1. Suit for perpetual injunction regarding immovable property — claim of ownership via family settlement — counter-claim for title by adverse possession — subsequent amendment for declaration of title. (Para 2 , 3 , 5 , 6 )
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2023 Supreme(SC) 1017
SUPREME COURT OF INDIA
ABHAY S. OKA, PANKAJ MITHAL, JJ.
Sri. K.M. Krishna Reddy – Appellant
Versus
Sri. Vinod Reddy & Anr. - Respondents
Civil Appeal No. 4471 of 2010
Decided on : 06-10-2023
Important Points
IMPORTANT POINT
Adverse Possession – When in a suit simpliciter for a perpetual injunction based on title, defendant pleads perfection of his title by adverse possession against plaintiff or his predecessor, plaintiff need not claim declaration of title in such a case.
Adverse Possession – When in a suit simpliciter for a perpetual injunction based on title, defendant pleads perfection of his title by adverse possession against plaintiff or his predecessor, plaintiff need not claim declaration of title in such a case.
Subject
Property Law - Adverse Possession
Act Referred
Headnote
Adverse Possession – When in a suit simpliciter for a perpetual injunction based on title, defendant pleads perfection of his title by adverse possession against plaintiff or his predecessor, it cannot be said that there is any dispute about title of plaintiff – Plaintiff need not claim declaration of title in such a case as only issues involved in such a suit are whether plaintiff has proved that he was in possession on the date of institution of suit and whether defendant has proved that he has perfected his title by adverse possession – In case at hand, it was not necessary for appellant to claim declaration of ownership – There was no cloud on his title – Suit, as originally filed, was maintainable – Burden was on respondents to prove their plea of adverse possession, as there was a counter-claim seeking declaration of ownership based on adverse possession – Counter-claim is in nature of a cross-suit – High Court has not considered merits of suit and counter-claim – Regular second appeal remanded to High Court. (Paras 16, 17 and 20)
Facts of the case:
Original plaintiff has preferred this appeal for challenging judgment of High Court in a second appeal by which High Court has interfered and has set aside decree passed by first Appellate Court.
Findings of Court:
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, Regular Second Appeal is of 2007. Therefore, High Court shall give necessary out-of-turn priority to disposal of Regular Second Appeal.
Result : Appeal partly allowed.
Legal Category Hierarchy
- practice and procedure
- property law
Advocates appeared:
For the Appellant(s) : Mr. Rohan Dewan, Adv. Mr. Balaji Srinivasan, AOR
For the Respondent(s): Ms. Shakun Sharma, AOR
For the Appellant(s) : Mr. Rohan Dewan, Adv. Mr. Balaji Srinivasan, AOR
For the Respondent(s): Ms. Shakun Sharma, AOR
Table of Contents
2. Maintainability of injunction suit without declaration of title — whether amendment for declaration of ownership was barred by limitation under Article 58, Limitation Act. (Para 8 , 9 )
3. Plea of adverse possession is incompatible with possession via agreement for sale — adverse possession presupposes ownership of the opposite party, thus not creating a cloud on title. (Para 11 , 12 , 13 , 14 , 16 )
4. Where defendant pleads adverse possession, it presupposes plaintiff's title; thus, no cloud on title exists, and a suit for perpetual injunction remains maintainable without declaration. (Para 16 )
5. Impugned judgment set aside — Regular Second Appeal restored to High Court for decision on merits, excluding the issue of limitation for the amendment. (Para 21 )
6. When is a suit for perpetual injunction maintainable without a prayer for declaration of title?
A suit for injunction simpliciter lies where the plaintiff is in lawful possession and the defendant's challenge does not raise a cloud over the title. If the defendant is a trespasser without apparent title, a suit for injunction is sufficient even if the defendant denies the plaintiff's title. (Para 15 )
7. Does a plea of adverse possession by a defendant create a cloud on the plaintiff's title requiring a suit for declaration?
No. A plea of adverse possession presupposes that the plaintiff is the owner. Because it acknowledges the plaintiff's title as the starting point, it does not create a cloud on the title, and the plaintiff need not seek a declaration of ownership. (Para 16 )
8. How does a claim of possession via part performance of an agreement for sale affect a plea of adverse possession?
A claim that possession was granted under an agreement for sale contradicts a plea of adverse possession. Adverse possession requires hostile possession; however, possession under an agreement for sale is not hostile, thereby defeating the essential requirements of adverse possession. (Para 12 , 13 )
JUDGMENT :
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
2. The appellant filed a suit for a perpetual injunction in respect of the immovable property more particularly described 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 settlement dated 25th 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 cause of action that on 18th 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 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 the family settlement dated 25th April 1993, relied upon by the appellant was void and non-est.
AMENDMENT OF PLAINT
6. The appellant applied on 11th November 1997, to amend the plaint for incorporating paragraph 4(a) and a prayer for declaration of ownership and possession. The Trial Court allowed the amendment by the order dated 04th 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.
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
