A suit for bare injunction is maintainable even without a prayer for declaration, and the court can incidentally give a finding about the title in such cases.

1. The plaintiffs in O.S.No.2514 of 1993 on the file of the I Additional District Munsif Court, Coimbatore are the appellants.

2. The plaintiffs filed the suit for injunction stating that the suit property and other properties belonged to the 4th defendant ancestrally and the total extent of the properties owned by the family was an extent of 60 x 90 feet and thereafter there was a partition in the family and in that partition the 1st plaintiff was allotted an extent of 60 x 30 feet of property and the 1st plaintiff constructed a house in that property and is enjoying the same. As the defendants attempted to interfere with the plaintiffs right to the suit property, the suit was filed for injunction.

3. The defendants 1 to 3 filed a statement denying the oral partition and also the enjoyment of the property by the 1st plaintiff. The 4th defendant also filed the separate statement stating that the property is his self acquired property and the 1st plaintiff can not claim any right in the property and the 4th defendant sold an extent of 30 x 30 feet to the 3rd defendant under a registered sale deed dated 30.11.1993 and the remaining properties are in the possession of the 4th defendant. Therefore, the plaintiffs were never in possession of the property and they are not entitled to injunction.

4. The trial Court on the basis of the documentary evidence held that the property was the ancestral property belonging to the plaintiffs and defendants 1, 2 and 4 and the suit property was allotted to the share of the 1st plaintiff and he has put up construction and he is in possession of the property and therefore he is entitled to injunction. Aggrieved by the same, the defendants 1 and 3 filed an appeal in A.S.No.2 of 1996 and the 4th defendant filed an appeal in A.S.No.5 of 1996 on the file of the First Additional District Court, Coimbatore and the learned First Additional District Judge confirmed the finding of the trial Court and held that the 1st plaintiff is the owner of the suit property and he is possession and enjoyment of the same. Nevertheless, the learned First Additional District Judge, Coimbatore allowed the appeal on the ground that the suit filed for injunction without a prayer for declaration is not maintainable and the appellants/ plaintiffs ought to have prayed for declaration, when the title was disputed and having not prayed for declaration, the suit for bare injunction is not maintainable. Aggrieved by the same, these two Second Appeals are filed.

5. Mr. B.Soundarapandian, the learned counsel for the appellants submitted that both the Courts below have concurrently held that the suit property belongs to the 1st appellant and therefore the concurrent finding of fact cannot be interfered with in the Second Appeals and the lower appellate Court allowed the appeal and dismissed the suit only on the ground that the suit for bare injunction is not maintainable in the absence of any declaration of title and the reasoning of the lower appellate Court that a suit for bare injunction without a prayer for declaration is not maintainable is against the Judgments rendered by this Court reported in 2007 (1) MLJ 827 (A.P.Kuppusamy v. P.Kumarapalayam Municipality, represented by its Commissioner, Tiruchengode Taluk) and 1997 (1) CTC 407 (Yadhavan and another v. Md. Dayanudin and two others) and even in a suit for bare injunction the Court can give incidental finding about the title and the suit cannot be thrown out on the ground that the relief of declaration was not sought for.

6. On the other hand, Mr. V.Nicholas the learned counsel for the 2nd respondent in S.A.No.1317 of 1997 and 5th respondent in S.A.No.1316 of 1997 submitted that when title to the suit property is in dispute it is the duty of the plaintiffs to pray for declaration and a suit for bare injunction is not maintainable. He relied upon the Judgment reported in 2011 (1) Law Weekly 235 (T. Matheswari v. T.G.Tulasi) in support of his contention that a suit for inj