Full Judgment Text
NON-REPORTABLE
2026 INSC 61
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6075 OF 2016
SANJAY PALIWAL AND ANOTHER ...APPELLANT(S)
VERSUS
BHARAT HEAVY ELECTRICALS LTD.
THROUGH ITS EXECUTIVE DIRECTOR …RESPONDENT(S)
J U D G M E N T
ARAVIND KUMAR, J.
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1. The Appellants before this Court are the unsuccessful Plaintiffs in a suit for
Mandatory Injunction, and the Respondent is the Defendant in the suit. (The
parties hereinafter are referred to by their respective ranks in the suit). The
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Trial Court decreed the Suit filed by the Plaintiffs and the First Appellate
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Court confirmed the judgement and decree of the Trial Court and dismissed
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the Appeal filed by the Defendant. Aggrieved by the concurrent judgment
and decree of the Trial Court and the First Appellate Court, the Defendant
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.S. No. 27 of 1994. Hereinafter referred to as ‘the Suit’.
O
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COURT OF II ADDITIONAL CHIEF JUDICIAL MAGISTRATE/ADDITIONAL
CIVIL JUDGE, HARIDWAR.
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COURT OF DISTRICT JUDGE, HARIDWAR PRESIDING OFFICER: SHRI V.K.
JAIN.
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Civil Appeal No. 33/2001.
Signature Not Verified
Digitally signed by
SACHIN KUMAR
SRIVASTAVA
Date: 2026.01.15
17:25:52 IST
Reason:
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5 6
filed a Second Appeal before the High Court , which came to be allowed
by judgment and decree dated: 07.08.2012 and dismissed the suit of the
Plaintiffs. Hence the Plaintiffs have filed this Appeal.
BRIEF FACTS:
2. The case of the Plaintiffs is as follows:
2.1. The plaintiffs, partners in Vaishali Builders, had purchased a parcel of
land measuring 15 Biswa, Khewat No. 8/4, Khatauni No. 36, Khasra
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No. 436, situated in Ahmedpur Karachh, Jwalapur, District Haridwar ,
through a registered sale deed dated 06.01.1992 from the previous
owners, Laxminarayan Jha (zamindar/landholder) and Bashir Khan
(cultivating tenant of Shreni-3). After the purchase, the plaintiffs’ firm
name was duly mutated in the revenue records, and they had remained
in ownership and possession of the lands since then.
2.2. The disputed land was depicted as ABCD in the site map attached to
the plaint (which is noted herein below), with specified measurements
i.e. ABCD is 690 “Kari” and length of AC and BD is 26 “Kari”. It was
bounded on the north, south, and west by lands belonging to the
defendant and others, while a pucca road lay on the eastern side.
Plaintiffs claimed access to this road has been essential for the
plaintiffs’ use and enjoyment of their land.
2.3. The dispute arose when the defendant constructed a boundary wall
along the pucca road, specifically between points C and D, which
blocked the plaintiffs’ access. The plaintiff’s had repeatedly requested
the defendant to remove the obstruction, but the defendant refused,
thereby giving rise to the cause of action. According to the plaintiffs,
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Second Appeal No. 32 of 2004.
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High Court of Uttarakhand at Nainital.
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Hereinafter referred to as the Disputed Land.
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the defendant did not have the right to construct such a wall in a manner
that obstructed their approach to the road.
2.4. Consequently, the plaintiffs filed a suit before the competent court at
Haridwar seeking a decree of mandatory injunction directing the
defendant to remove the boundary wall between points C and D, or for
the court to arrange its removal if the defendant failed to comply. The
suit had been valued at Rs. 500/- as per the estimated cost of removal,
and the requisite court fees was paid thereon. The plaintiffs also sought
costs of the suit and any other relief the court deemed appropriate.
3. On notice, the Defendant appeared in the matter contested the case,
contending as follows:
3.1. The defendant admitted only that its boundary wall had existed for
about thirty years and meets the road on the west. It was asserted that
the plaintiffs have no cause of action, and that the plaintiffs have neither
possession nor any right over the disputed land, which has allegedly
been within the defendant company’s territory for decades. The
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defendant contended that the wall complained of has existed for around
thirty years and that the plaintiffs’ suit for injunction is not
maintainable. It was further argued that the plaintiffs’ partnership firm
is unregistered, attracting the bar of Section 69 of the Partnership Act.
3.2. The defendant also disputed the plaintiffs’ title, contending that
Laxminarayan Jha and Bashir Khan were neither owners nor cultivators
of the land marked ABCD, and the alleged sale deed dated 06.01.1992
is false. According to the defendant, the disputed land was acquired by
the State Government for its establishment and possession was
officially handed over to the company, therefore, neither the plaintiffs
nor their alleged predecessors ever had ownership or possession over
the same. The defendant alleged the map filed with the plaint is
incorrect, contending that Khasra No. 436 is much larger than claimed,
and argued that an injunction suit is barred under Section 41(h) of the
Specific Relief Act because an alternative remedy of seeking
possession is available.
4. The trial court after framing issues and evaluating the evidence tendered by
both the parties, vide Judgment and Decree dated: 22.03.2001, decreed the
suit filed by the Plaintiffs for the following reasons:
4.1. Primarily on the finding that plaintiffs had successfully established
their title and possession over the disputed land forming part of Khasra
No. 436, Khewat No. 8/4. The plaintiffs proved their ownership
through a registered sale deed dated 06.01.1992 and it was supported
by revenue records, including Khatauni and Khasra entries. The oral
testimony of PW-1, coupled with documentary evidence, revealed that
possession was delivered at the time of sale and continued thereafter.
Crucially, the reports of the Revenue Inspector, Amin, and Local
Commissioner consistently identified the disputed portion (marked in
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light red) as belonging to the plaintiffs, thereby corroborating their case
and negating the defendant’s plea of exclusive possession.
4.2. Secondly, the Court rejected the defendant’s claim that disputed land
had been acquired by the State and was in the possession of the
defendant company. The defendant’s own witness made admissions
that portions of Khasra No. 436 were not in the possession of the
defendant and that adjoining lands such as Khasra Nos. 433 and 435
were distinct. These admissions, read with the Amin’s affirmed report
and revenue records, clearly established that plaintiffs’ land was not
part of the road or acquired area. The Court therefore held that plaintiffs
were owners in possession and the defendant had unlawfully raised a
boundary wall on the eastern side, obstructing the plaintiffs’ access to
the road.
4.3. Thirdly, the objection regarding maintainability of suit raised under
Section 69 of the Partnership Act was repelled. Although the firm
Vaishali Builders was admittedly unregistered, the Court held that suit
was not based on enforcement of a contractual right but was a common
law action seeking protection of property rights by way of mandatory
injunction. Relying on settled legal principles, the Court concluded that
suit filed by partners of an unregistered firm was maintainable.
Consequently, the statutory bar under Section 69 was held inapplicable,
and the issue was decided in favour of the plaintiffs.
4.4. Finally, on the issues relating to relief of mandatory injunction and bar
under Sections 38 and 41 of the Specific Relief Act, the trial court
found that plaintiffs’ right to access to public road was essential for the
enjoyment and utility of their property. Evidence revealed that earlier
there existed only a wire fencing, leaving a passage, which was later
replaced by a wall that completely blocked access. Such obstruction
amounted to a continuing wrongful act, justifying the grant of a
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mandatory injunction. Since denial of relief would render the plaintiffs’
land virtually unusable, the Court held it is just and equitable to direct
removal of the wall.
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5.
The Defendant Company filed an appeal before the First Appellate Court,
challenging the judgment and decree of the Trial Court which came to be
dismissed vide judgment and order dated: 30.01.2004 and confirmed the
judgment and decree of the Trial Court.
6. Aggrieved by the Judgment and decree of the Trial Court and the First
Appellate Court, the Defendant filed a Second Appeal before the High
Court. The High Court after framing substantial question of law, has passed
the impugned order by setting aside the judgment and decree of both the
courts below and dismissing the suit filed by the Plaintiffs on the grounds:
6.1. A decisive legal correction has to be made with regard to the
maintainability of a suit for bare mandatory injunction. It held that
construction of a wall on disputed land amounts to trespass and
dispossession, for which the efficacious remedy is a suit for possession.
Since the plaintiffs sought only removal of the wall without claiming
possession, the suit was held barred under Section 41(h) of the Specific
Relief Act, 1963. It was further held that both the Trial Court and the
First Appellate Court committed a legal error in granting injunction
when the proper remedy was for ejectment or seeking possession, and
answered the substantial question of law in favour of the defendant.
6.2. Secondly, the High Court supplied additional reasoning on the nature
of title flowing from the sale deed, clarifying that a Maurusee Kashtkar
(Class VIII hereditary tenant) has no transferable ownership rights.
Although the sale deed was executed jointly by Bashir Khan (tenant)
and Laxminarayan (one of the recorded co-owners), the Court made it
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Civil Appeal No. 33/2001.
6
clear that ownership could pass only to the extent of the co-owner’s
share, and not that of the tenant. This clarification substantially diluted
the conclusiveness of the plaintiffs’ title, which had been assumed by
the courts below without examining the limits of transferability under
the revenue law.
6.3. Thirdly, the High Court found fatal factual defects in the proof of
location of the disputed wall or identity of said wall. It held that
mandatory injunction could not be granted unless it was conclusively
shown that wall stood on the exact portion of land purchased by the
plaintiffs. The Court noted that the Amin’s report relied upon by the
courts below was not proved; the plaint map did not disclose the length
or width of the wall, and the report dated 28.09.1992 referred to Khasra
No. 438 instead of 436, rendering it unreliable. In the absence of precise
measurements and identification, the decree for demolition was held to
be legally unsustainable.
6.4. Finally, while affirming that the suit was not barred under Section 69
of the Partnership Act, the High Court held that this finding alone could
not save the decree. On cumulative consideration of (i) the bar under
Section 41(h) of the Specific Relief Act, (ii) lack of proof of wall
location or its identity and, (iii) infirmities in title of Plaintiffs, the High
Court concluded that Trial Court and the First Appellate Court had
erred in law. Consequently, the decree for mandatory injunction was
set aside and the suit came to be dismissed, marking a complete reversal
of the earlier concurrent findings.
7. Aggrieved by the judgment and order of the High Court, the Original
Plaintiffs have filed this Civil Appeal.
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SUBMISSION OF THE PARTIES
8. Learned Senior Counsel, S.R.Singh, appearing for the Plaintiffs - Appellants
contended as follows:
8.1. Plaintiffs had filed a suit for mandatory injunction against the
defendant for removal of a wall raised by the defendant, which was
concurrently decreed by both the Trial Court and the First Appellate
Court. The High Court, in exercise of its power under Section 100 of
Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) could
not have went into the re-appreciation of the facts.
8.2. He has further contended that principal ground the Trial Court and the
First Appellate Court, on a thorough appreciation of pleadings and
evidence, concurrently held that plaintiffs are the owners and in settled
possession of the suit land forming part of Khasra No. 436, and that
respondent–BHEL has neither title nor possession over it. It was
conclusively found that Khasra No. 436 was never acquired for BHEL,
a fact reinforced by the admission of BHEL’s own witness that
possession of the relevant old khasra numbers was never handed over
to the company and that the land remained under cultivation.
Consequently, the wall raised by BHEL was held to be illegal and liable
to be removed.
8.3. It was further contended that High Court committed a manifest error in
law by allowing the second appeal and setting aside these concurrent
findings without dealing with them. It is urged that the High Court re-
appreciated the evidence and substituted its own findings on ownership
and possession, despite the settled limitation under Section 100 of CPC
that interference with concurrent findings of fact is not permissible in
second appeal.
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8.4. He further contended that, the High Court wrongly applied Section
41(h) of the Specific Relief Act by holding the suit for injunction to be
barred on the premise that the plaintiffs had not sought possession. He
contended that this finding of the High Court is wholly erroneous since
both the courts had categorically held that plaintiffs were already in
possession of the suit property, making a prayer for possession was not
at all warranted.
8.5. He contended that the impugned judgment is therefore alleged to be
vitiated by jurisdictional error, misapplication of law, and disregard of
binding concurrent factual findings, warranting interference by this
Court.
8.6. The Learned Senior Counsel relied on the judgments of this Court in
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Sant Lal Jain vs. Avtar Singh and Jospeh Severance and Others vs.
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Benny Mathew and others to contend that the suit for mandatory
injunction is maintainable without seeking for the possession of the
property.
9. Shri. Shailesh Madiyal, Learned Senior Counsel appearing for the
respondent/ defendant defended the impugned judgment and contended as
follows:
9.1. The Appeal is not maintainable and deserves dismissal because the
Hon’ble High Court correctly held that a suit seeking mandatory
injunction for removal of a wall, without claiming the consequential
relief of possession, is barred under Section 41(h) of the Specific Relief
Act, 1963. The High Court’s interference was based on a pure question
of law, and therefore no error can be attributed to it for allowing the
second appeal.
9
(1985) 2 SCC 332.
10
(2005) 7 SCC 667.
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9.2. He further contended that, Appellants/Plaintiffs have wrongly alleged
that the High Court substituted findings of fact. In reality, the High
Court decided substantial questions of law, particularly relating to the
statutory bar under Section 41(h) of the Specific Relief Act. Such
determination does not amount to reappreciation of evidence but is a
lawful exercise of jurisdiction in second appeal.
9.3. He further contended that, suit itself was liable to fail as the Appellants
could not identify the specific 15 biswa of land allegedly purchased out
of the large Khasra No. 436. In the absence of clear identification,
dimensions, or measurement of the disputed land and wall, no
injunction could legally be granted. The Trial Court and the First
Appellate Court committed an error in decreeing the suit despite this
fundamental defect.
9.4. He further contended that the grounds raised in the Appeal are
misconceived, factual in nature and does not warrant any interference
by this Court as the impugned judgment of the High Court is just,
proper, and in accordance with law and facts and therefore he sought
for dismissal of the Appeal.
9.5. He further relies on the judgment of this Court in case of Anathula
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Sudhakar vs. P. Buchi Reddy (Dead) by Lrs. And Others to contend
that, when there is cloud regarding ownership and possession of the
property, the suit for mandatory injunction is not maintainable.
10. Having heard the Learned Senior Counsels appearing for the parties and
after perusal of the record available, the following questions arises for
considerations:
I. Whether the Judgment and Decree of dismissal of the Suit passed by
the High Court warrants interference?
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(2008) 4 SCC 594.
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II. What Order?
RE-ISSUE -I
11. Before proceeding to analyse the judgment, it would be apposite to reiterate
the limited facts which stand admitted and are not in dispute between the
parties:
(a) The plaintiffs purchased a parcel of land admeasuring 15 biswa,
forming part of Khewat No. 8/4, Khatauni No. 36, Khasra No. 436, from
Laxminarayan Jha, the recorded zamindar/landholder, and Bashir Khan, a
cultivating tenant of Shreni–III, by a registered sale deed dated 06.01.1992.
(b) The existence of a wall within Survey/Khasra No. 436 is admitted.
Save and except the aforesaid two facts, no other fact is admitted, and all
other facts are in serious dispute between the parties.
12. Firstly, upon a perusal of the respective cases set up by the plaintiffs and the
defendants, it is evident that plaintiffs asserted their title over the disputed
property on the basis of the sale deed; whereas the defendants expressly
disputed the said title. Even at face value, this assertion and denial establish
a clear dispute regarding title over the disputed property, which constitutes
a material issue requiring adjudication in the present case. Secondly, the
plaintiffs claim to be in possession of the disputed property, while the
defendants assert that they themselves are in possession thereof would
clearly indicate, there exists a serious dispute as to possession of the disputed
property. Thirdly, there is also a dispute with regard to the exact location
and identification of the portion of land comprised in Khasra No. 436, within
which the property allegedly purchased by the plaintiffs is stated to be
situated.
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All the aforesaid aspects namely, the dispute as to title, possession, and
identity/location of the property are required to be borne in mind by this
Court while considering whether the plaintiffs are entitled to the relief of
mandatory injunction, as prayed for.
13. Having examined both the disputed and undisputed facts, as noted
hereinabove, this Court now proceeds to consider the reasons which
weighed with the High Court in exercising its limited jurisdiction under
Section 100 of the CPC. Although the reasons for allowing the second
appeal filed by the defendants have already been adverted to, the same are
reiterated hereinafter for the purpose of a focused analysis. While dealing
with the question as to whether the suit was barred under Sections 38 and 41
of the Specific Relief Act, 1963, the High Court held that a suit seeking the
relief of injunction, without claiming the consequential relief of possession,
is barred by Section 41(h) of the said Act. It is apposite to notice the context
in which such a conclusion was arrived at by the High Court. The High Court
observed that if a wall is constructed by the defendant over the disputed
property claimed to be owned by the plaintiffs, such construction amounts
to trespass resulting in dispossession of the plaintiffs from that portion of the
property. In such circumstances, the appropriate remedy available to the
plaintiffs was to institute a suit for possession, in addition to or instead of
seeking an injunction. With regard to the issue of ownership, the High Court
held that although there existed a sale deed in favour of the plaintiffs and
Laxminarayan possessed a transferable title , Bashir Khan , being a Maurusee
Kashtkar (hereditary tenant), was not competent to convey valid title to the
plaintiffs.
13.1. Upon examining the reasoning adopted by both the trial court and the
first appellate court in granting a decree of mandatory injunction, the
High Court expressed its inability to concur with the said finding and
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remarked that “it is strange” as to how such relief had been granted in
the absence of any cogent evidence establishing the exact location of
the portion of land purchased by the plaintiffs within Khasra No. 436,
or demonstrating that the wall in question fell within the said purchased
portion. The High Court further discarded the report relied upon by the
plaintiffs for establishing the location of the disputed property, holding
that the same could not be safely relied upon.
14. Having reproduced the reasons assigned by the High Court, we now proceed
to examine whether the said reasons suffer from any legal infirmity
warranting interference by this Court. Learned Senior Counsel appearing for
the plaintiffs has placed reliance on the decisions of this Court in Sant Lal
Jain v. Avtar Singh (supra) and Joseph Severance and Others v. Benny
Mathew and Others (supra) to contend that a suit for mandatory injunction
is maintainable even in the absence of a prayer for possession. Per contra,
learned Senior Counsel appearing for the defendants has placed strong
reliance on the decision of this Court in Anathula Sudhakar v. P. Buchi
Reddy (Dead) by LRs and Others (supra), to contend that where a serious
cloud over both the title and possession of the disputed property claimed by
the plaintiffs exists, thereby rendering a suit for injunction simpliciter not
maintainable.
15. Before we go to examine the applicability of these cases to the facts in issue,
we would like to first extract Section 41(h) of the Specific Relief Act, which
reads as follows:
“41. Injunction when refused.— An injunction cannot be
granted—
(a) to (g)……………………………….
(h) when equally efficacious relief can certainly be obtained by
any other usual mode of proceeding except in case of breach of
trust;
(ha) to (j)………………………………”
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16. As is evident from Section 41(h) of the Specific Relief Act, 1963, one of the
statutory grounds for refusal of an injunction is the availability of an equally
efficacious remedy. This rule, being expressly prescribed by the statute,
circumscribes the discretion of courts in granting injunctive relief where
such an alternative remedy exists. The expression “equally efficacious
remedy” , as rightly explained by the High Court, denotes a remedy which
would place the Plaintiffs in the same position in which he would have been
had the relief of injunction not been sought. There are, however, limited
categories of cases where a suit for mandatory injunction, by itself, may
constitute an equally efficacious remedy. The factual matrix in Sant Lal
Jain v. Avtar Singh (supra) and Joseph Severance and Others v. Benny
Mathew and Others (supra) are illustrative of such situations, where the
grant of a mandatory injunction was found to be appropriate in the absence
of a prayer for possession.
17.
Learned Senior Counsel appearing for the plaintiffs has placed considerable
reliance on the decision of this Court in Sant Lal Jain v. Avtar Singh (supra)
to contend that, in the facts and circumstances of the present case, a suit for
mandatory injunction was maintainable even in the absence of a prayer for
possession. It therefore becomes necessary for this Court to undertake a
factual examination of the context in which the aforesaid observations were
made in Sant Lal Jain , in order to ascertain whether the said decision is
applicable to the present case.
17.1. In Sant Lal , the appellant, a lessee of the property under the original
owner, had granted a one-year licence to the respondent to use a shed
for workshop purposes. Upon expiry and revocation of the licence, the
respondent failed to vacate, leading the appellant to file a suit for
mandatory injunction directing delivery of possession. The trial court
dismissed the suit by treating the respondent as a sub-tenant, but the
first appellate court reversed this finding, holding that the relationship
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was purely that of licensor and licensee, no rent or tenancy having been
proved, and that there was no undue delay in bringing the suit. It was
further held that, in such factual circumstances, a suit for mandatory
injunction is maintainable without filing a separate suit for possession,
as the respondent’s occupation was admittedly permissive and became
unlawful after revocation of licence. In second appeal, the High Court
allowed additional evidence showing that the respondent had
subsequently purchased the property from the original owner and, on
that basis, restored the trial court’s dismissal.
17.2. This Court reversed the findings of the High Court and restored the
decree in favour of the appellant, holding that the respondent’s
subsequent purchase of the property from the original owner did not
extinguish the appellant’s subsisting lease nor legitimise the
respondent’s possession. A licensee is bound to first surrender
possession upon termination and cannot set up title in himself while
continuing in possession. There was no merger of rights since the
licence had already been revoked prior to the sale. The Court reiterated
that, where possession is permissive and no dispute of title arises, a
mandatory injunction itself constitutes an efficacious remedy, and the
plaintiff cannot be non-suited merely because the relief effectively
results in recovery of possession. Accordingly, the appeal was allowed
and the respondent was directed to deliver vacant possession to the
appellant.
18. It is now important to refer to the factual matrix of Jospeh Severance and
Ors v. Benny Mathew and others (supra) as the counsel for the
appellants/Plaintiffs has relied on this decision heavily.
18.1. In case of Jospeh Severance the appellants, owners of the plaint
schedule property, had granted a licence to the predecessor of the
respondents to construct and run a cinema theatre for a fixed period,
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with a clear stipulation that upon expiry the licensee they would
demolish the structures and surrender vacant possession. After the
death of the original licensee and expiry of the renewed licence period,
the appellants issued notice and filed a suit seeking mandatory
injunction to vacate and demolish the structures, along with prohibitory
injunction. Both the trial court and the first appellate court found that
the licence had come to an end, that the defendants had no tenancy or
independent right, and that their continued occupation was
unauthorised. On these findings, the courts held that a suit for
mandatory injunction was maintainable in the given factual scenario
and decreed the suit. However, the High Court in second appeal
reversed the decree, holding that since the defendants were ex-
licensees, the appellants ought to have filed a suit for recovery of
possession, and further held that there was delay in filing the suit
.
18.2. This Court set aside the High Court’s judgment, holding that the
approach was contrary to settled law and procedurally unsustainable as
no substantial question of law was framed under Section 100 CPC. On
merits, the Court reiterated that a licensee does not become a trespasser
immediately upon termination of licence, and that where the licensor
approaches the court within a reasonable time, a suit for mandatory
injunction is maintainable without driving the plaintiff to a separate suit
for possession, particularly to avoid multiplicity of proceedings. The
question of “reasonable time” is fact-dependent, and in the present case
the plaintiffs’ explanation was plausible, no specific plea or evidence
of unreasonable delay had been raised earlier, and the issue could not
be introduced for the first time in second appeal. Relying on Sant Lal
Jain v. Avtar Singh (supra), this Court held that technical objections
as to the form of the suit should not defeat substantive rights, and
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accordingly restored the maintainability of the suit for mandatory
injunction, allowing the appeal.
19. In view of the aforesaid factual analysis, we are of the considered opinion
that the reliance placed by the learned Senior Counsel for the plaintiffs on
the decisions in Sant Lal Jain and Joseph Severance does not advance the
case of the plaintiffs and is inapplicable to the facts of the present case. This
conclusion is reached for several reasons. Firstly, in both the aforesaid
decisions, the defendants had entered into possession of the property
permissively as licensees. Secondly, the relationship between the parties was
either admitted or conclusively proved. Thirdly, the alleged dispossession
was recent, and Fourthly , there existed no serious dispute with regard to title
or the identity and boundaries of the property. It thus follows that the ratio
laid down in Sant Lal Jain and Joseph Severance applies to cases involving
permissive possession. In contradistinction, in the present case, as noticed in
paragraph 12 hereinabove, there exists a serious dispute concerning both
title and possession, coupled with serious dispute about identity of the land
in question viz. suit schedule property. Consequently, the ratio of the
aforesaid decisions cannot be extended to the present factual matrix.
20. The legal position governing cases where there exists a cloud over both title
and possession of immovable property is well settled. In Anathula
Sudhakar v. P. Buchi Reddy (supra), as rightly relied upon by learned
counsel appearing for the defendants, this Court has authoritatively
delineated the circumstances in which a suit for injunction simpliciter would
or would not be maintainable. This Court, after an exhaustive survey of the
law, held as under:
“13. 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.
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We may refer to them briefly.
13.1. 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 simpliciter 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.
13.2. 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 simpliciter, without claiming the
relief of possession.
13.3. 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 defendant, the
plaintiff will have to sue for declaration of title and the consequential
relief of injunction. Where the title of 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.
14………………………
15. In a suit for permanent injunction to restrain the defendant from
interfering with plaintiff's possession, the plaintiff will have to
establish that as on the date of the suit he was in lawful possession
of the suit property and defendant tried to interfere or disturb such
lawful possession. Where the property is a building or building with
appurtenant land, there may not be much difficulty in establishing
possession. The plaintiff may prove physical or lawful possession,
either of himself or by him through his family members or agents or
lessees/licensees. Even in respect of a land without structures, as for
example an agricultural land, possession may be established with
reference to the actual use and cultivation. The question of title is not
in issue in such a suit, though it may arise incidentally or collaterally.
16. But what if the property is a vacant site, which is not physically
possessed, used or enjoyed? In such cases the principle is that
possession follows title. If two persons claim to be in possession of
a vacant site, one who is able to establish title thereto will be
considered to be in possession, as against the person who is not able
to establish title. This means that even though a suit relating to a
vacant site is for a mere injunction and the issue is one of possession,
it will be necessary to examine and determine the title as a prelude
for deciding the de jure possession. In such a situation, where the
title is clear and simple, the court may venture a decision on the issue
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of title, so as to decide the question of de jure possession even though
the suit is for a mere injunction. But where the issue of title involves
complicated or complex questions of fact and law, or where court
feels that parties had not proceeded on the basis that title was at issue,
the court should not decide the issue of title in a suit for injunction.
The proper course is to relegate the plaintiff to the remedy of a full-
fledged suit for declaration and consequential reliefs.”
21. The principles enunciated in Anathula Sudhakar govern cases where there
exists a dispute as to title and rival claims of possession, whereas the
decisions in Sant Lal Jain and Joseph Severance apply to situations where
the defendant is a terminated licensee or permissive occupant, having no
independent or competing right in the property. In cases such as Sant Lal
Jain and Joseph Severance , there was no cloud over title or possession, or
where the defendant’s occupation flows from a licence or permissive
arrangement, a suit for mandatory injunction is maintainable as the most
efficacious remedy. Viewed thus, there is no inconsistency between the
aforesaid judgments, each operating in its own distinct factual and legal
sphere.
22. In the present case, as noticed hereinabove, there exists a serious dispute
with regard to title, the question that arose was whether the plaintiffs had
derived a valid and enforceable title from their predecessors-in-interest.
Even assuming, arguendo , that the plaintiffs possess a valid title, the High
Court has rightly held that where there is a construction raised on the
disputed property alleged to be owned by the plaintiffs, the appropriate and
efficacious remedy available to them was to institute a suit for possession
along with a consequential relief of injunction, and not a suit for injunction
simpliciter.
23. Thus, upon applying the aforesaid principles, the High Court has rightly held
that the plaintiffs’ suit was barred under Section 41(h) of the Specific Relief
Act, 1963, inasmuch as the plaintiffs failed to seek the relief of possession
19
despite the existence of a cloud over possession of the disputed property.
The suit for injunction simpliciter was, therefore, not maintainable.
24. The High Court has further aptly observed that “it is strange” as to how a
decree of mandatory injunction came to be granted by the trial court, and
subsequently affirmed by the first appellate court, in the absence of any
cogent proof regarding the exact location of the portion of land allegedly
purchased by the plaintiffs within Khasra No. 436. The High Court rightly
noted that there were no measurements whatsoever of the disputed wall,
either in the plaint map or in the judgment and decree passed by the trial
court. In the absence of such foundational evidence, the grant of a decree for
mandatory injunction was wholly unsustainable and could not have been
legally issued.
25. No arguments were seriously pressed before us with regard to the
applicability of Section 69 of the Partnership Act, 1932. Nevertheless,
having regard to the contentions urged on this issue before the courts below,
we are of the considered view that the said issue has been rightly decided in
favour of the plaintiffs by all the courts.
26. From the foregoing analysis, it is evident that, in the present case, the High
Court, while exercising its jurisdiction under Section 100 of the Code of
Civil Procedure, 1908, has rightly set aside the judgment and decree of the
trial court as well as the confirming judgment of the first appellate court.
The High Court found that the concurrent findings recorded by the courts
below were vitiated by serious errors of law, arising from a misapplication
of settled legal principles and a failure to take into account material aspects
having a direct bearing on the rights of the parties. Such errors gave rise to
substantial questions of law, thereby justifying interference in second
appeal.
20
27. The High Court correctly concluded that the judgment and decree of the trial
court, and their affirmation by the first appellate court, were legally
unsustainable, inasmuch as the conclusions reached were perverse, contrary
to the governing statutory framework, and incapable of being sustained on a
proper appreciation of the law. Upon answering the substantial questions of
law framed for consideration, the High Court exercised its corrective
jurisdiction to set aside the impugned judgments and passed the
consequential order dismissing the suit. We, therefore, find no reason to
interfere with the exercise of power by the High Court under Section 100 of
the Code of Civil Procedure, the same having been exercised lawfully and
judiciously.
28. For the above-mentioned analysis and reasons, we are of the view that the
Appeal deserves to be dismissed and same is dismissed. The parties to bear
their own costs. Pending applications if any shall stand disposed of.
........................................................................J.
[ARAVIND KUMAR]
........................................................................J.
[NONGMEIKAPAM KOTISWAR SINGH]
NEW DELHI;
th
JANUARY 15 , 2026.
21
2026 INSC 61
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6075 OF 2016
SANJAY PALIWAL AND ANOTHER ...APPELLANT(S)
VERSUS
BHARAT HEAVY ELECTRICALS LTD.
THROUGH ITS EXECUTIVE DIRECTOR …RESPONDENT(S)
J U D G M E N T
ARAVIND KUMAR, J.
1
1. The Appellants before this Court are the unsuccessful Plaintiffs in a suit for
Mandatory Injunction, and the Respondent is the Defendant in the suit. (The
parties hereinafter are referred to by their respective ranks in the suit). The
2
Trial Court decreed the Suit filed by the Plaintiffs and the First Appellate
3
Court confirmed the judgement and decree of the Trial Court and dismissed
4
the Appeal filed by the Defendant. Aggrieved by the concurrent judgment
and decree of the Trial Court and the First Appellate Court, the Defendant
1
.S. No. 27 of 1994. Hereinafter referred to as ‘the Suit’.
O
2
COURT OF II ADDITIONAL CHIEF JUDICIAL MAGISTRATE/ADDITIONAL
CIVIL JUDGE, HARIDWAR.
3
COURT OF DISTRICT JUDGE, HARIDWAR PRESIDING OFFICER: SHRI V.K.
JAIN.
4
Civil Appeal No. 33/2001.
Signature Not Verified
Digitally signed by
SACHIN KUMAR
SRIVASTAVA
Date: 2026.01.15
17:25:52 IST
Reason:
1
5 6
filed a Second Appeal before the High Court , which came to be allowed
by judgment and decree dated: 07.08.2012 and dismissed the suit of the
Plaintiffs. Hence the Plaintiffs have filed this Appeal.
BRIEF FACTS:
2. The case of the Plaintiffs is as follows:
2.1. The plaintiffs, partners in Vaishali Builders, had purchased a parcel of
land measuring 15 Biswa, Khewat No. 8/4, Khatauni No. 36, Khasra
7
No. 436, situated in Ahmedpur Karachh, Jwalapur, District Haridwar ,
through a registered sale deed dated 06.01.1992 from the previous
owners, Laxminarayan Jha (zamindar/landholder) and Bashir Khan
(cultivating tenant of Shreni-3). After the purchase, the plaintiffs’ firm
name was duly mutated in the revenue records, and they had remained
in ownership and possession of the lands since then.
2.2. The disputed land was depicted as ABCD in the site map attached to
the plaint (which is noted herein below), with specified measurements
i.e. ABCD is 690 “Kari” and length of AC and BD is 26 “Kari”. It was
bounded on the north, south, and west by lands belonging to the
defendant and others, while a pucca road lay on the eastern side.
Plaintiffs claimed access to this road has been essential for the
plaintiffs’ use and enjoyment of their land.
2.3. The dispute arose when the defendant constructed a boundary wall
along the pucca road, specifically between points C and D, which
blocked the plaintiffs’ access. The plaintiff’s had repeatedly requested
the defendant to remove the obstruction, but the defendant refused,
thereby giving rise to the cause of action. According to the plaintiffs,
5
Second Appeal No. 32 of 2004.
6
High Court of Uttarakhand at Nainital.
7
Hereinafter referred to as the Disputed Land.
2
the defendant did not have the right to construct such a wall in a manner
that obstructed their approach to the road.
2.4. Consequently, the plaintiffs filed a suit before the competent court at
Haridwar seeking a decree of mandatory injunction directing the
defendant to remove the boundary wall between points C and D, or for
the court to arrange its removal if the defendant failed to comply. The
suit had been valued at Rs. 500/- as per the estimated cost of removal,
and the requisite court fees was paid thereon. The plaintiffs also sought
costs of the suit and any other relief the court deemed appropriate.
3. On notice, the Defendant appeared in the matter contested the case,
contending as follows:
3.1. The defendant admitted only that its boundary wall had existed for
about thirty years and meets the road on the west. It was asserted that
the plaintiffs have no cause of action, and that the plaintiffs have neither
possession nor any right over the disputed land, which has allegedly
been within the defendant company’s territory for decades. The
3
defendant contended that the wall complained of has existed for around
thirty years and that the plaintiffs’ suit for injunction is not
maintainable. It was further argued that the plaintiffs’ partnership firm
is unregistered, attracting the bar of Section 69 of the Partnership Act.
3.2. The defendant also disputed the plaintiffs’ title, contending that
Laxminarayan Jha and Bashir Khan were neither owners nor cultivators
of the land marked ABCD, and the alleged sale deed dated 06.01.1992
is false. According to the defendant, the disputed land was acquired by
the State Government for its establishment and possession was
officially handed over to the company, therefore, neither the plaintiffs
nor their alleged predecessors ever had ownership or possession over
the same. The defendant alleged the map filed with the plaint is
incorrect, contending that Khasra No. 436 is much larger than claimed,
and argued that an injunction suit is barred under Section 41(h) of the
Specific Relief Act because an alternative remedy of seeking
possession is available.
4. The trial court after framing issues and evaluating the evidence tendered by
both the parties, vide Judgment and Decree dated: 22.03.2001, decreed the
suit filed by the Plaintiffs for the following reasons:
4.1. Primarily on the finding that plaintiffs had successfully established
their title and possession over the disputed land forming part of Khasra
No. 436, Khewat No. 8/4. The plaintiffs proved their ownership
through a registered sale deed dated 06.01.1992 and it was supported
by revenue records, including Khatauni and Khasra entries. The oral
testimony of PW-1, coupled with documentary evidence, revealed that
possession was delivered at the time of sale and continued thereafter.
Crucially, the reports of the Revenue Inspector, Amin, and Local
Commissioner consistently identified the disputed portion (marked in
4
light red) as belonging to the plaintiffs, thereby corroborating their case
and negating the defendant’s plea of exclusive possession.
4.2. Secondly, the Court rejected the defendant’s claim that disputed land
had been acquired by the State and was in the possession of the
defendant company. The defendant’s own witness made admissions
that portions of Khasra No. 436 were not in the possession of the
defendant and that adjoining lands such as Khasra Nos. 433 and 435
were distinct. These admissions, read with the Amin’s affirmed report
and revenue records, clearly established that plaintiffs’ land was not
part of the road or acquired area. The Court therefore held that plaintiffs
were owners in possession and the defendant had unlawfully raised a
boundary wall on the eastern side, obstructing the plaintiffs’ access to
the road.
4.3. Thirdly, the objection regarding maintainability of suit raised under
Section 69 of the Partnership Act was repelled. Although the firm
Vaishali Builders was admittedly unregistered, the Court held that suit
was not based on enforcement of a contractual right but was a common
law action seeking protection of property rights by way of mandatory
injunction. Relying on settled legal principles, the Court concluded that
suit filed by partners of an unregistered firm was maintainable.
Consequently, the statutory bar under Section 69 was held inapplicable,
and the issue was decided in favour of the plaintiffs.
4.4. Finally, on the issues relating to relief of mandatory injunction and bar
under Sections 38 and 41 of the Specific Relief Act, the trial court
found that plaintiffs’ right to access to public road was essential for the
enjoyment and utility of their property. Evidence revealed that earlier
there existed only a wire fencing, leaving a passage, which was later
replaced by a wall that completely blocked access. Such obstruction
amounted to a continuing wrongful act, justifying the grant of a
5
mandatory injunction. Since denial of relief would render the plaintiffs’
land virtually unusable, the Court held it is just and equitable to direct
removal of the wall.
8
5.
The Defendant Company filed an appeal before the First Appellate Court,
challenging the judgment and decree of the Trial Court which came to be
dismissed vide judgment and order dated: 30.01.2004 and confirmed the
judgment and decree of the Trial Court.
6. Aggrieved by the Judgment and decree of the Trial Court and the First
Appellate Court, the Defendant filed a Second Appeal before the High
Court. The High Court after framing substantial question of law, has passed
the impugned order by setting aside the judgment and decree of both the
courts below and dismissing the suit filed by the Plaintiffs on the grounds:
6.1. A decisive legal correction has to be made with regard to the
maintainability of a suit for bare mandatory injunction. It held that
construction of a wall on disputed land amounts to trespass and
dispossession, for which the efficacious remedy is a suit for possession.
Since the plaintiffs sought only removal of the wall without claiming
possession, the suit was held barred under Section 41(h) of the Specific
Relief Act, 1963. It was further held that both the Trial Court and the
First Appellate Court committed a legal error in granting injunction
when the proper remedy was for ejectment or seeking possession, and
answered the substantial question of law in favour of the defendant.
6.2. Secondly, the High Court supplied additional reasoning on the nature
of title flowing from the sale deed, clarifying that a Maurusee Kashtkar
(Class VIII hereditary tenant) has no transferable ownership rights.
Although the sale deed was executed jointly by Bashir Khan (tenant)
and Laxminarayan (one of the recorded co-owners), the Court made it
8
Civil Appeal No. 33/2001.
6
clear that ownership could pass only to the extent of the co-owner’s
share, and not that of the tenant. This clarification substantially diluted
the conclusiveness of the plaintiffs’ title, which had been assumed by
the courts below without examining the limits of transferability under
the revenue law.
6.3. Thirdly, the High Court found fatal factual defects in the proof of
location of the disputed wall or identity of said wall. It held that
mandatory injunction could not be granted unless it was conclusively
shown that wall stood on the exact portion of land purchased by the
plaintiffs. The Court noted that the Amin’s report relied upon by the
courts below was not proved; the plaint map did not disclose the length
or width of the wall, and the report dated 28.09.1992 referred to Khasra
No. 438 instead of 436, rendering it unreliable. In the absence of precise
measurements and identification, the decree for demolition was held to
be legally unsustainable.
6.4. Finally, while affirming that the suit was not barred under Section 69
of the Partnership Act, the High Court held that this finding alone could
not save the decree. On cumulative consideration of (i) the bar under
Section 41(h) of the Specific Relief Act, (ii) lack of proof of wall
location or its identity and, (iii) infirmities in title of Plaintiffs, the High
Court concluded that Trial Court and the First Appellate Court had
erred in law. Consequently, the decree for mandatory injunction was
set aside and the suit came to be dismissed, marking a complete reversal
of the earlier concurrent findings.
7. Aggrieved by the judgment and order of the High Court, the Original
Plaintiffs have filed this Civil Appeal.
7
SUBMISSION OF THE PARTIES
8. Learned Senior Counsel, S.R.Singh, appearing for the Plaintiffs - Appellants
contended as follows:
8.1. Plaintiffs had filed a suit for mandatory injunction against the
defendant for removal of a wall raised by the defendant, which was
concurrently decreed by both the Trial Court and the First Appellate
Court. The High Court, in exercise of its power under Section 100 of
Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) could
not have went into the re-appreciation of the facts.
8.2. He has further contended that principal ground the Trial Court and the
First Appellate Court, on a thorough appreciation of pleadings and
evidence, concurrently held that plaintiffs are the owners and in settled
possession of the suit land forming part of Khasra No. 436, and that
respondent–BHEL has neither title nor possession over it. It was
conclusively found that Khasra No. 436 was never acquired for BHEL,
a fact reinforced by the admission of BHEL’s own witness that
possession of the relevant old khasra numbers was never handed over
to the company and that the land remained under cultivation.
Consequently, the wall raised by BHEL was held to be illegal and liable
to be removed.
8.3. It was further contended that High Court committed a manifest error in
law by allowing the second appeal and setting aside these concurrent
findings without dealing with them. It is urged that the High Court re-
appreciated the evidence and substituted its own findings on ownership
and possession, despite the settled limitation under Section 100 of CPC
that interference with concurrent findings of fact is not permissible in
second appeal.
8
8.4. He further contended that, the High Court wrongly applied Section
41(h) of the Specific Relief Act by holding the suit for injunction to be
barred on the premise that the plaintiffs had not sought possession. He
contended that this finding of the High Court is wholly erroneous since
both the courts had categorically held that plaintiffs were already in
possession of the suit property, making a prayer for possession was not
at all warranted.
8.5. He contended that the impugned judgment is therefore alleged to be
vitiated by jurisdictional error, misapplication of law, and disregard of
binding concurrent factual findings, warranting interference by this
Court.
8.6. The Learned Senior Counsel relied on the judgments of this Court in
9
Sant Lal Jain vs. Avtar Singh and Jospeh Severance and Others vs.
10
Benny Mathew and others to contend that the suit for mandatory
injunction is maintainable without seeking for the possession of the
property.
9. Shri. Shailesh Madiyal, Learned Senior Counsel appearing for the
respondent/ defendant defended the impugned judgment and contended as
follows:
9.1. The Appeal is not maintainable and deserves dismissal because the
Hon’ble High Court correctly held that a suit seeking mandatory
injunction for removal of a wall, without claiming the consequential
relief of possession, is barred under Section 41(h) of the Specific Relief
Act, 1963. The High Court’s interference was based on a pure question
of law, and therefore no error can be attributed to it for allowing the
second appeal.
9
(1985) 2 SCC 332.
10
(2005) 7 SCC 667.
9
9.2. He further contended that, Appellants/Plaintiffs have wrongly alleged
that the High Court substituted findings of fact. In reality, the High
Court decided substantial questions of law, particularly relating to the
statutory bar under Section 41(h) of the Specific Relief Act. Such
determination does not amount to reappreciation of evidence but is a
lawful exercise of jurisdiction in second appeal.
9.3. He further contended that, suit itself was liable to fail as the Appellants
could not identify the specific 15 biswa of land allegedly purchased out
of the large Khasra No. 436. In the absence of clear identification,
dimensions, or measurement of the disputed land and wall, no
injunction could legally be granted. The Trial Court and the First
Appellate Court committed an error in decreeing the suit despite this
fundamental defect.
9.4. He further contended that the grounds raised in the Appeal are
misconceived, factual in nature and does not warrant any interference
by this Court as the impugned judgment of the High Court is just,
proper, and in accordance with law and facts and therefore he sought
for dismissal of the Appeal.
9.5. He further relies on the judgment of this Court in case of Anathula
11
Sudhakar vs. P. Buchi Reddy (Dead) by Lrs. And Others to contend
that, when there is cloud regarding ownership and possession of the
property, the suit for mandatory injunction is not maintainable.
10. Having heard the Learned Senior Counsels appearing for the parties and
after perusal of the record available, the following questions arises for
considerations:
I. Whether the Judgment and Decree of dismissal of the Suit passed by
the High Court warrants interference?
11
(2008) 4 SCC 594.
10
II. What Order?
RE-ISSUE -I
11. Before proceeding to analyse the judgment, it would be apposite to reiterate
the limited facts which stand admitted and are not in dispute between the
parties:
(a) The plaintiffs purchased a parcel of land admeasuring 15 biswa,
forming part of Khewat No. 8/4, Khatauni No. 36, Khasra No. 436, from
Laxminarayan Jha, the recorded zamindar/landholder, and Bashir Khan, a
cultivating tenant of Shreni–III, by a registered sale deed dated 06.01.1992.
(b) The existence of a wall within Survey/Khasra No. 436 is admitted.
Save and except the aforesaid two facts, no other fact is admitted, and all
other facts are in serious dispute between the parties.
12. Firstly, upon a perusal of the respective cases set up by the plaintiffs and the
defendants, it is evident that plaintiffs asserted their title over the disputed
property on the basis of the sale deed; whereas the defendants expressly
disputed the said title. Even at face value, this assertion and denial establish
a clear dispute regarding title over the disputed property, which constitutes
a material issue requiring adjudication in the present case. Secondly, the
plaintiffs claim to be in possession of the disputed property, while the
defendants assert that they themselves are in possession thereof would
clearly indicate, there exists a serious dispute as to possession of the disputed
property. Thirdly, there is also a dispute with regard to the exact location
and identification of the portion of land comprised in Khasra No. 436, within
which the property allegedly purchased by the plaintiffs is stated to be
situated.
11
All the aforesaid aspects namely, the dispute as to title, possession, and
identity/location of the property are required to be borne in mind by this
Court while considering whether the plaintiffs are entitled to the relief of
mandatory injunction, as prayed for.
13. Having examined both the disputed and undisputed facts, as noted
hereinabove, this Court now proceeds to consider the reasons which
weighed with the High Court in exercising its limited jurisdiction under
Section 100 of the CPC. Although the reasons for allowing the second
appeal filed by the defendants have already been adverted to, the same are
reiterated hereinafter for the purpose of a focused analysis. While dealing
with the question as to whether the suit was barred under Sections 38 and 41
of the Specific Relief Act, 1963, the High Court held that a suit seeking the
relief of injunction, without claiming the consequential relief of possession,
is barred by Section 41(h) of the said Act. It is apposite to notice the context
in which such a conclusion was arrived at by the High Court. The High Court
observed that if a wall is constructed by the defendant over the disputed
property claimed to be owned by the plaintiffs, such construction amounts
to trespass resulting in dispossession of the plaintiffs from that portion of the
property. In such circumstances, the appropriate remedy available to the
plaintiffs was to institute a suit for possession, in addition to or instead of
seeking an injunction. With regard to the issue of ownership, the High Court
held that although there existed a sale deed in favour of the plaintiffs and
Laxminarayan possessed a transferable title , Bashir Khan , being a Maurusee
Kashtkar (hereditary tenant), was not competent to convey valid title to the
plaintiffs.
13.1. Upon examining the reasoning adopted by both the trial court and the
first appellate court in granting a decree of mandatory injunction, the
High Court expressed its inability to concur with the said finding and
12
remarked that “it is strange” as to how such relief had been granted in
the absence of any cogent evidence establishing the exact location of
the portion of land purchased by the plaintiffs within Khasra No. 436,
or demonstrating that the wall in question fell within the said purchased
portion. The High Court further discarded the report relied upon by the
plaintiffs for establishing the location of the disputed property, holding
that the same could not be safely relied upon.
14. Having reproduced the reasons assigned by the High Court, we now proceed
to examine whether the said reasons suffer from any legal infirmity
warranting interference by this Court. Learned Senior Counsel appearing for
the plaintiffs has placed reliance on the decisions of this Court in Sant Lal
Jain v. Avtar Singh (supra) and Joseph Severance and Others v. Benny
Mathew and Others (supra) to contend that a suit for mandatory injunction
is maintainable even in the absence of a prayer for possession. Per contra,
learned Senior Counsel appearing for the defendants has placed strong
reliance on the decision of this Court in Anathula Sudhakar v. P. Buchi
Reddy (Dead) by LRs and Others (supra), to contend that where a serious
cloud over both the title and possession of the disputed property claimed by
the plaintiffs exists, thereby rendering a suit for injunction simpliciter not
maintainable.
15. Before we go to examine the applicability of these cases to the facts in issue,
we would like to first extract Section 41(h) of the Specific Relief Act, which
reads as follows:
“41. Injunction when refused.— An injunction cannot be
granted—
(a) to (g)……………………………….
(h) when equally efficacious relief can certainly be obtained by
any other usual mode of proceeding except in case of breach of
trust;
(ha) to (j)………………………………”
13
16. As is evident from Section 41(h) of the Specific Relief Act, 1963, one of the
statutory grounds for refusal of an injunction is the availability of an equally
efficacious remedy. This rule, being expressly prescribed by the statute,
circumscribes the discretion of courts in granting injunctive relief where
such an alternative remedy exists. The expression “equally efficacious
remedy” , as rightly explained by the High Court, denotes a remedy which
would place the Plaintiffs in the same position in which he would have been
had the relief of injunction not been sought. There are, however, limited
categories of cases where a suit for mandatory injunction, by itself, may
constitute an equally efficacious remedy. The factual matrix in Sant Lal
Jain v. Avtar Singh (supra) and Joseph Severance and Others v. Benny
Mathew and Others (supra) are illustrative of such situations, where the
grant of a mandatory injunction was found to be appropriate in the absence
of a prayer for possession.
17.
Learned Senior Counsel appearing for the plaintiffs has placed considerable
reliance on the decision of this Court in Sant Lal Jain v. Avtar Singh (supra)
to contend that, in the facts and circumstances of the present case, a suit for
mandatory injunction was maintainable even in the absence of a prayer for
possession. It therefore becomes necessary for this Court to undertake a
factual examination of the context in which the aforesaid observations were
made in Sant Lal Jain , in order to ascertain whether the said decision is
applicable to the present case.
17.1. In Sant Lal , the appellant, a lessee of the property under the original
owner, had granted a one-year licence to the respondent to use a shed
for workshop purposes. Upon expiry and revocation of the licence, the
respondent failed to vacate, leading the appellant to file a suit for
mandatory injunction directing delivery of possession. The trial court
dismissed the suit by treating the respondent as a sub-tenant, but the
first appellate court reversed this finding, holding that the relationship
14
was purely that of licensor and licensee, no rent or tenancy having been
proved, and that there was no undue delay in bringing the suit. It was
further held that, in such factual circumstances, a suit for mandatory
injunction is maintainable without filing a separate suit for possession,
as the respondent’s occupation was admittedly permissive and became
unlawful after revocation of licence. In second appeal, the High Court
allowed additional evidence showing that the respondent had
subsequently purchased the property from the original owner and, on
that basis, restored the trial court’s dismissal.
17.2. This Court reversed the findings of the High Court and restored the
decree in favour of the appellant, holding that the respondent’s
subsequent purchase of the property from the original owner did not
extinguish the appellant’s subsisting lease nor legitimise the
respondent’s possession. A licensee is bound to first surrender
possession upon termination and cannot set up title in himself while
continuing in possession. There was no merger of rights since the
licence had already been revoked prior to the sale. The Court reiterated
that, where possession is permissive and no dispute of title arises, a
mandatory injunction itself constitutes an efficacious remedy, and the
plaintiff cannot be non-suited merely because the relief effectively
results in recovery of possession. Accordingly, the appeal was allowed
and the respondent was directed to deliver vacant possession to the
appellant.
18. It is now important to refer to the factual matrix of Jospeh Severance and
Ors v. Benny Mathew and others (supra) as the counsel for the
appellants/Plaintiffs has relied on this decision heavily.
18.1. In case of Jospeh Severance the appellants, owners of the plaint
schedule property, had granted a licence to the predecessor of the
respondents to construct and run a cinema theatre for a fixed period,
15
with a clear stipulation that upon expiry the licensee they would
demolish the structures and surrender vacant possession. After the
death of the original licensee and expiry of the renewed licence period,
the appellants issued notice and filed a suit seeking mandatory
injunction to vacate and demolish the structures, along with prohibitory
injunction. Both the trial court and the first appellate court found that
the licence had come to an end, that the defendants had no tenancy or
independent right, and that their continued occupation was
unauthorised. On these findings, the courts held that a suit for
mandatory injunction was maintainable in the given factual scenario
and decreed the suit. However, the High Court in second appeal
reversed the decree, holding that since the defendants were ex-
licensees, the appellants ought to have filed a suit for recovery of
possession, and further held that there was delay in filing the suit
.
18.2. This Court set aside the High Court’s judgment, holding that the
approach was contrary to settled law and procedurally unsustainable as
no substantial question of law was framed under Section 100 CPC. On
merits, the Court reiterated that a licensee does not become a trespasser
immediately upon termination of licence, and that where the licensor
approaches the court within a reasonable time, a suit for mandatory
injunction is maintainable without driving the plaintiff to a separate suit
for possession, particularly to avoid multiplicity of proceedings. The
question of “reasonable time” is fact-dependent, and in the present case
the plaintiffs’ explanation was plausible, no specific plea or evidence
of unreasonable delay had been raised earlier, and the issue could not
be introduced for the first time in second appeal. Relying on Sant Lal
Jain v. Avtar Singh (supra), this Court held that technical objections
as to the form of the suit should not defeat substantive rights, and
16
accordingly restored the maintainability of the suit for mandatory
injunction, allowing the appeal.
19. In view of the aforesaid factual analysis, we are of the considered opinion
that the reliance placed by the learned Senior Counsel for the plaintiffs on
the decisions in Sant Lal Jain and Joseph Severance does not advance the
case of the plaintiffs and is inapplicable to the facts of the present case. This
conclusion is reached for several reasons. Firstly, in both the aforesaid
decisions, the defendants had entered into possession of the property
permissively as licensees. Secondly, the relationship between the parties was
either admitted or conclusively proved. Thirdly, the alleged dispossession
was recent, and Fourthly , there existed no serious dispute with regard to title
or the identity and boundaries of the property. It thus follows that the ratio
laid down in Sant Lal Jain and Joseph Severance applies to cases involving
permissive possession. In contradistinction, in the present case, as noticed in
paragraph 12 hereinabove, there exists a serious dispute concerning both
title and possession, coupled with serious dispute about identity of the land
in question viz. suit schedule property. Consequently, the ratio of the
aforesaid decisions cannot be extended to the present factual matrix.
20. The legal position governing cases where there exists a cloud over both title
and possession of immovable property is well settled. In Anathula
Sudhakar v. P. Buchi Reddy (supra), as rightly relied upon by learned
counsel appearing for the defendants, this Court has authoritatively
delineated the circumstances in which a suit for injunction simpliciter would
or would not be maintainable. This Court, after an exhaustive survey of the
law, held as under:
“13. 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.
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We may refer to them briefly.
13.1. 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 simpliciter 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.
13.2. 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 simpliciter, without claiming the
relief of possession.
13.3. 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 defendant, the
plaintiff will have to sue for declaration of title and the consequential
relief of injunction. Where the title of 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.
14………………………
15. In a suit for permanent injunction to restrain the defendant from
interfering with plaintiff's possession, the plaintiff will have to
establish that as on the date of the suit he was in lawful possession
of the suit property and defendant tried to interfere or disturb such
lawful possession. Where the property is a building or building with
appurtenant land, there may not be much difficulty in establishing
possession. The plaintiff may prove physical or lawful possession,
either of himself or by him through his family members or agents or
lessees/licensees. Even in respect of a land without structures, as for
example an agricultural land, possession may be established with
reference to the actual use and cultivation. The question of title is not
in issue in such a suit, though it may arise incidentally or collaterally.
16. But what if the property is a vacant site, which is not physically
possessed, used or enjoyed? In such cases the principle is that
possession follows title. If two persons claim to be in possession of
a vacant site, one who is able to establish title thereto will be
considered to be in possession, as against the person who is not able
to establish title. This means that even though a suit relating to a
vacant site is for a mere injunction and the issue is one of possession,
it will be necessary to examine and determine the title as a prelude
for deciding the de jure possession. In such a situation, where the
title is clear and simple, the court may venture a decision on the issue
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of title, so as to decide the question of de jure possession even though
the suit is for a mere injunction. But where the issue of title involves
complicated or complex questions of fact and law, or where court
feels that parties had not proceeded on the basis that title was at issue,
the court should not decide the issue of title in a suit for injunction.
The proper course is to relegate the plaintiff to the remedy of a full-
fledged suit for declaration and consequential reliefs.”
21. The principles enunciated in Anathula Sudhakar govern cases where there
exists a dispute as to title and rival claims of possession, whereas the
decisions in Sant Lal Jain and Joseph Severance apply to situations where
the defendant is a terminated licensee or permissive occupant, having no
independent or competing right in the property. In cases such as Sant Lal
Jain and Joseph Severance , there was no cloud over title or possession, or
where the defendant’s occupation flows from a licence or permissive
arrangement, a suit for mandatory injunction is maintainable as the most
efficacious remedy. Viewed thus, there is no inconsistency between the
aforesaid judgments, each operating in its own distinct factual and legal
sphere.
22. In the present case, as noticed hereinabove, there exists a serious dispute
with regard to title, the question that arose was whether the plaintiffs had
derived a valid and enforceable title from their predecessors-in-interest.
Even assuming, arguendo , that the plaintiffs possess a valid title, the High
Court has rightly held that where there is a construction raised on the
disputed property alleged to be owned by the plaintiffs, the appropriate and
efficacious remedy available to them was to institute a suit for possession
along with a consequential relief of injunction, and not a suit for injunction
simpliciter.
23. Thus, upon applying the aforesaid principles, the High Court has rightly held
that the plaintiffs’ suit was barred under Section 41(h) of the Specific Relief
Act, 1963, inasmuch as the plaintiffs failed to seek the relief of possession
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despite the existence of a cloud over possession of the disputed property.
The suit for injunction simpliciter was, therefore, not maintainable.
24. The High Court has further aptly observed that “it is strange” as to how a
decree of mandatory injunction came to be granted by the trial court, and
subsequently affirmed by the first appellate court, in the absence of any
cogent proof regarding the exact location of the portion of land allegedly
purchased by the plaintiffs within Khasra No. 436. The High Court rightly
noted that there were no measurements whatsoever of the disputed wall,
either in the plaint map or in the judgment and decree passed by the trial
court. In the absence of such foundational evidence, the grant of a decree for
mandatory injunction was wholly unsustainable and could not have been
legally issued.
25. No arguments were seriously pressed before us with regard to the
applicability of Section 69 of the Partnership Act, 1932. Nevertheless,
having regard to the contentions urged on this issue before the courts below,
we are of the considered view that the said issue has been rightly decided in
favour of the plaintiffs by all the courts.
26. From the foregoing analysis, it is evident that, in the present case, the High
Court, while exercising its jurisdiction under Section 100 of the Code of
Civil Procedure, 1908, has rightly set aside the judgment and decree of the
trial court as well as the confirming judgment of the first appellate court.
The High Court found that the concurrent findings recorded by the courts
below were vitiated by serious errors of law, arising from a misapplication
of settled legal principles and a failure to take into account material aspects
having a direct bearing on the rights of the parties. Such errors gave rise to
substantial questions of law, thereby justifying interference in second
appeal.
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27. The High Court correctly concluded that the judgment and decree of the trial
court, and their affirmation by the first appellate court, were legally
unsustainable, inasmuch as the conclusions reached were perverse, contrary
to the governing statutory framework, and incapable of being sustained on a
proper appreciation of the law. Upon answering the substantial questions of
law framed for consideration, the High Court exercised its corrective
jurisdiction to set aside the impugned judgments and passed the
consequential order dismissing the suit. We, therefore, find no reason to
interfere with the exercise of power by the High Court under Section 100 of
the Code of Civil Procedure, the same having been exercised lawfully and
judiciously.
28. For the above-mentioned analysis and reasons, we are of the view that the
Appeal deserves to be dismissed and same is dismissed. The parties to bear
their own costs. Pending applications if any shall stand disposed of.
........................................................................J.
[ARAVIND KUMAR]
........................................................................J.
[NONGMEIKAPAM KOTISWAR SINGH]
NEW DELHI;
th
JANUARY 15 , 2026.
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