Saji Koduvath, Advocate, Kottayam.
When Injunction Granted
Under Sec. 38 (1) Specific Relief Act, injunction is granted to prevent breach of an obligation, express or by implied, existing in plaintiff’s favour:
Essential requirements for Injunction
- Breach of Obligation ‘existing in his (plaintiff’s) favour’: Sec. 38 (1) Sp. Relief Act
- Must be to enforce individual civil rights: Sec. 4 Sp. Relief Act; Sec. 9 CPC
- Plaintiff must have personal interest: Sec. 41(j) Sp. Relief Act
- Discretion of the court: Sec. 36 Sp. Relief Act.
Particular instances (for injunction) specified in Sec. 38 (2) & (3) of the Sp. Relief Act
- Breach of Contractual obligations
- Trustee invades plaintiff’s right
- Defendant invades plaintiff’s rights & no standard for ascertaining damages
- When invasion, compensation in money would not be adequate relief
- Necessary to prevent multiplicity of judicial proceedings.
When Injunction Refused (even if obligation and breach exists)
Sec. 41 (a) to (j) Sp. Rlf. Act lays down the instances when injunction is refused. It is:
- (a) to restrain – a judicial proceeding –
- (b) to restrain – instituting any proceeding in a court not sub-ordinate
- (c) to restrain – any legislative body
- (d) to restrain –proceedings in a criminal matter
- (e) to prevent the breach of a contract – which would not be specifically enforced;
- (f) to prevent- not reasonably clear – it will be a nuisance;
- (g) to prevent – breach which has been acquiesced;
- (h) when equally efficacious relief – certainly be obtained – except – trust;
- (ha) if it would impede or delay infrastructure project
- (i) if conduct – disentitles – assistance of the court;
- (j) if plaintiff has no personal interest in the matter.
Other instances: (Injunction Refused- even if obligation and breach exists)
- If payer is to enforce penal law. Sec. 4 Sp. Relief Act
- If suit became infructuous,
- If prayer granted, ineffective : AIR 1961 All 502
- Brutum fulmen: (AIR 1958 All 706; AIR 1986 AP 306); AIR 1978 HP 2 (BRC needed) AIR 1957 P&H 214 (execution in Pakistan)
- Civil court Jurisdiction, expressly barred by law: (Various Acts)
- Res judicata or O2 R2 CPC bar
- (1) Civil Rights (S. 4)
- (2) Obligation & Breach (S. 38)
When Declaration Needed for Injunction/Recovery
- For establishing or restoring the deprived rights or as introductory/preliminary to grant (1) Injunction or (2) Recovery (Mohd. Manjural Haque v. Bisseswara Banerjee, AIR 1943 Cal 361; Unnikrishnan v. Ponnu Ammal: 1999-1 KLT 298: AIR 1999 Ker 405)
- When serious denial or cloud on title (or right): Anathula: AIR 2008 SC 2033
- Asserted title or civil right is not clear, simple and straight-forward; or, not well-established (lawful possession). Make clear what is doubtful – as to legal character and title. ILR 1970-2 (Del) 433: Eg. Suit by trespasser claiming adverse possession: Darshan Kumari v. Kaushalya Devi: 1990 JKLR 208; 1991 Kash LJ 1 (R.P. Sethi, J) for dispelling cloud: AIR 1953 (Gau) 162.
- Complicated or complex questions of fact and law to be ‘adjudicated’ (Anathula: 2008 SC 2033)
- Insurmountable obstacle – Md. Noorul Hoda v. Bibi Raifunnisa : (1996) 7 SCC 767.
- When the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff: Jharkhand State Housing Board v. Didar Singh , (2019) 17 SCC 692 . Referred to in: Padhiyar Prahladji Chenaji vs Maniben Jagmalbhai: 2022 SCC OnLine SC 258.
- When a title dispute exists; and plaintiff himself elaborated the same in the plaint. A. Subramanian v. R. Pannerselvam, AIR 2021 SC 821.
When Injunction granted Without Declaration
- Where title claimed by the defendant is Nullity, or Ab-initio void.
- No serious cloud, but trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff’s title.
- Established custom/customary-rights (Eg. Village pathway, Marumakkathayam) and suits on settled common law propositions (right of access to the adjoining land from the highways).
- By virtue of enacted provisions of law (Sp. Relief Act, Easements Act, Contract Act etc.)
Persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration. (Anathula: 2008 SC 2033).
When Injunction is granted without declaration:
|Relevant Act||When Injunction or Recovery Granted Without Declaration|
|Sp. Relief Act|
|1. Title: well established; clear,simple and straight-forward; or settled right (lawful possession) or Well established possession|
2. No Substantial questions of fact and law exists (2017 -7 MLJ 627; 2005-4 MLJ 258): Unnikrishnan v. Ponnu Ammal: AIR 1999 Ker 405.
3. No serious denial or cloud(not any apparent defect) on title (or right): Anathula: AIR 2008 SC 2033. (Such as settled or lawful possession: Anathula: AIR 2008 SC 2033; infringement of trade mark or copyright: 2004-3 SCC 90).
4. Void acts: 2000 SC 1099; 2009-4 KLT 840; (2002) 9 SCC 28; AIR 1977 SC 1718; 2013 SC 1226
5. Fraud on character of a document (not contents): Premsingh v. Birbal: (2006) 5 SCC 353
|Sp. Relief Act|
|Particular instances specified in Sec. 38 (2) & (3) of the Sp. Rlf. Act|
1. Breach of Contractual obligations(including Bylaw provisions)
2. Trustee invades plaintiff’s right.
3. No standard for ascertaining damages.
4. Compensation in money would not be adequate relief.
5. Necessary to prevent multiplicity of judicial proceedings.
|SR Act: Sec. 41(h)||Fiduciary obligation (attached to trust): 41(h).|
|..||No lis (no dispute for defendant): 2010-168 DLT 132|
|Evd. Act, S. 57||Facts judicially noticeable: Evd. Act, S. 57|
|35. Injunction to restrain disturbance – Subject to the provisions of the Specific Relief Act, 1877 (1 of 1877)1, sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-|
(a) if the easement is actually disturbed – when compensation for such disturbance might be recovered under this Chapter;
(b) if the disturbance is only threatened or intended – when the act threatened or intended must necessarily, if performed, disturb the easement. (See: Unnikrishnan v. Ponnu Ammal: AIR 1999 Ker 405)
|Law confers a right; or, Right arises under an Act. (Eg. with expression “shall be void”):(2015)7 SCC 601; 2003 SC 4102 Sec. 74 Contract Act: while resisting a claim of return of advance or to support forfeiture of earnest money, the defendant can resist it without a counter claim. In Kailash Nath Associates v. Delhi Development Authority (2015) 4 SCC 136, it is held: “The Section applies whether a person is a plaintiff or a defendant in a suit.”|
|Common Law||Established custom/customary-rights. Eg. Village pathway, Marumakkathayam. It is pointed out in KVK Janardhanan v. State of TN, AIR 1995 Mad 179, that it is a settled proposition –|
“In a case of a public road or a cart track every public has got a right of access to the adjoining land. There is no need to ask for a declaration and if there is any obstruction they can ask for the relief of a mandatory injunction.”
|Consti-tution||Constitutional right: Art. 19, 21, 300A etc.|
|Evd. Act||Estoppel against defendant S. 115, 116 (tenant), 117 (licencee) Evd. Act|
|..||Acquiescence against defendant|
|..||Already declared (in earlier civil case).|
General Principles as to ‘Recovery’
- Plaintiff has to succeed a suit for recovery on title, on the strength of his title.
- If a person is dispossessed ‘otherwise than in due course of law’, he can recover the property under Sec. 6 of the Sp. Relf. Act, on the strength of his earlier possession.
- Though title is not perfected by adverse possession, one can eject a trespasser, (even) after 6 months specified in the Sec. 6 of the Sp. Relf. Act.
- In a suit for recovery on title, even if the defendant claims title as owner and fails to prove it, the plaintiff can win only if he establishes his title.
- In a suit for recovery on title, if the defendant establishes his right to continue possession (honouring possession of the plaintiff) as lessee, licencee, mortgagee etc., the plaintiff will fail.
Suit for Injunction, CF paid for Establishing Title, Cannot be Rejected
Corporation of the City of Bangalore v. V.M. Papaiah, AIR 1989 SC 1809, arose from a suit for perpetual injunction. The defendant Corporation denied the claim of the plaintiffs and asserted its continuous possession since 1927 and pleaded that the suit was not maintainable for not asking for a decree to declare the plaintiff’s title. The Apex Court pointed out that the title had been pleaded in express terms in the plaint, and held as under1:
- “It is well established that for deciding the nature of a suit the entire plaint has to be read and not merely the relief portion, and the plaint in the present case does not leave any manner of doubt that the suit has been filed for establishing the title of the plaintiffs and on that basis getting an injunction against the appellant Corporation. The court fee payable on the plaint has also to be assessed accordingly. It follows that the appellant’s objection that the suit is not maintainable (for not seeking the relief of declaration of title and possession) has to be rejected.”
Defendant Can Resist prayer for Advance Amount Without Counter Claim
A defendant in a suit for recovery of earnest money can resist the prayer for realisation of advance amount, without a counter claim, because Sec. 74 Contract Act which speaks as to ‘party complaining of breach is entitled, reasonable compensation’ applies “whether a person is a plaintiff or a defendant” (even if it is needed, otherwise). See: Kailash Nath v. DDA: (2015) 4 SCC 136.
Therefore, a defendant can adduce evidence to prove that he suffered loss and damages by the breach of the plaintiff and can support forfeiture, and resist the recovery of earnest money.
Facts of Satish Batra v. Sudhir Rawal (2013) 1 SCC 345 and Kailash Nath Associates v. Delhi Development Authority (2015) are good examples to show that a counter claim is not needed to resist the claim of recovery of advance. In both cases purchasers, as plaintiff, instituted the suits for recovery of money paid by them to the seller-defendant. It was earnest money under the terms and conditions. Defendants in both the suits contested claiming right of forfeiture in its Written Statement (without a counter claim).
In every Suit for Recovery, Declaration of Title is Not Essential
In Padmavathi v. Kesava Reddi, 1987-2 Ker LT 386, Dr. Kochu Thommen, J. (as he then was) held that in a suit for recovery of possession on the strength of title, a plaintiff was not obliged to seek the relief of declaration of his title (Followed: Ramkhelawan Sahu v. Bir Surendra Sahi, AIR 1938 Pat 22). See: Unnikrishnan v. Ponnu Ammal: AIR 1999 Ker 405.
If Title of Plaintiff is Nullity, Defendant need Not file a Substantive Suit; It may Become Necessary for the Defendant to Seek Declaration in Counter Claim.
In Bajaranglal Shivchandrai Ruia v. Shashikant N. Ruia, AIR 2004 SC 2546, the defendants contended that the plaintiff’s title, on the basis of the alleged auction sale ‘was a nullity, as it was ultra vires the legal provisions and on the ground of lack of jurisdiction, non-service of demand notice on all the heirs and co-owners’. It was contended from the part of the (original) plaintiff that the sale proceedings could be challenged only by way of a substantive suit, and that the High Court was right in characterising the challenge to the suit by the defendant as a ‘backdoor method’. The Apex Court held as under:
- “If the title claimed by the plaintiff was a nullity and wholly void, there was no need for any of the defendants including Bajranglal to challenge it by way of a substantive suit. They could always set up nullity of title as a defence in any proceeding taken against them based upon such title. If, in fact, the sale was a nullity, it was non est in the eye of law and all that defendant had to do was point this out. (See in this connection: Ajudh Raz and Ors. v. Moti S/o Mussadi,  3 SCC 136 and the opinion of the Full Bench of the Bombay High Court in Abdulla Mian v. Government of Bombay, (1942) 44 Bom LR 577.
- In Vidyadhar v. Manikrao and Anr.,  3 SCC 573, the plaintiff had filed a suit on the basis of a sale deed executed by D-2 in his favour and sought the relief of possession of the property from defendant no. 1 who was an absolute stranger to the sale deed. The question which arose was whether defendant No. l, who was in possession, could justify his possession by urging the nullity of sale transaction between the plaintiff and defendant No. 2. In these circumstances, this Court held (vide para 21):
- ‘The above decisions appear to be based on the principle that a person in his capacity as a defendant can raise any legitimate plea available to him under law to defeat the suit of the plaintiff. This would also include the plea that the sale deed by which the title to the property was intended to be conveyed to the plaintiff was void or fictitious or, for that matter, collusive and not intended to be acted upon. Thus, the whole question would depend upon the pleadings of the parties, the nature of the suit, the nature of the deed, the evidence led by the parties in the suit and other attending circumstances.’
- Here, the plaintiffs suit is for ejection of the defendant and for possession of the suit property. She must succeed or fail on the title that she establishes. If she cannot succeed in proving her title, the suit must fail notwithstanding that the defendant in possession may or may not have title to the property. (See in this connection: Brahma Nand Puri v. Neki Puri,  2 SCR 233 at p. 237).”
If Transfer Ab-initio void, not required to be set aside by filing a suit
In Madhegowda v. Ankegowda, (2002) 1 SCC 178. it is held by our Apex Court as under
- “25………Undoubtedly Smt Madamma, sister of the minor, is not a “guardian” as defined in Section 4(b) of the Act (Hindu Minority and Guardianship Act, 1956). Therefore, she can only be taken to be a “de facto guardian” or more appropriately “de facto manager”. To a transfer in such a case Section 11 of the Act squarely applies. Therefore, there is little scope for doubt that the transfer of the minor’s interest by a de facto guardian/manager having been made in violation of the express bar provided under the section is per se invalid. The existence or otherwise of legal necessity is not relevant in the case of such invalid transfer. A transferee of such an alienation does not acquire any interest in the property. Such an invalid transaction is not required to be set aside by filing a suit or judicial proceeding. The minor, on attaining majority, can repudiate the transfer in any manner as and when occasion for it arises. After attaining majority if he/she transfers his/her interest in the property in a lawful manner asserting his/her title to the same that is sufficient to show that the minor has repudiated the transfer made by the de facto guardian/manager.”
When a person is NOT PARTY to a suit or a document, unnecessary to Annul
It is held in Y. G. Gurukul v. Y. Subrahmanyam, AIR. 1957 AP. 955, as under:
- “When a person is not eo nomine a party to a suit or a document, it is unnecessary for him to have the deed or the decree annulled, and he can proceed on the assumption that there was no such document or decree.
- (Followed in Sankaran V. Velukutty, 1986 Ker LT 794.)
Usman Kurikkal v. Parappur Achuthan Nair, ILR 2012-3 Ker 343; 2012 3 KHC 89, it is held as under:
- “Plaintiff is neither a party to the sale deed nor a party to the resolution empowering the Board to execute the sale deed. The prayer in the plaint is essentially for a declaration that the sale deed is not valid and binding on the plaintiff. The plaintiff has not sought for a cancellation of the sale deed obviously because he was not an executant thereto. The plaintiff can very well ignore the sale deed and need not seek its annulment as has been held in Sankaran v. Velukutty (1986 KLT 794).”
The Supreme Court observed in V. Kalyanaswamy v. L. Bakthavatsalam, 2020 3 RCR(Civ) 404; 2020 9 Scale 367, as under:
- “Plaintiffs-appellants in OS No. 36 of 1963 were not parties to the suit in 1958 and the compromise in OS No. 71 of 1958 will not bind the appellants.”
Where Title claimed by plaintiff not a Nullity, and not wholly Void, should be Challenged
It comes out from the above decision (taking reverse postulation of the proposition laid down) that where the title claimed by the plaintiff was not a nullity and not wholly void, the defendants should have challenged the title by way of a substantive suit, ‘recourse to appropriate legal proceeding’.
There may be several instances where “recourse to appropriate legal proceeding” may be necessitated in ‘void’ transactions. Two among such instances are pointed out in Dhurandhar Prasad Singh v. Jai Prakash University, AIR 2001 SC 2552, as under:
- “The other type of void act, e.g., may be transaction against a minor without being represented by a next friend. Such a transaction is good transaction against the whole world. So far the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning.
- Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as apparent state of affairs is real state of affairs and a party who alleges otherwise is obliged to prove it.”
It goes beyond doubt that such suits should be filed within the limitation period.
Propositions as to Questioning a Deed Where One is NOT a Party:
Where one person is not a party to a deed, following propositions can be laid down:
- Where a deed is ‘null and wholly void‘(e.g., unregistered sale/gift), he can simply avoid the deed and advance with other reliefs.
- Limitation statute will have no application in such cases.
- If it is not ‘null and wholly void‘, he cannot simply avoid the deed and advance with other reliefs.
- But, in such cases, it is not mandatory to seek ‘annulment’ of the deed – by ‘setting it aside’ or ‘cancelling it’.
- It will be sufficient – to resort to “appropriate proceeding”, for avoiding the same, before a court of law, seeking proper declaration or otherwise.
- It must be done within the limitation period prescribed.
See Blog: Void, Voidable, Ab Initio Void, Order Without Jurisdiction and Sham Transactions
Cloud – Explained in Anathula – Para 12
A cloud is raised when some apparent defect in his title or some prima facie right of a third party. Not a cloud, if trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff’s title.
(It should be serious cloud: Kurella Naga (2008) 15 SCC 150: (Quoted in Muddasani: 2016 AIR(SC) 2250)
When declaration refused (S. 34 Proviso)
- Further relief possible and not sought for (S. 34 Proviso). Where relief of partition is to be sought for, it should be prayed.
- Where declaration is a vehicle to launch the weapon of injunction, or recovery – if injunction or recovery itself cannot be granted (or, if granted ineffective: Brutum-fulmen applies)
Seeking Declaration, Without Prayer for Recovery – Barred by Sec. 34
In Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, though the plaintiff was not in possession of the suit property, the suit was filed for declaration of title of ownership (alone) without seeking consequential relief. It was held that the suit was barred by the provision of Section 34 of the Specific Relief Act for not seeking recovery of possession (Refferd to: Ram Saran v. Ganga Devi, AIR 1972 SC 2685, Vinay Krishna v. Keshav Chandra, AIR 1993 SC 957, Gian Kaur v. Raghubir Singh, (2011) 4 SCC 567).
When declaration given without further relief:
- No further relief possible on legal character/status or title.
- Pecuniary rights (S. 34 is limited to legal character and right to property): AIR 1971 MP 65
Declaration on ‘Legal Character’: Anathula Sudhakar Case
S. 34 refers to declaration of status (legal character) or right. Anathula Sudhakar refers to denial/cloud in property rights alone; and not status (legal character).
The same principle can be brought in ‘status’ (legal character) also. It is held in AIR 1995 Ori 59; Quoted in: 2013 3 ILR(Ker) 259; 2013 3 KLJ 411; 2013-3 KLT(SN) 60
Declaration is given when cloud hovering on ‘Legal Character’ also.
- Eg. Matrimonial status of parties to a marriage when it comes to a marriage which allegedly has never taken place either de jure or de facto: Samar Kumar Roy v. Jherna Bera, AIR 2018 SC 334.
- Paternity of a child: Nizar vs Raseena, 2018-4 Ker LT 870; Radhadrishnan v. Indu, 2018-3 Ker LT 664.
- Termination of service on illegality: United Theological College vs Sunny Kulathakkal, 1989 (2) KarLJ 456, ILR 1989 (Kar) 3320 (See also: AIR 1958 SC 886: Quoted in 2016 2 SCC 779).
When court decides upon Title, in Injunction Suit.
In Anathula Sudhakar case, AIR 2008 SC 2033, it is held as under:
- “21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
- (a)…. (b) ….. (c) …
- (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”
Injunction is a Possessory Remedy.
The law as to ‘protection of possession’ by court can be summarised as under:
- Possession by itself is a substantive right recognised by law. It is heritable and transferable.
- Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179;
- Phirayalal Kapur v. Jia Rani, AIR 1973 Delhi 186;
- Nallammal v. Ayisha Beevi, 2017-5 Mad LJ 864).
- It is trite law that courts protect settled possession.
- Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769.
- Injunction is a possessory remedy.
- Ladies Corner, Bangalore vs State of Karnataka, ILR 1987 KAR 1710, 1987 (1) KarLJ 402.
- Patil Exhibitors (Pvt.) Ltd. vs The Corporation of The City (M Venikatachaliah, J.) : AIR 1986 Kant 194, ILR 1985 KAR 3700, 1985 (2) KarLJ 533.
- Referred to in Chetak Constructions v. Om Prakash, AIR 2003 MP 145.
- But, an injunction cannot be issued against a true owner or title holder and in favour of a trespasser or a person in unlawful possession.
- Padhiyar Prahladji Chenaji vs Maniben Jagmalbhai: 2022 SCC OnLine SC 258.
Kesar Bai v. Genda Lal – HC and SC Approached in different Perspectives
Kesar Bai v. Genda Lal, 2022-10 SCC 217, arose from a suit seeking declaration of ownership and permanent injunction. The findings of the High Court were the following:
- the plea of ownership claimed by the plaintiff based on a sale deed and the plea of adverse possession were contrary to each other;
- the plaintiffs could not have been permitted to take both the pleas at the same time;
- but, in view of the fact that the plaintiff was in possession of the suit land since the execution of the said sale deed, the plaintiff was entitled for injunction on the basis of his possession.
Setting aside the High Court judgment the Apex Court held as under:
- “The possession/alleged possession of the plaintiffs could not have been protected by passing a decree of permanent injunction in favour of the plaintiffs”.
Should the Defendant-Rightful-Owner Approach the Court Again For Recovery?
Before Kesar Bai v. Genda Lal, our Apex Court held in Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai, 2022 SCC OnLine SC 258 (M.R. Shah, B.V. Nagarathna, JJ.) to the following effect (see ‘End Notes’ below):
- The plaintiff is not entitled to any injunction and/or protect his possession against the rightful owner, more particularly, when he fails to get the declaratory relief with respect to the title.
- In a suit for permanent injunction to restrain the defendant from interfering with the plaintiff’s possession, the only thing the plaintiff will have to establish is that as on the date of the suit, he was in lawful possession of the suit property and the defendant has tried to interfere or disturb his possession
- the plaintiff, who has failed to get any declaratory relief on title cannot be said to be in “lawful possession”. Only when the person seeking the relief is in lawful possession and enjoyment of the property, he is legally entitled to be in possession, and not to disposes him, except in due process of law.
- The contention of the plaintiff that even if the plaintiff failed to get the declaratory relief and the suit is dismissed, once the plaintiff is found to be in possession, her possession cannot be disturbed except in due process of law and the only remedy available to the defendant would be “to file a substantive suit to get back the possession is noticed only to be rejected outright”.
- In Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira, (2012) 5 SCC 370, it was held that the ‘due process’ or ‘due course’ condition was satisfied the moment the rights of the parties were adjudicated upon by a court of competent jurisdiction, and that it did not matter who brought the action to court.
- In Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira, the Court has approved the following findings of the High Court of Delhi in Thomas Cook (India) Ltd. v. Hotel Imperial (2006) 88 DRJ 545:
- “In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not.”
- Once the rights of the parties are adjudicated and the defendant is held to be the true owner, it can be said that due process of law has been followed and thereafter the plaintiff is not entitled to any permanent injunction against the true owner.
- Note: It is not specifically stated in this decision (Prahladji Chenaji v. Maniben Jagmalbhai) that one can resume possession using force.
Can Rightful Owner Eject Trespasser, by Force; Otherwise than on Due Process of Law?
It goes without saying that the the rightful owner is not legally entitled to eject the interloper or trespasser by force, otherwise than on due process of law; especially when the trespasser is in settled possession.
In Karthiyayani Amma v. Govindan, AIR 1980 Ker 224, the Kerala High Court considered the question whether the rightful owner can eject a trespasser in possession with force; and whether a person in illegal possession could sustain a suit for injunction against the true owner, from forcibly dispossessing him from the property. It was held as under:
- “The ultimate position, therefore, reduces itself to this:
- Can a person in possession without title sustain a suit for injunction against the rightful owner if he proves possession? Yes.
- In this case, plaintiff is found to in be possession. On the finding, he should be granted the injunction prayed for. A person in possession can be evicted only in due process of law. Even the rightful owner cannot eject him with force. If he cannot be evicted with force, he continues to be in possession and he can resist invasion of his possession by everyone including the rightful owner. If the rightful owner threatens his peaceful possession, he can approach Courts of Law and pray for the equitable relief of injunction to protect his possession”. (Followed in: Aiysumma v. Mariyamma, 1994-2 CIVCC 52, 1994-1 KerLT 570. )
It is pointed out in Suresh v. Ashok Girdharilal Chandak, 2016-1 MHLJ 171 that ‘bearing in mind the basic principle of law in civil jurisprudence that even a trespasser cannot be evicted without following due process of law and no one can be allowed to take law into his own hands to recover possession of the property without following due process of law and without proving title to the immovable property in possession of a person holding actual physical possession thereof’.
Person in possession can use Reasonable Force to keep out a Trespasser
In Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769, our Apex Court Court, observed that the law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner. It is held as under:
- “8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser.
- A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force.
- If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession.
- The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force.
- In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.” (quoted in: Subramanya Swamy Temple, Ratnagiri v. V. Kanna Gounder, 2009-3 SCC 306)
Settled Possession and Established Possession
What is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner was made clear in Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769. It reads as under:
- “9. …The “settled possession” must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase “settled possession” does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession.” (quoted in Samarpan Varishtha Jan Parisar vs Rajendra Prasad Agarwal, 2022 SCC OnLine SC 564)
In Poona Ram v. Moti Ram, AIR 2019 SC 813, it was pointed out in a case where there was no document to prove settled possession that ‘merely on doubtful material and cursory evidence, it cannot be held that the plaintiff was ever in possession of the property, and that too in settled possession’. It held further as under:
- “13. The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective,(ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case.”
In A. Subramanian v. R. Pannerselvam, AIR 2021 SC 821, the Supreme Court held that even a trespasser, who is in established possession of the property could obtain injunction. But, it was cautioned that the matter would be different, if the plaintiff himself elaborated in the plaint about title dispute and fails to make a prayer for declaration of title along with injunction relief.
‘Possession is good against all but the True Owner’
This principle is declared in Parry v. Clissold, (1907) AC 73. Though the Supreme Court accepted this principle in Nair Service Society Ltd. v. K.C. Alexander and others, AIR 1968 SC 1165, it was with a clarification. It reads as under:
- “(17) In our judgment this involves an incorrect approach to our problem. To express our meaning we may begin by reading 1907 AC 73, to discover if the principle that possession is good against all but the true owner has in any way been departed from. 1907 AC 73 reaffirmed the principle by stating quite clearly:
- “It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title.”
No decree for recovery unless ‘present right to the possession’
While considering the question whether a worshipper can file a suit for recovery, it is held by our Apex Court, in M Siddiq v. Mahanth Suresh Das (Ayodhya Case) 2019-1 SCC 1, that no decree for recovery of possession can be made in such a suit unless the worshipper has the ‘present right to the possession’. But it is pointed out that in such situations, a worshipper must be permitted to sue as next friend of the deity, sue on behalf of the idol itself – directly exercising the deity’s right to sue.
In Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769, our Apex Court Court, observed as under:
- “8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.” (Quoted in: Poona Ram v. Moti Ram, AIR 2019 SC 813.)
Temporary Mandatory Injunction – to preserve Status Quo of the Last Non-Contested Status
Dorab Cawasji Warden v. Coomi Sorab Warden, AIR 1990 SC 867 : (1990) 2 SCC 117, is the laudable decision on interim mandatory injunction. It is laid down in this decision that interlocutory mandatory injunctions are granted to:
- (i) preserve or restore the status quo ante, of the last non-contested status which preceded the pending controversy, or
- (ii) to compel the undoing of those acts that have been illegally done, or
- (iii) the restoration of that which was wrongfully taken from the party complaining.
It is also pointed out that the court would consider the prospect of granting of a mandatory injunction finally, after trial; and delineated that a fresh state of affairs cannot be allowed to be created by the grant of such an injunction.
See Blog: Mandatory Injunction – Law and Principles
Ayodhya Case – Proceeded on the principle: ‘The court is the protector of all charities’.
It is held by our Apex Court in M Siddiq v. Mahanth Suresh Das (Ayodhya Case) as under:
- When a Shebait is negligent in its duties or takes actions that are hostile to the deity or improperly alienated trust property or refuses to act for the benefit of the idol or where the Shebait’s actions are prejudicial to the interest of the idol, it becomes necessary to confer on a next friend the right to bring an action in law against the Shebait; and a worshipper has an ad hoc power of representation to protect the interest of the idol.
- The court can craft any number of reliefs, including the framing of a scheme. The question of relief is fundamentally contextual and must be framed by the court in light of the parties before it and the circumstances of each case.
It is clear that the our Apex Court has rendered the above edicts adopting the view that ‘the court is the protector of all charities’. [See Blog: M. Siddiq v. Mahant Suresh Das –Pragmatic Verdict on Ayodhya Disputes]
Locus Standi for Plaintiff – Building Regulation Violation
A neighbour who is affected by an illegal construction, or a construction in infraction of a Municipal regulation, will have the locus and can maintain a suit for perpetual injunction. The Kerala High Court, in Saina v. Konderi, AIR 1984 Ker 170, turned down the argument that the matters concerning violation of the Municipal Rules are entirely the look-out of the local authority. It was observed that unless, by express words or by necessary implication he is debarred (Sec. 9 CPC) from doing so, civil court would have jurisdiction if there was violation of Building Rules. Finally, it is held that the law recognises a citizen’s right to institute a suit with a view to ensure effective implementation of the Municipal regulations, such as the Buildings Rules, even in the absence of a specific personal injury to the person suing. The High Court quoted Lord Wright in (1868) 4 Ex. 43 where it was said: “If you have an infringement of a legal right there is a right of action without actual damage being proved…. Where you have an interference with a legal right, the law presumes damage.”
Relying on the Kerala decision, it is observed in Sindhu Education Society v. Municipal Corporation of City of Ulhasnagar, AIR 2001 Bom 145 and in Fatima w/o Caetano Joao v. Village Panchayat of Merces, AIR 2000 Bom 444, it was observed that the citizens will have the right to enforce Rules through Court if the Municipal Corporation fails to perform its duty and that courts in India has the duty to see that the law is obeyed and not violated.
(See also: Babulal Shivlal Upadhye v. Yadav Atmaram Joshi, 1994-2 Bom CR 583; 1994 2 MahLR 869; 1994 1 MhLJ 256; D. Thomas v. N. Thomas, 1999 2 MLJ 260; Musstt Anjira Khatoon Hazarika v. Tapan Kumar Das, 2015 1 GauLR 133.)
In K. Ramdas Shenoy v. Chief Officer, Town Municipal Council, Udipi, AIR 1974 SC 2177, the Apex Court held as follows:
- “An illegal construction of a cinema building materially affects the right to of enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential areas is not spoilt by unauthorized construction. The scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the courts will quash orders passed by Municipalities in such cases.”
Andhra Pradesh High Court quoted the following from Bhagwan Das v. Harish Chetwal in Sarada Bai v. Shakuntala Bai, AIR 1993 AP 20, which read as under:
- “The pronouncement of the Supreme Court in K.R. Shenoy v. Udipi Municipality emboldens us to take a view at variance with the one expressed by a Division Bench of this Court in Kamalamma v. Subba Rao and so hold that an individual, be he a neighbour or one of a class of persons where the infraction of a right is involved and complained of, is certainly clothed with a right to invoke the jurisdiction of a Civil Court not only to enforce the obligations and duties was on the concerned authorities, but also subject the individual or class of individuals to conform to the obligations of the statute.
- If that be so, it presents no difficulty in answering one of the questions raised in this case, viz., whether it would be competent for the neighbour, namely, the petitioners herein to enforce the obligation cast on the Municipal Corporation to remove the structures constructed in contravention of the statutory provisions; and to seek a direction against an individual, plaintiff herein to conform to the obligation laid down in Chapter XII of the Act and to demolish any construction made in contravention thereof, either by way of a civil proceeding or seeking mandamus under Article 226 of the Constitution. The answer is quite apparent and it is in the affirmative.”
A suit for declaration is governed by Article 58 of the Limitation Act and the period of limitation is three years.
Article 65 and not Article 58 of the Limitation Act Governs
In State of Maharashtra v. Pravin Jethalal Kamdar, (2000) 3 SCC 460, it was held by the Supreme Court that merely for the fact that the plaintiff, besides the relief of possession, sought declaration also is of no consequence, and that in such a case the governing article of the Schedule to the Limitation Act would be Article 65. In C. Natrajan v. Ashim Bai, (2007) 14 SCC 183, the Apex Court held that in the suit which has been filed “for possession, as a consequence of declaration of the plaintiff‘s title, Article 58 will have no application.” ,
In Seshumull M. Shah v. Sayed Abdul Rashid , AIR 1991 Kar. 273, Karnataka High Court observed that a suit where possession is claimed as a consequence of the declaration, it would be governed by Article 65 and not Article 58 of the Limitation Act.
In Ashok Kumar v. Mohd. Rustam, 2016 SCC OnLine Del 466: MANU/DE/0197/2016
CS (OS) 3195/2012, it was held as under:
- “16. Article 58 of the Schedule to the Limitation Act, for the relief of declaration, undoubtedly provides limitation of three years from the date when the cause of action accrues. However I am of the opinion that once the plaintiff, besides suing for declaration of title also sues for recovery of possession of immovable property on the basis of title, the limitation for such a suit would be governed by the limitation provided for the relief of possession and not by limitation provided for the relief of declaration. To hold otherwise would tantamount to providing two different periods of limitation for a suit for recovery of possession of immovable property based on title i.e. of three years if the suit besides for the said relief is also for the relief of declaration of title and of twelve years as aforesaid if no relief of declaration is claimed. A relief of declaration of title to immovable property is implicit in a suit for recovery of possession of immovable property based on title inasmuch as without establishing title to property, if disputed, no decree for the relief of possession also can be passed. Thus, merely because a plaintiff in such a suit also specifically claims the relief of declaration of title, cannot be a ground to treat him differently and reduce the period of limitation available to him from that provided of twelve years, to three years. “
- (referred to in Vidur Impex and Traders Pvt. Ltd. v. Pradeep Kumar Khanna, , 2017- 241 Del LT 481)
In S. Krishnamma vs T.S. Viswajith : 2009 (4) KLT 840 it is held that Article 58 is not applicable for declaration that is sought only as an ancillary relief. It is held as under:
When a declaration regarding the void character of the document is sought for that is which would not govern the period of limitation for the suit. The consequential relief sought for is to be treated as main relief governing the period of limitation for the suit. (See Mrs. Indira Bhalchandran Gokhale Vs. Union of India & Another-AIR 1990 Bombay 98). Therefore declaration prayed for in this case as relief Nos. 1 and 2 were unnecessary, and even if made, need only be treated as ancillary to the main relief of partition of immovable properties and the claim that appellant is entitled to get family pension.
In Ashok Kumar v. Gangadhar, 2007 (2) ALD 313, 2007 (3) ALT 561 , it is held as under:
- “If the contention of the defendants that Article 58 applies to the suit for possession based on title where declaration of title is also sought, is accepted, it would amount to ignoring the relief for recovery of possession and application of Article 65 to a suit for possession and taking away the right of the plaintiff to prove that the suit is within 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. If such a suit were to be decided with reference to Article 58 on the ground that the declaration is sought for, application of Article 65 to the suit for possession would be rendered otiose. Such a construction would be opposed to all principles of interpretation of statutes. Therefore different Articles of the Limitation Act will have to be interpreted harmoniously. When such an interpretation is given to Articles 58 and 65 and when the suit is filed for declaration of title to the suit property with consequential relief of possession in my humble view Article 65 of the Limitation Act would apply and not Article 58 of the Limitation Act”.
It is held in Mechineni Chokka Rao v Sattu Sattamma, 2006 (1) ALD 116, as under:
- “10…. It is obvious that Article 58 is in the nature of residuary provision among the declaratory suits. Indubitably the relief of declaration can be sought for in respect of an immovable property or movable property, or in respect of an instrument, or in respect of a decree, or in respect of an adoption. Thus, various types of declaratory reliefs can be sought for pertaining to those categories. Therefore, the relief of declaration alone appears to be not the criterion for prescribing the period of limitation but the subject-matter of the suit in respect of which the declaration is sought for, appears to be germane for consideration.”
- “13. The problem can be viewed in a different dimension. The right over an immovable property will get extinguished as can be seen from Section 27 of the Act only after the expiry of the period prescribed for filing the suit for possession as per Articles 64 and 65 of the Act. Therefore, if the period falls short of the requisite period of 12 years the right over an immovable property will not get extinguished. When the person has a right over an immovable property which right is not extinguished as yet, he can lay the suit in respect of an immovable property even praying for the relief of declaration at any time within the period of 12 years at the end of which, his right would get extinguished. When we consider this clear mandate contained in Section 27 f the Act, it becomes manifest that a declaratory relief in respect of an immovable property can be sought for at any time within the period of 12 years after which the right will get automatically extinguished, notwithstanding the fact that Article 58, the residuary Article for filing declaratory suits, prescribes a period of three years limitation. … ….”
Voidable transactions Requires Setting Aside.
The Supreme Court, in Prem Singh v. Birbal, AIR 2006 SC 3608, it was held that where a suit is filed for cancellation of a transaction on the ground of coercion, under influence or fraud, Article 59 of the Limitation Act would apply. (Referred to in Mohinder Singh Verma v. J P S Verma, 2015 AIR(CC) 3043).
In Narayan v. Babasaheb, (2016) 6 SCC 725, the Apex Court has observed as under:
- “24. When once a transaction takes place in the name of the minor which is in contravention of the 1956 Act and which is not done for legal necessity, such transaction is voidable and unless such a transaction is sought to be impeached or set aside, the question of recovery of possession of that property does not arise.”
Void document – Still needs adjudication – Scribe whether attesting witnesses
In a suit for partition, Ammini Kuruvila v. Kunjumol Charly, 2021-6 KHC 546; 2021-6 Ker LT 403, a gift deed executed 40 years back was challenged by the defendant saying that the (so-shown) second attesting witnesses was a scribe alone, and that he had no animus atttestandi; and thus there was noncompliance of mandate under Section 123 of the Transfer of Property Act, and the deed was void ab initio. No counter claim was raised. No suit had been instituted for declaration or for other reliefs within the time prescribed for the same. Hence it was held that the claim stood hopelessly barred even as on the date of suit of partition. It was observed that there were lot of differences between a document which could be either avoided or ignored by the parties without the intervention of a competent court, for it was ab initio void or nullity in its very inception, and a document that needed adjudication by a competent court.
Ab initio Void Decree or Document –Declaration Sufficient
Sale by total stranger having no right
In Gopakumar v. Kamalakshy Purushothaman, 2019-3 KHC 478; 2019-3 Ker LJ 269 it is held that when a document is executed by a total stranger having no right, title or interest over the property or by a co-owner transferring the interest of other co-owners without any authority, there is no necessity to sue for setting aside the document or its cancellation, but a suit for declaration of title would be sufficient.
A sale deed executed by a stranger to the property is void an initio. It need not be cancelled or set aside. A suit for declaration will be sufficient.
In Prem Singh v. Birbal, AIR 2006 SC 3608: (2006) 5 SCC 353, the Supreme Court held as under:
- “16. When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non-est in the eye of law, as it would be a nullity.”
In Sukhlal v. Devilal, 1954 RajLW 136, Wanchco C.J. held as under:
- “There is a difference between a suit for the cancellation of an instrument and one for a declaration that the instrument is not binding on the plaintiff, when the plaintiff seeks to establish, a title in himself and cannot establish that title without removing an insuperable obstacle such as a decree or a deed to which he has been a party or by which he is otherwise bound then quite clearly he must get that decree or deed cancelled or declared void in toto and his suit is in substance a suit for the cancellation of the decree or deed notwithstanding the fact that the suit may have been framed as a suit for a declaration. On the other hand, when the plaintiff is seeking to establish a title and finds himself threatened by a decree or a transaction between third parties, he is not in a position to get that decree or deed cancelled in toto. The proper remedy in such a case is to get a declaration that the decree or deed is invalid so far as he himself is concerned, and, therefore, he may sue for a declaration to that effect and not for the cancellation of the decree or the deed.” [See:’ Vellayya Konar v. Ramaswami Konar’ (AIR 1939 Mad 894)].
Pragnya Rout v. Hemaprava Ray, AIR 2006 Ori 21, it is held as under:-
- “22. Law is well settled that a decree and/or a registered document which is otherwise ab initio void need not be set aside. Such decree does not strip the right of a party who is the real owner and was not a signatory to the document in question or a party to the suit. It is not the law that merely because somebody has obtained a sale deed he has got title to the property as vendee and his title has to be declared so long as the deed has not been set aside by a competent Court of law. If the deed is void at the threshold, no steps need be taken to set it aside. The vendor may not have title to convey, and in such a case the title deed conveys no title and can be ignored as not worth the paper written on. (See: Sarbeswar v. Commissioner, Consolidation, (1992) 2 Ori LR 362.) In view of such position of law, the argument advanced by Mr. P. Mohanty, learned counsel for the appellant, that the suit is not maintainable in the absence of a prayer to set aside the subsequent sales cannot be accepted.” Quoted in: Gulam Mustafa v. Md. Yusuf Ansari, 2019-1 Jhk CR 83.
Document void ab initio – No need to Cancel – Contract by minor or insane person
In RD Somasundaram Pillai, by next friend S. Bhuaneswar v. S. Janaki Ammal, 1955-1 MLJ 310, it was observed that a contract by a person of unsound mind is void as that of a minor’s contract. Both are void ab initio and there is no need therefore in any suit or proceeding where such persons seek relief to have the cancellation of such a document. They might ignore the existence of such a document as being void and of no effect and proceed to establish their right to other reliefs consequent on the transaction being void. (Also see: J. Kasthuri v. Seth Ghanshamdas Vonsimal Deva Bank, 1979-2 MLJ 11)
Limitation for Setting Aside – Void from inception – No Limitation
In view of Section 12 of the Indian Contract Act, the act of disposition or contract will be void for want of competency to contract, due to the un-soundness of mind, from its very inception. In Musammat Amina Bibi v. Saiyid Yusuf .70 Ind Cas 968: ILR (1922) 44 All 748, it was held that no question of limitation arises in such a matter because it was void from its very inception.
When plaintiff not a party, no need to seek declaration or cancellation or setting aside.
In Natesan v. Pushpavalli, 2013 5 MLJ 613, it is observed that it is a settled law that when the plaintiff was not a party to the deeds, he was not enjoined as per law to seek for either declaration of those deeds as void or for cancellation or setting aside those deeds.
Declaration Not Sufficient; Set Aside/Cancel Decree Needed, Paying proper Court Fee
The Supreme Court, in Md. Noorul Hoda v. Bibi Raifunnisa , JT 1995 (9) SC 256, referred to Section 31 of the Specific Relief Act, 1963 which relates to cancellation of instruments, and observed that the plaintiff was required to seek a declaration of setting aside of such a document. (This decision was distinguished on facts in Gulab Singh v. Hari Singh, 2011-177 DLT 21.)
In Devaki v. Manickam, 2020-1 MLJ 567, the plaint contained a prayer for a declaration that the decree in an earlier suit, wherein the first plaintiff was a party to that suit, is null and void. It is observed that the relief that should have been sought for by the plaintiff was to set aside or cancel the decree and not for a declaration as such.
Lahore High Court in Prithvi Raj v. D. C. Ralli, AIR 1945 Lah 13, it was held that in a suit by the son for a declaration that the mortgage decree obtained against his father was not binding upon him it was essential for the son to ask for setting aside of the decree as a consequence of the declaration claimed and to pay ad valorem court fee under s. 7(iv)(c). It was pointed out that a decree against the father was a good decree against the, son and unless the decree is set aside it would remain executable against the son, and it was essential for the, son to ask for setting aside the decree. (Referred to in Balasubramaniam VS Masilamani, 2011 4 CTC 307.)
It is trite law that where the relief sought for is, in substance, setting aside a decree, or cancelling a deed, or for a declaration with a consequential relief of cancellation or setting aside or injunction, ad valorem court-fees is payable. (See: Shamsher Singh v. Rajinder Prashad, AIR 1973 SC 2384; Israt Jahan v. Rajia Begum, AIR 2010 MP 36; Kamal Kishore v. Jagannath Prasad. 2005-2 MPWN 43. Bombay Ammonia Pvt. Ltd Vs Raj Kumar, 2005-1 AD (Del) 221; 2005-82 DRJ 104; ILR 2004-13 Dlh 836.)
Similarly, where the plaint has been drafted to look as if the relief is of declaration whereas in fact the relief claimed is for the cancellation of decree and sale deeds, in the absence of cancellation of decree and the sale deed the relief claimed by the petitioner for possession by way of partition cannot be granted (Bijender Singh v. Chand Singh, 2009-1 Puj. LR 586; 2009-1 RCR(Civ) 270).
In Shamsher Singh v. Rajinder Prashad, AIR 1973 SC 2384, it was held that in ad valorem court fee would be necessary when the plaintiffs sued for a declaration that the decree obtained by the appellant against their father was not binding on them. It was held as under:
- “4. As regards the main question that arises for decision it appears to us that while the court-fee payable on a plaint is certainly to be decided on the basis of the allegations and the prayer in the plaint and the question whether the plaintiff’s suit will have to fail for failure to ask for consequential relief is of no concern to the court at that stage the court in deciding the question of court-fee should look into the allegations in the plaint to see what is the substantive relief that is asked for Mere astuteness in drafting the plaint will not be allowed to stand in the way of the court looking at the substance of the relief asked for. In this case the relief asked for is on the basis that the property in dispute is a joint Hindu family property and there was no legal necessity to execute the mortgage. It is now well settled that under Hindu Law if the manager of a joint family is the father and the other members are the sons the father may by incurring a debt so long as it is not for an immoral purpose, lay the joint family estate open to be taken in execution proceedings upon a decree for the payment of the debt not only where it is an unsecured debt and a simple money decree for the debt but also to a mortgage debt which the father is personally liable to pay and to a decree for the recovery of the mortgage debt by the sale of the property even where the mortgage is not for legal necessity or for payment of antecedent debt (Faqior Chand v. Harnam Kaur, AIR 1966 SC 727. Consequently when the plaintiffs sued for a declaration that the decree obtained by the appellant against their father was not binding on them they were really asking either for setting aside the decree or for the consequential relief of injunction restraining the decree holder from executing the decree against the mortgaged property as he was entitled to do.
- This aspect is brought out in a decision of the Full Bench of the Lahore High Court. in Mt. Zeb-ul-Nisa v. Din Mohammad, AIR 1941 Lah 97 (FB) where it was held that:
- “The mere fact that the relief as stated in the prayer clause is expressed in a declaratory form does not necessarily show that the suit is for a mere declaration and no more. If the relief so disclosed is a declaration pure and simple and involves no other relief, the suit would fall under Article 17 (iii).”
The Apex Court held further as under:
- “In that case the plaintiff had sued for a twofold declaration: (i) that the property described in the plaint was a waqf, and (ii) that certain alienations thereof by the mutwali and his brother were null and void and were ineffectual against the waqf property. It was held that the second part of the declaration was tantamount to the setting aside or cancellation of the alienations and therefore the relief claimed could not be treated as a purely declaratory one and inasmuch as it could not be said to follow directly from the declaration sought for in the first part of the relief, the relief claimed in the case could be treated as a declaration with a “consequential relief.” It was substantive one in the shape of setting aside of alienations requiring ad valorem court-fee on the value of the subject matter of the sale, and even if the relief sought for fell within the purview of S. 7 (iv) (c) the plaintiffs in view of Sections 8 and 9 Suits Valuation Act, having, already fixed the value of the relief in the plaint for purposes of jurisdiction were bound to fix the same value for purposes of court-fee. It was also pointed out that in deciding whether a suit is a purely declaratory, the substance and not merely the language or the form of the relief claimed should be considered. The court also observed:
- “It seems to me that neither the answer to the question whether the plaintiff is or is not a party to the decree or the deed sought to be declared as null and void, nor to the question whether the declaration sought does or does not fall within the purview of S. 42, Specific Relief Act, furnishes a satisfactory or conclusive test for determining the court fee payable in the suit of this description. When the plaintiff is a party to the decree or deed, the declaratory relief, if granted, necessarily relieves the plaintiff of his obligations under the decree or the deed and, hence it seems to have been held in such cases, that the declaration involves a consequential relief. In cases where the plaintiff is not a party to the decree or the deed, the declaratory relief does not ordinarily include any such consequential relief. But there are exceptional cases in which the plaintiff though not a party to the deed or the decree is nevertheless bound thereby. For instance, when a sale or mortgage of joint family property is effected by a manager of a joint Hindu family, the alienation is binding on the other members of the family (even if they are not parties to it) until and unless it is set aside. Similarly, a decree passed against the manager will be binding on the other members of the family. If therefore a coparcener sues for a declaration that such an alienation or decree is null and void, the declaration must I think be held to include consequential relief in the same way as in those cases in which the plaintiff is himself a party to the alienation or the decree, which is sought to be declared null and void. The case dealt with in AIR 1936 Lah 166 seems to have been of this description. The case of an alienation by a mutwalli of waqf property would also appear to stand on a similar footing. In the case of waqf property, it is only the trustee or the mutwalli who can alienate the property. If he makes an alienation it is binding on all concerned, until and unless it is set aside. If therefore a person sues to get such an alienation declared null and void, he can only do so by getting the deed invalidated. The relief claimed in such cases also may therefore be found to include a consequential relief.”
The Supreme Court continued as under:
- “The decision of the Lahore High Court in Prithvi Raj v. D. C. Ralli, AIR 1945 Lah 13 is exactly in point. It was held that in a suit by the son for a declaration that the mortgage decree obtained against his father was not binding upon him it is essential for the son to ask for setting aside of the decree as a consequence of the declaration claimed and to pay ad valorem court fee under Section 7 (iv) (c). It was pointed out that a decree against the father is a good decree against the son and unless the decree is set aside it would remain executable against the son and it was essential for the son to ask for setting aside the decree. In Vinayakrao v. Mankunwarbai, AIR 1943 Nag 70 it was held that in a suit by the son for a declaration that decree against the father does not affect his interests in the family property, consequential relief is involved and ad valorem court fee would be necessary.” Referred to in Balasubramaniam VS Masilamani, 2011 4 CTC 307; Prashant Glass Works Limited v. Bank of Baroda, 2011-4 ADJ 423; 2011-86 All LR 372; Bijender Singh v. Chand Singh, 2009-1 PLR 586; 2009-1 RCR(Civ) 270; Bijender Singh v. Chand Singh, 2009-1 Puj. LR 586; 2009-1 RCR(Civ) 270)
Declaration and Recovery – Not Article 58, but Article 65 is Relevant
In Gopakumar v. Kamalakshy Purushothaman, 2019 3 KHC 478; 2019 3 Ker LJ 269 it is held as under:
- “Article 58 of the Limitation Act would be applicable in a suit for declaration, but it has no application when the relief sought in the plaint is not for a mere declaration, but coupled with other reliefs like injunction, partition, possession etc. and Article 65 of the Limitation Act would come into play giving 12 year period. In the instant case, the relevant Article which can be applied is not Article 58, but Article 65 as the suit was filed not merely for a relief of declaration, but for declaration of title and for recovery of possession of immovable property.”
Title Declaration – Plaintiff to succeed on the strength of his own title
In Jagdish Prasad Patel v. Shivnath, (2019) 6 SCC 82, our Apex Court explained the well accepted principle that in a suit for declaration of title and possession, ‘the plaintiffs will succeed on the strength of their own title irrespective of whether defendants proved their case or not’ in the following words:
- “44. In the suit for declaration for title and possession, the Plaintiffs-Respondents could succeed only on the strength of their own title and not on the weakness of the case of the Defendants-Appellants. The burden is on the Plaintiffs-Respondents to establish their title to the suit properties to show that they are entitled for a decree for declaration. The Plaintiffs-Respondents have neither produced the title document i.e. patta-lease which the Plaintiffs-Respondents are relying upon nor proved their right by adducing any other evidence. As noted above, the revenue entries relied on by them are also held to be not genuine. In any event, revenue entries for few Khataunis are not proof of title; but are mere statements for revenue purpose. They cannot confer any right or title on the party relying on them for proving their title.
- 45. Observing that in a suit for declaration of title, the Plaintiffs- Respondents are to succeed only on the strength of their own title irrespective of whether the Defendants-Appellants have proved their case or not, in Union of India v. Vasavi Coop. Housing Society Limited, (2014) 2 SCC 269, it was held as under SCC p.275, para 15) “15. It is trite law that, in a suit for declaration of title, the burden always lies on the Plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the Defendants would not be a ground to grant relief to the Plaintiff.”” (referred to in A. Subramanian v. R. Pannerselvam, AIR 2021 SC 821.)
In Union of India v. Vasavi Co-op. Housing Society Ltd, 2014 AIR SCW 580, it is held as under:
- “The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against, in the absence of establishment of plaintiff’s own title, plaintiff must be non-suited.” (Quoted in: Gulam Mustafa v. Md. Yusuf Ansari, 2019-1 Jhk CR 83)
Temporary Injunction – Prima Facie Case and Balance of Convenience
Temporary Injunction is Issued to Preserve Status Quo
But, not to perpetuate illegality
In Seema Arshad Zaheer VS Municipal Corporation of Greater Mumbai, 2006 5 SCC 282, our Apex Court held as under:
- “It is true that in cases relating to orders for demolition of buildings, irreparable loss may occur if the structure is demolished even before trial, and an opportunity to establish by evidence that the structure was authorized and not illegal. In such cases, where prima facie case is made out, the balance of convenience automatically tilts in favour of plaintiff and a temporary injunction will be issued to preserve status quo. But where the plaintiffs do not make out a prima facie case for grant of an injunction and the documents produced clearly show that the structures are unauthorized, the court may not grant a temporary injunction merely on the ground of sympathy or hardship. To grant a temporary injunction, where the structure is clearly unauthorized and the final order passed by the Commissioner (of the Corporation) after considering the entire material directing demolition, is not shown to suffer from any infirmity, would be to encourage and perpetuate an illegality.”
In Dorab Cawasji Warden v. Coomi Sorab Warden, AIR 1990 SC 867 : (1990) 2 SCC 117, our Apex Court also held that he relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining.
Relevant Provisions of the Specific Relief Act
|S.2 (a)||“Obligation“||“Obligation” includes every duty enforceable by law|
|S.4||Specific relief||Specific relief to be granted only for enforcing individual civil rights and not for enforcing penal laws: Sp. relief can be granted only for the purpose of enforcing individual civil rights and not for the mere purpose of enforcing a penal law.|
|S.34||Declaration||Discretion of court as to declaration of status or right. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation.-A trustee of property is a “person interested to deny” a title adverse to the title of someone who is not inexistence, and for whom, if in existence, he would be a trustee.|
|S.36||Preventive relief how granted.- Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual.|
|S.38||Perpetual injunction||Perpetual injunction when granted (1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. (2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II. (3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:- (a) where the defendant is trustee of the property for the plaintiff; (b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion; (c) where the invasion is such that compensation in money would not afford adequate relief; (d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.|
|S.39||Mandatory injunctions||Mandatory injunctions: When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.|
|S.41||Injunction when refused||Injunction when refused: An injunction cannot be granted- (a) to restrain any person from prosecuting a judicial proceeding …..; (b) to restrain instituting … any proceeding in a court not sub-ordinate … (c) to restrain any person from applying to any legislative body (d) to restrain – proceedings in a criminal matter; (e) prevent breach of contract performance of which not be specifically enforced; (f) to prevent – an act of which it is not reasonably clear that it will be a nuisance; (g) to prevent a continuing breach in which the plaintiff has acquiesced; (h) when equally efficacious relief can certainly be obtained …. except in case of breach of trust; [(ha) if it would impede or delay the progress or completion of infrastructure project or interfere with the continued provision of relevant facility …..] (i) when the conduct of the plaintiff or his agents …. disentitle him to be the assistance of the court; (j) when the plaintiff has no personal interest in the matter.|
Articles 58 and 59 of the Limitation Act deal with limitation for declaration and cancellation. It reads as under:
|S. No.||Description of the suit||Period of limitation||Time from which period begins to run|
|58.||To obtain any other declaration||Three Years||When the right to sue first accrues|
|59||To cancel or set aside an instrument or decree or for rescission of a contract.||Three Years||When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him.|
Read in this cluster (Click on the topic):
Civil Suits: Procedure & Principles
- Res Judicata and Constructive Res Judicata
- Production of Documents in Court: Order 11, Rule 14 CPC is not independent from Rule 12
- Best Evidence Rule in Indian Law
- Civil Rights and Jurisdiction of Civil Courts
- Pleadings Should be Specific; Why?
- Order II, Rule 2 CPC – Not to Vex Defendants Twice for the Same Cause of Action
- Res Judicata and Constructive Res Judicata
- Modes of Proof of Documents
- EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION
- PRODUCTION, ADMISSIBILITY & PROOF OF DOCUMENTS
- OBJECTIONS TO ADMISSIBILITY & PROOF OF DOCUMENTS
- Does Alternate Remedy Bar Civil Suits and Writ Petitions?
- Void, Voidable, Ab Initio Void, Order Without Jurisdiction and Sham Transactions
- When ‘Possession Follows Title’; When ‘Title Follows Possession’?
- Adverse Possession: Burden to Plead Sabotaged in Nazir Mohamed v. J. Kamala
- Can Courts Award Interest on Equitable Grounds?
- Notary Attested Power-of-Attorney is Sufficient for Registration of a Deed
- Sec. 91 CPC and Suits Against Wrongful Acts
- Declaration and Injunction
- The Law and Principles of Mandatory Injunction
- Natural Justice – Not an Unruly Horse, Cannot be Placed in a Straight-Jacket & Not a Judicial Cure-all.
- Unstamped & Unregistered Documents and Collateral Purpose
- Interrogatories: When Court Allows, When Rejects?
- Can a Party to Suit Examine Opposite Party, as of Right?
- Is Permission of Court Mandatory when a Power of Attorney Holder Files Suit
- Adverse Possession: An Evolving Concept
- Oral Evidence on Contents of Document, Irrelevant
- ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ under Sec. 65B Evidence Act.
- OBJECTIONS TO ADMISSIBILITY & PROOF OF DOCUMENTS
- Sections 65A & 65B, Evidence Act and Arjun Panditrao: in Nutshell
- Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
- Expert Evidence and Appreciation of Evidence
- How to Contradict a Witness under Sec. 145, Evidence Act
- Rules on Burden of proof and Adverse Inference
- Presumptions on Documents and Truth of its Contents
- Best Evidence Rule in Indian Law
- Sec. 65B, Evidence Act: Certificate for Computer Output
- Notary-Attested Documents: Presumption, Rebuttable
- Significance of Scientific Evidence in Judicial Process
- Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
- Presumptions on Registered Documents & Collateral Purpose
- Substantive Documents, and Documents used for Refreshing Memory and Contradicting Witnesses
- Polygraphy, Narco Analysis and Brain Mapping Tests in Criminal Investigation
- Why No Reservation to Muslim and Christian SCs/STs (Dalits)? What are the Counter Arguments?
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- Secularism and Art. 25 & 26 of the Indian Constitution
- Judicial & Legislative Activism in India: Principles and Instances
- Maratha Backward Community Reservation Case: Supreme Court Fixed Upper Limit at 50%.
- Separation Of Powers: Who Wins the Race – Legislature, Executive or Judiciary ?
- ‘Is Ban on Muslim Women to Enter Mosques, Unconstitutional’ Stands Tagged-on with Sabarimala Revision-Reference Matter
- Is Excommunication of Parsi Women for Marrying Outside, Unconstitutional
- Article 370: Is There Little Chance for Supreme Court Interference
- M. Siddiq Vs. Mahant Suresh Das –Pragmatic Verdict on Ayodhya Disputes
- Kesavananda Bharati Case: Effect and Outcome – Never Ending Controversy
- CAA Challenge: Divergent Views
- Secularism & Freedom of Religion in Indian Panorama
- Can Legislature Overpower Court Decisions by an Enactment?
- ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Contract Act and other Civil Laws
- Forfeiture of Earnest Money and Reasonable Compensation
- Who has to fix Damages in Tort and Contract?
- What is Easement? Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
- What is “period ending within two years next before the institution of the suit” in Easement by Prescription?
- Is the Basis of Every Easement, Theoretically, a Grant
- Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
- Village Pathways and Right to Bury are not Easements.
- Custom & Customary Easements in Indian Law
- ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition
- How to Sue Societies, Clubs and Companies
- Court’s Jurisdiction to Interfere in the Internal Affairs of a Club or Society
- Public & Private Trusts in India
- Legal Personality of Trustees and Office Bearers of Societies
- Incidents of Trust in Clubs and Societies.
- Management of Societies and Clubs, And Powers of General Body and Governing Body
- Court Interference in Election Process
- What is Trust in Indian Law?
- Vesting of Property in Societies and Clubs
- Vesting of Property in Trusts
- Clubs and Societies, Bye Laws Fundamental
- Juristic Personality of Societies and Clubs
- Societies and Branches
- Effect of Registration of Societies and Incorporation of Clubs
- Clubs and Societies: General Features
- Indian Law of Trusts Does Not Accept Salmond, as to Dual Ownership.
Explanatory and much to study. Haats off to you sir
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