Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(SC) 480

SUPREME COURT OF INDIA
L. NAGESWARA RAO, B.R. GAVAI, JJ.
KAYALULLA PARAMBATH MOIDU HAJI - APPELLANT
VERSUS
NAMBOODIYIL VINODAN - RESPONDENT
CIVIL APPEAL NOS. 5575-5576 OF 2021 [ARISING OUT OF SLP(C) NOS. 994849 OF 2020]
DECIDED ON : 07-09-2021

Advocates appeared:
For the Petitioner(s):P.N. Ravindran, George Thomas, P.S.Sudheer, Shruti Jose, Advocates
For the Respondent(s):V.Chitambaresh, Ranjith K.C.,, C. Govind Venugopal, Advocates

IMPORTANT POINTS
(1) If matter involved is simple and straightforward, court may decide upon issue regarding title, even in a suit for injunction. If matter involves complicated questions of fact and law relating to title, court will relegate parties to remedy by way of comprehensive suit for declaration of title.
(2) Question of de jure possession has to be established on the basis of title over property.

Headnote:
(A) Injunction – Grant of – Where plaintiff’s title is not in dispute or under cloud, suit for injunction could be decided with reference to finding on possession – If matter involves complicated questions of fact and law relating to title, court will relegate parties to remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction – If matter involved is simple and straightforward, court may decide upon issue regarding title, even in a suit for injunction – However, such cases are exception to normal rule that question of title will not be decided in suits for injunction. (Paras 12 and 13)
(B) Injunction – Suit for Permanent Injunction – Apprehended trespassing by defendants into suit property – Appeal by unsuccessful plaintiff – This is not a case where appellant-plaintiff can be said to have a clear title over suit property or that there is no cloud on appellant-plaintiff’s title over suit property – There is a serious dispute between appellant-plaintiff and respondent-defendant with regard not only to title over suit property but also its identification which cannot be decided unless entire documentary as well as oral evidence is appreciated in a full-fledged trial – Question of de jure possession has to be established on the basis of title over property – Since said property is a vacant site, issue of title would directly and substantially arise for consideration, inasmuch as without finding thereon, it will not be possible to decide issue of possession – No reason to interfere with impugned judgment and order of High Court – Appeals dismissed. (Paras 18, 19, 21 and 22)
Facts of the case:
Present appeals challenge the judgment and order passed by Single Judge of the Kerala High Court dated 21st August 2019 in Regular Second Appeal No. 83 of 2007 thereby allowing the appeal in part and remanding the suit to trial court for fresh disposal. The appeals also challenge the order of Single Judge of the Kerala High Court dated 10th February 2020 in Review Petition No. 1242 of 2019 in RSA No. 83 of 2007 thereby dismissing review petition. Question for consideration is whether Single Judge of High Court was right in holding that the suit simpliciter for permanent injunction without claiming declaration of title, as filed by plaintiff, was not maintainable?
Findings of Court:
Appellant-plaintiff has already amended the suit so as to claim a relief for declaration of title. A consequential amendment has also been made to the written statement by respondent-defendant. In that view of the matter, it will be appropriate that the parties get their right adjudicated with regard to the declaration of title on merits.
Result : Appeals dismissed.

Judgement Key Points

Analysis of Demarcation in the Legal Document

Demarcation, referring to the identification and physical or boundary-based delineation of the suit property, emerges as a central and disputed issue in this property injunction suit. The document highlights how uncertainties in demarcation prevent resolution in a suit for injunction alone, necessitating a full trial on title. Key aspects are analyzed below, with specific references to the text.

1. Dispute Over Property Identity and Boundaries

The plaintiff's plaint describes the suit property with "definite boundaries on all the four sides," including a road on the western side and the defendant's property further west. However, the defendant contests this, claiming the "plaint schedule property is not identifiable from the description given in the plaint" and that the property shown to the Advocate Commissioner differs from the described schedule. (!) [1000742340003]
The defendant specifically alleges that 52½ cents of property, not included in the plaintiff's 1977 assignment deed or purchase certificate, is being wrongly claimed, tying demarcation to title documents. [1000742340003][1000742340014]

2. Role of Advocate Commissioner's Report in Demarcation

The trial court noted discrepancies in survey numbers: plaint schedule as R.S. 28/1A, defendant's claim as R.S. 30/1, but the Commissioner's report indicated R.S. 119/1 or 119/2. The court downplayed survey numbers' relevance for identification. [1000742340015]
The Appellate Court examined the Commissioner's plan (Exhibit C1), identifying a "revetment" (retaining wall) between plots A and B. However, it ruled this could not serve as a "physical demarcation or boundary" due to the rocky, sloping terrain, making a continuous revetment impossible. Plot A (admittedly plaintiff's) led to an inference of possession over disputed Plot B. [1000742340016]

3. Judicial Findings on Demarcation's Complexity

The Supreme Court emphasized a "serious dispute... with regard not only to title over the suit property but also its identification," which cannot be resolved without full evidence appreciation. For a vacant site, de jure possession depends on title, and unclear demarcation (e.g., via boundaries or survey) directly implicates title issues. [1000742340017][1000742340018]
This ties demarcation to the suit's maintainability: simple cases might allow title resolution in injunction suits, but here, complicated facts (boundaries, survey mismatches, rocky features) require a comprehensive title declaration suit. [1000742340011][1000742340012][1000742340018]

4. Procedural Outcome and Implications

Post-remand, the plaintiff amended to claim title declaration, with defendant amending accordingly, enabling merits-based adjudication including demarcation. The Court directed expeditious trial. [1000742340020][1000742340021]
Key Principle: Demarcation disputes, especially on vacant/rocky land, elevate title as a "directly and substantially" arising issue, precluding injunction without declaration. Courts avoid inferring possession from partial features (e.g., incomplete revetments) if identification remains clouded. [1000742340016][1000742340017][1000742340018]

This analysis underscores demarcation as intertwined with possession and title, justifying remand over summary decree. For practical application, parties should prioritize commissioner reports, survey records, and boundary evidence in title suits.

JUDGMENT :

B.R. GAVAI, J.

1. Leave granted.

2. These appeals challenge the judgment and order passed by the learned Single Judge of the Kerala High Court dated 21st August 2019 in Regular Second Appeal No. 83 of 2007 thereby allowing the appeal in part and remanding the suit to the learned trial court for fresh disposal. The appeals also challenge the order of the learned Single Judge of the Kerala High Court dated 10th February 2020 in Review Petition No. 1242 of 2019 in RSA No. 83 of 2007 thereby dismissing the review petition.

3. The facts in brief giving rise to filing of these appeals are as under:

The parties are referred to herein as they were referred to in the original suit. The appellant-plaintiff had filed a plaint in respect of the suit property claiming that it belonged to him by virtue of the registered assignment deed No. 110 of 1977 SRO, Kavilumpara executed by Kalariyullathil Paru. It is the claim of the appellant-plaintiff that he had effected improvements in the suit property and also paid land revenue. It is the claim of the appellant-plaintiff that the respondent-defendant has no right over the suit property. As per the plaint, a portion of the suit property is a coconut garden and the southern side is a rocky area with timber trees. It is the case of the appellant-plaintiff that there are definite boundaries on all the four sides of the suit property. It is his case that there is a road on the western side of the suit property and the respondent-defendant’s property is further westwards. It is the case of the appellant-plaintiff that he is residing at a distance of 1½kms away from the suit property. It is further his case that on 16th January 2002 at about 10:00 a.m., the respondent-defendant and five others trespassed into the plaint schedule property and attempted to cut and remove a jackfruit tree worth Rs.60,000/--. After coming to know the same, the appellant-plaintiff rushed to the spot and prevented the respondent-defendant. The appellant-plaintiff therefore filed a suit with a prayer to restrain the respondent-defendant and his men from trespassing into the suit property, committing waste therein and from interfering with the peaceful possession and enjoyment of the suit property by the appellant-plaintiff.

4. The claim of the appellant-plaintiff was resisted by the respondent-defendant by filing a written statement. It is the case of the respondent-defendant that the plaint schedule property is not identifiable from the description given in the plaint. It is his case that the property described in the plaint schedule and the property shown to the Advocate Commissioner is different. It is the case of the respondent-defendant that the property to the extent of 52½cents belonging to the respondent-defendant, despite not being included in the assignment deed of 1977, is being claimed by the appellant-plaintiff to be in his possession. It is his further case that the said property is also not part of the purchase certificate. It is the case of the respondent-defendant that the suit property never belonged to Kalariyullathil Paru and therefore, no right could be transferred in favour of the appellant-plaintiff by virtue of assignment deed dated 15th January 1977. It is the specific case of the respondent-defendant that the property as described in the plaint was never owned by the appellant-plaintiff or his predecessors.

5. It is the case of the respondent-defendant that he had sold a jackfruit tree to one Nanu and Rafeeq for Rs. 65,000/- which was in the marginally noted property and they had cut and removed the tree. It is the case of the respondent-defendant that as per the Commission’s Report, the timber was seen outside the suit property on the roadside. It is the case of the respondent-defendant that the father of the respondent-defendant namely Puthenpurayil Othenan was having a property admeasuring 85 ×200 six feet kol by virtue of registered assignment deed dated 10th August 1927. According to the re

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