A plaintiff out of possession with disputed title must seek declaratory relief, not bare injunction.

The plaintiffs sued for a permanent injunction to restrain the defendant from encroaching on an alleged 15 ft. × 20 ft. open space adjoining his purchased plot in Survey No. 126, Kolkur Village

The trial court decreed the suit, finding the plaintiffs had proved the existence and possession of the suit property and interference

The first appellate court allowed the defendant’s appeal, set aside the decree, and dismissed the suit, concluding that the plaintiffs had not established the suit property and should seek declaratory relief.

In the second appeal, the High Court noted the plaintiff’s admission that the defendant had constructed a compound wall around his plot, and the defendant’s evidence of construction.

Whether the first appellate court was justified in setting aside the trial court’s decree on the ground that the plaintiffs ought to have sought a declaration concerning their properties and boundaries

Whether the first appellate court’s judgment was perverse for failing to consider the plaintiffs’ oral and documentary evidence properly.

Under Section 100 of the Code of Civil Procedure, a second appeal concerns substantial questions of law. In a suit for bare injunction, the plaintiff must prove possession on the date of suit and interference with that possession.

The Court relied on Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs., (2008) 4 SCC 594: where the plaintiff is out of possession, or the defendant’s denial of title raises a genuine dispute requiring adjudication, a bare injunction suit is insufficient and appropriate declaratory relief must be sought.

Although the High Court considered the first appellate court’s finding that the suit property did not exist to be contrary to findings in O.S. No. 179/2003, it concluded that the appeal’s result was nevertheless correct.

The plaintiff’s admission that the defendant had built a compound wall around his purchased plot, together with the evidence of construction, supported the conclusion that the plaintiffs were not in possession.

Because possession was not established and the defendant disputed the plaintiffs’ title, the plaintiffs could not obtain a bare injunction and would need to pursue comprehensive declaratory relief.

and dismissed the second appeal, confirming the first appellate court’s judgment and decree. It reserved liberty to the plaintiffs to file a comprehensive suit, if so advised.