Title established despite suppression of possession claims; equitable discretion in granting remedies emphasized, balancing rights against appreciable misconduct.

ORAL JUDGMENT

This Second Appeal arises from divergent findings recorded by First Appellate Court.

2. Initially suit was filed by the predecessor in title of the appellants. The original plaintiff died during the pendency of the suit and his legal representatives are brought on record as plaintiffs No.1 to 7. The plaintiffs succeeded before the Trial Court, which decreed the suit for declaration and injunction. On appeal filed by the defendant, First Appellate Court dismissed the suit. Hence, the plaintiff is in a second appeal.

3. The suit is in respect of the property bearing Sy. No.167, which, according to the plaintiffs, is later numbered as Sy. No.226 with khata No.95, measuring 2 acres, situated at Agasavalli village, Taluk: Shivamogga.

4. Initially, the suit was for declaration and injunction; later, the plaint was amended by incorporating the prayer for possession in the alternative. The plaintiffs' source of title over the property is the registered sale deed dated 28.01.1991, executed by Badiya Naika. The plaintiffs contend that the property was granted to Badiya Naika by the Government in the year 1974 vide grant certificate marked at Ex.P34.

5. The defendant contested the suit. Defendant asserted his possession as an unauthorised occupier and urged that the property granted to Badiya Naika is not the suit property. Defendant also contended that the plaintiff is not entitled to the relief claimed as his earlier suit in O.S. No.517/1991, for the same property was dismissed and said fact is suppressed in the plaint.

6. The Trial Court concluded that the plaintiffs are the owner and in possession and granted the relief of declaration and injunction.

7. First Appellate Court, reversing the findings of the Trial Court, primarily relied on the judgment in the earlier suit to conclude that the plaintiffs are not in possession. Hence, the present second appeal by the plaintiffs.

8. This appeal was admitted on 30.04.2014 to resolve the following substantial questions of law:

i. Whether the Lower Appellate Court was justified in reversing the findings of the Trial Court by recording perverse findings?

ii. Whether the judgment of the Lower Appellate Court is not in accordance with Order XLI Rule 31 CPC ?

9. Since the respondents contend that even if the title is established, the decree for declaration of title and injunction or possession cannot be granted as the original plaintiff is guilty of suppression of a material fact, one more substantial question of law is framed as under:

“Whether the relief of declaration of title and injunction or declaration of title and possession has to be denied only on the ground that the plaintiff has suppressed dismissal of his earlier suit for the same property, even if the plaintiff establishes the title?”

10. Learned Counsel for the appellants urged the following contentions:

10.1 The earlier suit in O.S. No.517/1991 was only a suit for bare injunction. The original plaintiff's title was not adjudicated in the said suit.

10.2 In the earlier suit, the grant certificate in favour of the plaintiffs' vendor was not produced, and the Court concluded that it is not possible to identify the suit land measuring 2 acres in Sy. No.167, which measured around 2,000 acres, and the suit is dismissed on the ground that the property is not identifiable. Dismissal of the earlier suit for not producing the records to prove the description of the property does not come in the way of the plaintiffs filing a suit for declaration of title and injunction based on title deeds.

10.3 In second suit, the plaintiffs have produced the grant certificate in the name of his vendor and also the original registered sale deed dated 28.01.1991. The grant of land in favour of Badiya Naika, the plaintiffs' vendor, is not questioned by the defendant, and the execution of the sale deed in favour of the plaintiffs is not questioned by the defendant. Thus, the plaintiffs' title is established. The Trial Court is justified in granting the relief