Andhra HC (Pre-Telangana)
Vegendla Vijayalakshmi And Two Others vs Gaddipati Naga Himabindu And Seven ... on 5 June, 2013
Equivalent citations: AIR 2014 (NOC) 150 (A.P.)
Author: Samudrala Govindarajulu
Bench: Samudrala Govindarajulu
HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU
Second appeal No.1212 of 1999
05-06-2013
Vegendla Vijayalakshmi and two others......Appellants
Gaddipati Naga Himabindu and seven others.... Respondents
Counsel for the Appellants:Sri N.SreeRamaMurthy
Counsel for Respondents: Smt.K.Lalitha
<Gist :
>Head Note:
?Cases referred:
1. 2004(2) ALD 786
2. AIR 1972 SC 2299
3. 2004(2) ALD 31 (SC)
4. (2008) 4 SUPREME COURT CASES 594
JUDGMENT:
Three of the legal representatives of the deceased plaintiff are the appellants herein. Subject matter of the suit is an extent of Ac.2.42 cents of dry land in Nidubrolu village of Guntur District. Originally the suit land belonged to one Pamulapati Sundaramma, who died on 22.02.1991. The first defendant is daughter of the defendants 2 and 3. The third defendant is daughter of the 4th defendant. Late Sundaramma is wife of brother of the plaintiff and the 4th defendant. Sundaramma died possessed of the suit property. The plaintiff contends that Sundaramma bequeathed the suit property to the plaintiff under Ex.A1 unregistered will dated 20.02.1991. The defendants contend that Sundaramma executed Ex.X-11 will dated 27.07.1987 bequeathing the suit property in favour of the first defendant and deposited the said will in sealed cover with the registration authorities to be opened after her death. It is the plaintiff's contention that she took possession of the suit property after the death of Sundaramma. The defendants also contend that they have been in possession of the suit property after the death of Sundaramma. With that background and with those allegations, the plaintiff has chosen to file the suit for permanent injunction restraining the defendants from interfering with her peaceful possession and enjoyment of the suit land; and it was resisted by the defendants disputing the plaintiff's allegations. After trial, the trial Court decreed the suit granting permanent injunction in favour of the plaintiff. On appeal by the defendants, the lower appellate Court came to the conclusion that the plaintiff should have filed a suit for declaration of title; and disposed of the appeal by giving three months time to the plaintiff to file a comprehensive suit for declaration of title and permanent injunction. While disposing of the appeal, the lower appellate Court limited injunction in favour of the plaintiff for the said period of three months. Questioning the same, some of the legal representatives of the deceased plaintiff filed this second appeal.
While admitting this appeal, the then learned Judge of this Court did not frame any substantial questions of law. On perusal of record and memorandum of the second appeal and hearing arguments of the appellants' counsel, I find that the following substantial question of law arises for determination in this second appeal:
"Whether the lower appellate Court was legally justified in driving the plaintiff to file a suit for declaration of title within three months and limiting the permanent injunction granted by the trial Court for the said three months, after having found that the plaintiff was in possession of the suit land?
It is contended by the appellants' counsel that the trial Court found that Ex.A-1 is a true will executed by Sundaramma and Ex.X-11 is not a genuine will and that the said finding of the trial Court was not disturbed by the lower appellate Court. The contention that finding as to genuineness of the wills is not disturbed by the lower appellate Court is not correct, because the lower appellate Court did not consider the evidence relating to genuineness of the respective wills and as to title to the suit property and the lower appellate Court left that question to be open for being determined in a comprehensive suit to be filed by the plaintiff for declaration of his title for the suit property and for consequential permanent injunction in his favour. No doubt, both the courts below after considering oral and documentary evidence on record, came to the conclusion that the plaintiff took possession of the suit land subsequent to death of late Sundaramma and has been cultivating the same. On the basis of the said finding as to possession, the appellants' counsel contended that when the plaintiff has got settled possession of the suit land, the lower appellate Court should have granted permanent injunction in favour of the plaintiff. It is further contended by the appellants' counsel that limiting granting of permanent injunction for a period of three months only is not provided by law and it is contrary to decision of this Court in DAKKILI SIVA NARAPA REDDY v. GADDAM PENCHALA REDDY1. The lower appellate Court came to the conclusion that in his opinion, in whom the title for the suit property vests in between the parties has to be determined in appropriate proceedings and till then neither the defendant can be held to be the true owner nor the plaintiff can be treated as a trespasser. Therefore, even without determining as to who out of the two parties is the true owner of the suit land, the appeal was disposed of by the lower appellate Court. It is only to preserve status quo of possession of the plaintiff of the suit land, which possession is to be determined as lawful or unlawful, the lower appellate Court protected possession of the plaintiff for three months during which time the plaintiff was directed to file a comprehensive suit for title and permanent injunction. Therefore, this is not a decree by the lower appellate Court of granting permanent injunction only for a limited period. Even protection of possession of the plaintiff of the suit land for a period of three months by the lower appellate Court is by way of grace and not as a matter of right of the plaintiff. It will not clothe the plaintiff with a right to continue to have permanent injunction in her favour for ever, without determination of respective titles of both the parties for the suit land.
It is contended by the appellants' counsel that when the plaintiff is found to be in possession of the suit land by the date of filing of the suit in the trial Court, the plaintiff is entitled for permanent injunction in her favour and that it is for the defendants to approach proper Court seeking possession thereof by filing appropriate suit for declaration of title and possession. But, the legal position set out by the Supreme Court is otherwise. In M.KALLAPPA SETTY v. M.V.LAKSHMINARAYANA RAO2, the Supreme Court in categorical terms held as follows:
"The plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property. Once it is accepted, as the trial court and the first appellate court have done, that the plaintiff was in possession of the property ever since 1947 then his possession has to be protected as against interference by someone who is not proved to have a better title than himself to the suit property."
The question of the plaintiff who is in possession of the suit property being entitled for permanent injunction against the defendant arises only in case it is found that the plaintiff has got better title than that of the defendant. In the case on hand, the lower appellate Court declined to consider the question of title and as to who out of the two parties has got better title and directed the plaintiff to file a comprehensive suit for declaration of title and for permanent injunction. In the absence of a finding as to the plaintiff having better title to the suit property than that of the defendants, the question of the plaintiff being entitled for permanent injunction against the defendants will not arise at all.
The appellants' counsel placed reliance on RAME GOWDA v. M.VARADAPPA NAIDU3 of the Supreme Court and contended that when the plaintiff is found to be in settled possession of the suit land, then the plaintiff is entitled for permanent injunction against the defendants. The Supreme Court ultimately held as follows:
"In the present case the Court has found the plaintiff as having failed in proving his title. Nevertheless, he has been found to be in settled possession of the property. Even the defendant failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff. The trial Court therefore left the question of title open and proceeded to determine the suit on the basis of possession, protecting the established possession and restraining the attempted interference therewith. The Trial Court and the High Court have rightly decided the suit. It is still open to the defendant- appellant to file a suit based on his title against the plaintiff-respondent and evict the latter on the former establishing his better right to possess the property."
It is further pointed out by the appellants' counsel that the Supreme Court observed that where in a suit for declaration of title and injunction, title is not clear, the question of title will have to be kept open without denying the plaintiff's claim for injunction in view of the fact that the plaintiff has been in possession and there is nothing to show that the plaintiff has gained possession by any unfair means just prior to filing of the suit.
This is not a case where one of the two parties to the suit have been the original owner and the other party has gained possession of the suit land by unfair means just prior to filing of the suit in the trial Court. In this case, the suit land belonged to one late Sundaramma who died on 22.02.1991 possessed of the suit property. Ex.A-1 unregistered will in favour of the plaintiff is two days prior to her death. Ex.X-11 deposited will in favour of the first defendant is of the year 1987. It is only after the death of Sundaramma in the year 1991, the plaintiff came to be in possession of the suit land. Since then there is scramble for possession as well as scramble for title of the suit land. It is contended by the respondents' counsel that there cannot be any dispute as to genuineness of Ex.X-11 in favour of the first defendant, since it was a will deposited by the deceased herself with the registering authorities during her lifetime and since the said will Ex.X-11 was referred to in Ex.A-1 unregistered will being relied upon by the plaintiff. Truth and genuineness of Ex.A-1 and Ex.X-11 are matters to be comprehensively decided by an appropriate Court in an appropriate suit to be filed by the plaintiff for declaration of his title and for consequential permanent injunction. When there is no definite finding as to title on the basis of respective wills relied upon by both the parties, it cannot be said that the plaintiff is entitled for permanent injunction against the defendants.
It is contended by the appellants' counsel that the lower appellate Court having found the plaintiff in possession of the suit property should have granted permanent injunction in her favour and should have directed the defendants to file a suit for declaration of title and for possession instead of directing the plaintiff to file a suit for declaration of title. The respondents' counsel placing reliance on ANATHULA SUDHAKAR v. P.BUCHI REDDY4 of the Supreme Court contended that when there is dispute of title of the plaintiff, the plaintiff in all fairness should have filed the suit for declaration of title together with the relief of permanent injunction. It is pointed out by the respondents' counsel that even prior to filing of the suit in the trial Court, each of the parties filed their respective caveats in the trial Court asserting their respective titles and in those circumstances, it is more incumbent on the plaintiff to file a comprehensive suit for declaration of title and for permanent injunction. When there is dispute as to title for the suit property which dispute is antecedent to filing of the suit in the trial Court, it is incumbent for a plaintiff to seek declaration of his or her title before claiming relief of permanent injunction. The Supreme Court in ANATHULA SUDHAKAR (4 supra) analyzed several situations of this nature and held as follows:
"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, are well settled. We may refer to them briefly.
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 simplicitor 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.
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 simplicitor, without claiming the relief of possession.
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 the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the 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.
We may, however, clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to the plaintiff's title raises a cloud on the title of the 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 the 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 raise a serious dispute or cloud over the 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."
In the light of the above pronouncement of the Supreme Court and in the light of facts of this case which cast cloud on the plaintiff's title to the suit property, it is all the more necessary for the plaintiff to have filed the suit for declaration of title. Apart from casting of cloud on the plaintiff's title, in this case, there are respective claims for title for the suit property by both the parties resulting in scramble for title as well as possession of the suit land. In those circumstances, the lower appellate Court is justified in law in directing the plaintiff to file a suit for declaration of title before claiming the relief of permanent injunction, inspite of the plaintiff being in possession of the suit property by the date of filing of the suit in the trial Court. The substantial question of law is answered accordingly.
In the result, the second appeal is dismissed with costs.
________________________________ SAMUDRALA GOVINDARAJULU, J.
05th June 2013