Full Judgment Text
2023INSC877
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4471 OF 2010
SRI. K.M. KRISHNA REDDY …APPELLANT(S)
VERSUS
SRI. VINOD REDDY & ANR. …RESPONDENT(S)
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL ASPECTS
1. The original plaintiff has preferred this appeal for
challenging the judgment of the High Court in a second appeal
by which the High Court has interfered and has set aside the
decree passed by the first Appellate Court.
PLAINT
Signature Not Verified
2. The appellant filed a suit for a perpetual injunction in
Digitally signed by
Anita Malhotra
Date: 2023.10.06
15:16:00 IST
Reason:
respect of the immovable property more particularly described
CIVIL APPEAL NO. 4471 OF 2010 Page 1 of 13
in the schedule to the plaint (for short, ‘the suit property’).
According to the appellant, he and his brothers succeeded to
the suit property after the demise of his father. He claimed that
the suit property was allotted to his share under a family
th
settlement dated 25 April 1993, executed by and between him
and his brothers. The appellant claims to be in exclusive
possession of the suit property. The suit is founded on the
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cause of action that on 18 June 1994, the respondents tried
to interfere with his possession of the suit property. Therefore,
a suit simpliciter for injunction was filed by him.
WRITTEN STATEMENT CUM COUNTER-CLAIM
3. The respondents-defendants filed a written statement
cum counter-claim accepting that the suit property was
originally owned by Sri. Muniswamappa, the late father of the
appellant. The respondents' contention in the written
statement was that they, along with their family members, were
continuously in possession of the suit property from 1978 and
were storing firewood, bricks, and manure. According to their
case, they have been uninterruptedly using the suit property
since 1978, and they have done so with the knowledge of the
appellant, his father and their other family members, including
his brother M. Jayarama Reddy (for short, ‘Jayarama’).
Therefore, the respondents claimed that they had perfected the
title to the suit property by adverse possession.
4. Another contention raised by the respondents was that in
the partition which took place after the death of the appellant’s
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father, the suit property was allotted to the share of Jayarama.
In October 1983, the said Jayarama approached their mother
and stated that if consideration was paid to him, the
respondents could absolutely enjoy the suit property.
According to the respondents, their mother paid a sum of
Rs.5,500/- as a consideration to Jayarama who executed an
agreement for sale in favour of their mother. It was also
contended that in part performance for the agreement for sale,
the respondents’ mother was put in possession of the suit
property. It was contended in the written statement that the
appellant had filed a suit in collusion with his brother
Jayarama.
5. A counter-claim was made by the respondents claiming a
declaration that they have perfected their title to the suit
property by way of adverse possession. They also claimed that
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the family settlement dated 25 April 1993, relied upon by the
appellant was void and non-est.
AMENDMENT OF PLAINT
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6. The appellant applied on 11 November 1997, to amend
the plaint for incorporating paragraph 4(a) and a prayer for
declaration of ownership and possession. The Trial Court
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allowed the amendment by the order dated 04 June 1998.
After the amendment was allowed, the respondents filed an
additional written statement, contending that the appellant
could not improve his case by amendment.
CIVIL APPEAL NO. 4471 OF 2010 Page 3 of 13
FINDINGS OF THE COURTS
7. The Trial Court dismissed the suit and decreed the
counter-claim. In an appeal preferred by the appellant, the
District Court interfered and decreed the suit filed by the
appellant. In a second appeal preferred by the first respondent,
the High Court interfered by holding that the amendment
incorporating the prayer for declaration was barred by
limitation and that the same would not relate back to the date
of institution of the suit. Hence, the High Court dismissed the
suit. The High Court did not consider any other issue.
SUBMISSIONS
8. The submission of the learned counsel for the appellant
was that all the material particulars regarding the appellant's
title were already incorporated in the plaint as originally filed,
and only by way of abundant caution was the amendment
made to include a prayer for declaration of title. His submission
is that the prayer was already implicit in the plaint as originally
filed. He submitted that though the respondents admitted the
appellant's title, without examining whether the respondents
had established their plea of adverse possession, the High
Court had erroneously interfered with the decree of the first
appellate Court by dismissing the suit.
9. The learned counsel appearing for the respondents urged
that the cause of action pleaded in the plaint as filed initially
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arose on 18 June 1994. He urged that as there was a serious
dispute about the appellant's title, the suit was not
CIVIL APPEAL NO. 4471 OF 2010 Page 4 of 13
maintainable without seeking a declaration of title. He pointed
th
out that the application for amendment was moved on 11
November 1997, after the expiry of the period of limitation
provided under Article 58 of the Limitation Act, 1963 (for short,
‘Limitation Act’). He submitted that the suit must fail once the
amendment is held as time barred.
CONSIDERATION OF SUBMISSIONS
10. We have considered the submissions. As can be seen
from the original plaint and the averments made in paragraph
3, the suit was founded on the title, as the appellant has set
out on what basis he was claiming absolute ownership. There
is an allegation that respondents have no title and no right to
interfere with the appellant’s possession.
11. In paragraph 9 of the written statement cum counter-
claim filed by the respondents, it was specifically admitted that
the appellant’s father owned the suit property. It was urged
that the respondents’ father and, thereafter, the respondents
were in open and peaceful possession of the suit property from
1978 and have perfected their title by adverse possession. An
inconsistent plea was taken that the appellant’s brother
Jayarama had got the suit property in partition and that there
was an agreement for sale executed by the said Jayarama in
favour of their mother. In fact, they claimed that their mother
was put in possession of the suit property in part performance
of the agreement.
CIVIL APPEAL NO. 4471 OF 2010 Page 5 of 13
12. Thus, the respondents admitted the title of the
appellant’s father to the suit property. What was disputed by
the respondents was the claim of the appellant that the suit
property was allotted to his share under the family settlement
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dated 25 April 1993. Thus, even if the document of family
settlement is ignored, the appellant was one of the co-owners
of the suit property after the demise of his father. Though the
respondents claimed that the appellant’s brother Jayarama
was the allottee of the suit property in partition, the
respondents did not prove the partition. They could not
establish that the suit property came to the share of the said
Jayarama. At the highest, the respondents proved that under
an agreement for sale executed by Jayarama, their mother paid
consideration to the said Jayarama. However, in the written
statement cum counter-claim, there is a specific pleading that
is as under:
“Despite the fact that the defendants have
perfected their right by way of adverse
possession, on the advice of some of the well
wishers their mother has paid a sum of Rs.
5,500/- towards full consideration to the
property and M.Jayarama Reddy entered into
an Agreement of Sale and consented for
continuing the possession and possession was
accepted in the said agreement. It is also made
clear that as a part performance of the
agreement to sell, the defendant’s mother has
been put in possession of the same.”
(underlines supplied)
13. Thus, the stand is that their mother was put in
possession of the suit property by Jayarama in part
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performance of the agreement for sale. This contention
completely militates against the plea of adverse possession as
this contention completely defeats the plea of adverse
possession. The reason is that this contention shows that the
respondents are not claiming hostile possession, which is an
essential ingredient of a plea of adverse possession. In fact, at
the trial stage, the respondents ought to have elected one of the
two alternative pleas. However, issues framed by the Trial
Court indicate that the respondents relied upon their plea of
adverse possession as well as their plea based on the
agreement for sale executed by the said Jayarama. Thus, going
by the stand taken in the written statement of the respondents,
they admitted that the appellant’s father was the owner of the
suit property. After the demise of his father, the appellant
became one of the co-owners along with his brothers. The deed
of partition pleaded by the respondents, based on which,
according to them, Jayarama became the owner, has
admittedly not been proved. In fact, in the written statement,
the bare particulars of the partition on the basis of which
Jayarama became the owner were not even pleaded by the
respondents. The relevant part of the pleadings is as follows:
“The defendants submit that pursuant to the
death of Muniswamappa, the plaintiff and his
brothers have partitioned their properties and
the property in question was allotted to
M.Jayaram Reddy though he was not in
possession.”
CIVIL APPEAL NO. 4471 OF 2010 Page 7 of 13
14. Hence, the respondents admitted the ownership of the
appellant’s father through whom the appellant claims title.
Even going by the respondents' case, the appellant was the co-
owner of the property, and the respondents admittedly had no
title in respect of the suit property. Therefore, there was no
dispute about the appellant's title as pleaded in the suit. The
issue was whether the plea of adverse possession defeated that
title. The burden of proving the plea of adverse possession was
on the respondents. The burden on the appellant was to prove
his possession on the date of the suit.
15. The question is whether it was necessary for the
appellant to claim a declaration of title. On this aspect, a
decision of this Court in the case of Anathula Sudhakar Vs. P.
1
Buchi Reddy (dead) by Lrs. And Others is relevant. Para 13
and 14 of the said decision read thus:
“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. 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.
1
(2008) 4 SCC 594
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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 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.
14. 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
CIVIL APPEAL NO. 4471 OF 2010 Page 9 of 13
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.”
(underlines supplied)
16. It is obvious that there was no issue involved about the
title of the plaintiff and his father. It is not as if the respondents
had set up a title in themselves or were claiming through
somebody who was claiming the title. Their plea was of adverse
possession against the appellant, which presupposes that the
appellant was the owner. When in a suit simpliciter for a
perpetual injunction based on title, the defendant pleads
perfection of his title by adverse possession against the plaintiff
or his predecessor, it cannot be said that there is any dispute
about the title of the plaintiff. Hence, the plaintiff need not
claim a declaration of title in such a case as the only issues
involved in such a suit are whether the plaintiff has proved that
he was in possession on the date of the institution of the suit
and whether the defendant has proved that he has perfected
his title by adverse possession. Therefore, in the case at hand,
it was not necessary for the appellant to claim a declaration of
ownership. There was no cloud on his title. Therefore, the suit,
as originally filed, was maintainable.
CIVIL APPEAL NO. 4471 OF 2010 Page 10 of 13
17. Only two questions were required to be dealt with. The
first was whether the appellant had established that he was in
possession of the suit property on the date of the institution of
the suit. If the appellant fails to prove this issue, the suit will
be liable to be dismissed. The burden was on the respondents
to prove their plea of adverse possession, as there was a
counter-claim seeking a declaration of ownership based on
adverse possession. The counter-claim is in the nature of a
cross-suit.
18. The High Court has decided only one issue: whether the
amendment was barred by limitation. Therefore, in view of the
above conclusion, the High Court will have to decide the other
issues.
19. There were two substantial questions of law framed by
the High Court, which read thus:-
“1. Whether the appellate court was justified in
reversing the judgment and decree passed
by the trial court without considering the
aspect of limitation?
2. Whether in the facts and circumstances of
the case of appellate court was justified in
reversing the judgment and decree passed
by the trial court based on Exbhit P-1?”
We agree with the High Court that the amendment was barred
by limitation, considering the date of the cause of action
pleaded and the date of applying for amendment. It was not the
case of the respondents that the suit as originally filed was
CIVIL APPEAL NO. 4471 OF 2010 Page 11 of 13
barred by limitation. Therefore, the first question does not
survive. The second question, as framed, is not a substantial
question of law.
20. As the High Court has not considered the merits of the
suit and counter-claim, we propose to remand the regular
second appeal to the High Court.
21. Hence, appeal is partly allowed. The impugned judgment
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dated 10 February 2010, is set aside, and Regular Second
Appeal No. 1361 of 2007 is restored to the file of the High Court.
Since the appeal is of 2007, which was admitted for final
hearing, we direct the High Court to frame additional
substantial questions of law by exercising power under the
proviso of sub-Section (5) of Section 100 of the Code of Civil
Procedure, 1908. The High Court shall proceed to decide the
Regular Second Appeal in accordance with the law. Except for
the issue of amendment of the plaint being barred by the
limitation, all other issues are left open to be decided by the
High Court.
22. Normally, this Court should never fix a time-bound
schedule for disposal of a case pending before High Courts,
which are Constitutional Courts. But, in this case, the Regular
Second Appeal is of 2007. Therefore, the High Court shall give
necessary out-of-turn priority to the disposal of the Regular
Second Appeal. We direct the parties to this appeal to appear
before the concerned roster Bench of the Karnataka High Court
CIVIL APPEAL NO. 4471 OF 2010 Page 12 of 13
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on 30 October 2023, at 10.30 a.m., for fixing a date for
hearing
23. No order as to costs.
……………………..J.
(Abhay S. Oka)
……………………..J.
(Pankaj Mithal)
New Delhi;
October 06, 2023
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