit Gyan

Appeal allowed.

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