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Title And Possession: Pre-Requisite To Claim Interim Relief

Division bench of the Apex court reviewed the Order of the Hon'ble High Court of Karnataka in a Simpliciter Suit filed for Injunction to stay proceedings without a prior order of Title. The Apex Court held that a mere suit for injunction Simpliciter is only maintainable when the Declaration of Title to property is not under cloud of dispute, especially in cases of vacant lands.

The remedy of Injunction Simpliciter against a trespasser or wrongdoer provided in law under Civil Procedural Code 1908 Order 39 Rule 1 and 2 is maintainable/applicable when the oral and documentary evidence proves that the property belongs to the Plaintiff.

The issue has been several times adjudicated upon and tried to be brought up before this court, long back from 1936 when the Hon'ble Madras High Court laid down in its order that absence of prayer of Declaration in a Simpliciter Suit does not affect a suit of permanent injunction filed against the trespasser threatening to interfere with the lawful use of property of the plaintiff.[1]

The question that could not be addressed until recently is, even though the court allowed the grant of Injunction in Simplicitor Suit but why could the court cannot do the same in a suit for Declaration.[2] The justification provided was that Court's power to grant Injunction under Section 151 Order 39[3]cannot be doubted or disputed as in this case 1st respondent is seeking an injunction without seeking a declaration.

There is any amount of difference between a suit for declaration and a suit for injunction Simplicitor without declaration. the Apex Court's decision in this regard was that it could exercise its inherent power in a suit for declaration of title simpliciter provided under Order 39, Rules 1 and 2 or even in Section 151 C.P.C to grant Ad Interim Injunction pending suit. (Laid down in case of Rajnibai v. kamla Devi and Ors[4].

The reason behind this differential treatment lies in the very nature of the suit filed. A Simpliciter suit filed for Declaration of title is separate and a Injunction Simpliciter filed to prevent the trespassers unlawful use, damaging conduct and threats to disposes the plaintiff of his de jure rights granted in law is for a different cause.

A Declaratory Decree under law is provided whereby the plaintiff has entitlement to ask for his rights, benefits, property, good interest vested by law unto him. An Injunction can be granted When:
Plaintiff is in lawful or peaceful possession of his property and such possession is interfered or threatened people or group of people, a suit for an injunction simpliciter will lie.

A analogy of the term Injunction provides it is a equitable and discretionary relief as it is not a code or principle that needs a strict compliance but a alternative remedy until the proceedings have not been dismissed or stayed until a solution to the problem is present. It can be called a makeshift remedy for a temporary period. In a case where the actual owner is dispossessed of his property, he can ask the court to stop the trespasser to Misuse his home until a finality to proceedings has been reached to avoid loss of habitat and a security of living for his family so they can make preparations as needed.

The Apex court in its judgement interpreted the case Anathula Sudhakar(supra) where the title came under dispute and maintainability of the injunction suit now relies upon the contention of the plaintiff that he will put forward by filing a suit for Declaration of Title. The principle reiterated must be read in its entirety to be understood.

The principle of this case were explained and relied upon to simply claim that a disputed title requires the plaintiff to file his suit for Declaration and subsequently file a Injunction to claim relief. A title in dispute makes the the plaintiff unable to secure his position as the owner.

It can be inferred from the judgement that there are 3 summarized views:
  1. When the owner is in complete possession of his home and Title. A trespasser tries to interfere or threatens to interfere with use of property. A Injunction Simpliciter suit will suffice with the strong stand of the Owner.
  2. The possession of land is under dispute (absence of residence, Adverse possession by a third party) Relief of possession mandatory to file Injunction. Hence they should file Suit for possession and seek in addition Injunction.
  3. The possession is lawful, title under dispute from assertion of defendant, threat of dispossession remedy by way of injunction not possible. Sue the defendant for claim to Title of the land. Hence, when title and possession under cloud of dispute, file a suit for Declaration, possession and Injunction.

Position of the same has been reaffirmed in Jharkhand State Housing Board v. Didar Singh and Ors.[5] where the Defendant by relying upon the land acquisition proceedings and the possession certificate successfully shed away the title of the Plaintiff and in those circumstances Plaintiff ought to have sought for the relief of declaration. The Courts below erroneously caused delay to file suit for injunction.

11. It is well settled by a plethora of Judgments of this Court that in each and every case where the Defendant disputes the title of the Plaintiff it is not necessary that in all those cases Plaintiff has to seek the relief of declaration. A suit for Mere Injunction will not lie when the opposite party raises a legitable dispute with regard to title but when he raises a cloud over the title of the Plaintiff, then necessarily in those circumstances, Plaintiff cannot maintain a suit for bare injunction.

Evidently after examining these plethora of judgement one must understand the intent behind this legislation. This Dispute doesn't only involve interference or trespass upon property but also includes the way of integrating the ownership of land holdings that are held by different person in different names to amass huge wealth through wrong means. By way of this legislation another cannot register the land in his name and be removed from it upon the pressure of a bigger bhumidar.

Every person will own land in his own name, and be self owner of the land he works and reaps. Large enterprises cannot hide their huge wealth to evade Taxes as every piece of land will have to be in their Legal name or branch name. Hence timely taxation will occur. It acts and functions as a regulatory principle to monitor and prevent concentration of landholdings in one hand.

  1. Muthayyan Swaminatha Sastrial v. S. Narayanama Swaminatha Sastrial, 1936 SCCOnline Mad 345.
  2. Cultor Food Science Inc. v. Nicholas Piramal India Ltd. and Ors, 2002(2) ALD149.
  3. Civil Procedural Code 1908.
  4. 1996 2 SCC 225.
  5. (2019)17SC C 692

    Award Winning Article Is Written By: Mr.Kanishka Pandey
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