The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No.37 of 2010 [In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908.] Thabira Rout and Others …. Appellants -Versus- Nuadei Gahir and Another …. Respondents Advocate(s) appeared in this case: For the Appellants For Respondents : : Mr. A.P. Bose, Advocate Mr. M.K. Panda, Advocate CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 16th May, 2025 SASHIKANTA MISHRA, J. This is an appeal filed by the defendants against a confirming judgment. The suit filed by the plaintiffs for permanent injunction being decreed, was confirmed in First Appeal filed by the defendants. Page 1 of 15 2.
Facts
For convenience, the parties are referred to as per their respective status before the Trial Court. 3. The case of the plaintiffs’ is that they and defendants are the descendants of the common ancestor namely, Mahadeb. The plaintiffs filed the suit for permanent injunction against the defendants in respect of ‘B’ Schedule property. Their ancestors had a water reservoir for irrigation purposes known as ‘Ratikata’. They had another tank known as ‘Gahir Bandh’. The land covered by the reservoir is described under Schedule ‘A’ and the suit property is part of the said ‘A’ Schedule property and described under ‘B’ Schedule. It is the further case of the plaintiffs that there was an amicable settlement between the parties in the year 1979, in respect of the suit land pursuant to which the defendant Nos. 8 and 9 were allotted ‰ share, the plaintiffs were allotted 1/4th share and the defendant Nos.1 to 7 were also allotted 1/4th share from the ‘A’ Schedule property. The plaintiffs’ share is described as ‘B’ Schedule property. In 1981, the parties executed documents (Kararnamas) acknowledging the Page 2 of 15 aforesaid partition. The defendant Nos. 1 to 7 executed Kararnama on 09.09.1981 in favour of Ganda Gahir, father of the Plaintiffs. In 1989, when plaintiff No.1 wanted to construct house over the suit land he was obstructed by defendant Nos.1 to 7. Hence, the suit. 4. Defendant Nos.1 to 7 contested the suit by filing written statement refuting the claim of the plaintiff. Their specific case was that the plaintiffs and their forefathers are not the members of the joint family of the common ancestor Mahadeb and are strangers to the family. As such, they have no right, title, and interest or possession in respect of ‘B’ Schedule land. Further, there was no partition of the ‘A’ Schedule properties at any point of time and the property still remains joint. The suit property was divided into two parts on 09.09.1981, whereby one part was allotted to the share of defendant Nos.8 and 9 and the other part to defendant Nos.1 to 7. 5. Defendant Nos.8 and 9 however, filed their written statement entirely admitting the claim of the plaintiff. Page 3 of 15 6. Basing on the rival pleadings, the Trial Court framed eight issues for determination, out of which the issues relating to title of the plaintiffs and his possession being vital were taken up for consideration. Basing on the oral and documentary evidence adduced by the parties and particularly, the evidence of PW-2 and the documents acknowledging the partition (Exts-3 & 4) as well as the admission of partition on 09.09.1981 by defendant Nos.1 to 7, the Trial Court accepted the claim of partition and on such basis held that the plaintiffs had right, title and interest in respect of the Schedule ‘B’ property and were also in possession. On such finding, the suit was decreed. 7. Defendant Nos.1 to 5 carried the matter in appeal. Specific grounds were raised to challenge the findings of the Trial Court. The First Appellate Court however, re-
Legal Reasoning
some apparent defect to his title or when some prima facie right of a third party over the property is shown. Page 13 of 15 In the instant case, the entire case of the defendant rests on the plea that the plaintiffs and his forefathers were not members of the family of the common ancestors, which was found to be incorrect. Secondly, the defendants took a plea that there had been no partition of the property yet both the Courts below found that they had implicitly admitted the fact of partition subsequently, on 09.09.1981 as per the Kararnama executed on 09.09.1981. 17. The plaintiffs’ claim of title is otherwise fortified by the admission of other defendants. Therefore, mere dispute raised with regard to title for the sake of it, without prima facie showing a basis, cannot be considered as valid dispute capable of creating a cloud over the title of the plaintiff. Furthermore, both the Courts below found the plaintiffs to be in possession over the suit land. Under such circumstances, the suit cannot be said to be bad for not including the prayer for declaration of title. The argument advanced by Mr. Bose cannot, therefore, be accepted. As regards the findings of the trial Court as confirmed by the First Appellate Court regarding prior Page 14 of 15 partition, the same being firstly, a pure question of fact is not required to be gone into and secondly, it has not been demonstrated that such finding is perverse or such that no prudent person would arrive at. The most significant thing to be noted is the admission of the contesting defendants as well as their failure to cross-examine PW.2, who being the oldest man of the family as well as a shareholder was certainly the most vital witness. 18. Thus, from the conspectus of the analysis of facts, law and the discussion made thereon, this Court finds no merit in the contentions raised by the appellants so as to be persuaded to interfere with the findings of the Courts below. 19.
Arguments
appreciated the evidence in light of the contentions raised but did not find any reason to disturb the findings of the Trial Court. The appeal was thus dismissed. Page 4 of 15 8. Being further aggrieved, defendant Nos.1 to 5 have preferred the present appeal, which was admitted on the following substantial questions of law: - (i) Whether the learned Courts below are correct in decreeing the suit filed by the plaintiffs for injunction simplicitor when the plaintiffs’ title was disputed and the plaintiff has not sought for any consequential reliefs? (ii) Whether the suit for permanent injunction in the facts of the case without seeking any consequential relief was maintainable? (iii) Whether the learned lower Appellate Court has committed an illegality in not assigning any reason as to why it agrees with the findings of the learned trial Court while confirming the judgment and decree passed by the Trial Court? 9. Heard Mr. A.P. Bose, learned counsel for the defendant Nos.1 to 5-Appellants and Mr. N.K. Panda, learned counsel appearing for plaintiff-respondents. 10. Mr. Bose would argue that both the Courts below have committed gross illegality in entertaining the Page 5 of 15 suit of the plaintiffs, which was for injunction simiplicitor without claiming declaration of title even though, his title was seriously disputed by the contesting defendants. Mr. Bose further argues that reliance on the so called Kararnamas by the Courts below as being proof of partition is entirely misconceived and contrary to law. Mr. Bose also argues that the First Appellate Court committed manifest error in not framing specific points for determination as required under Order 41 Rule 31 of CPC and did not discuss the oral and documentary evidence at all. 11. Mr. Panda, on the other hand, argues that the Trial Court relied upon the evidence of PW-2, Jairam Gahir, who apart from being a 50% shareholder is also the oldest member of the family. He was not cross-examined by defendant Nos.1 to 7. Therefore, his evidence is unshakable. Similarly, other witnesses like PW-1 were examined, who had taken lease of Gahir Bandh from the father of the plaintiffs and contesting defendants. Moreover, the documents acknowledging the partition Page 6 of 15 (Exts-3 and 4) were admitted into evidence without any objection. 12. The Trial Court further relied upon the certified copy of Dewar Settlement (Ext-6) indicating the separate possession of the different branches of the family of the common ancestor. On the other grounds raised by Mr. Bose, Mr. Panda would argue that the law is well settled that where the plaintiff is in possession and there is no acceptable dispute to his title, he can claim the relief of injunction simplicitor without claiming title. As regards non-compliance of the provision of Order 41 Rule 31 of CPC, Mr. Panda would argue that despite not framing specific points the First Appellate Court specifically took note of the grounds raised by the defendant and held that the same are not sustainable vis-(cid:224)-vis the findings of the Trial Court. 13. This Court is of the view that though, a specific question of law relating to non-compliance of Order 41 Rule 31 of CPC has not been framed, yet the same being a Page 7 of 15 point of law needs to be considered. The provision under Order 41 Rule 31 of CPC reads as follows: “Order 41 Rule 31 CPC Contents, date and signature of judgment – The judgment of the Appellate court shall be in writing and shall state- (a) the points for determination; (b) The decision thereon; (c) The reasons for the decision; and (d) Where the decree appealed from is reversed and varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.” It has been held in a series of judgments that the provision is ordinarily required to be followed mandatorily but then mere non-compliance cannot always be fatal to the judgment rendering it void, if there has been substantial compliance of the provision otherwise. In the case of J. Amalorpavam and Others v. R.C. Bioces of Madurai and Others (2006) 3 SCC 224, the Supreme Court held as follows:- 7. The question whether in a particular case there has been a substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non- compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate Court is in a position to ascertain the findings of the lower appellate Court. It is no doubt Page 8 of 15 desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate Court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the Rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the for Court on determination and also litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of Second Appeal conferred by Section 100 CPC.” rival contentions which arise to provide the (Emphasis added) 14. In the instant case, it is seen that the First Appellate Court after reciting the facts of the case and the issues framed by the Trial Court, enumerated the grounds of challenge of the defendant Nos.1 to 5. As many as eleven such grounds were noted. Keeping those grounds in perspective, coupled with the arguments advanced by the Page 9 of 15 parties, the First Appellate Court also referred to the oral and documentary evidence relied upon by the Trial Court. Having done so, the First Appellate Court found no reason to interfere with the judgment of the Trial Court. After perusing the impugned judgment, this Court is satisfied that the provision of Order 41 Rule 31 was substantially complied with as nothing has been demonstrated as to how non-framing of the specific points of determination has prejudicially affected the case of the defendant- appellants. 15. Coming to the main ground of the challenge posed by the defendant-appellants i.e. maintainability of the suit for injunction simplicitor without claiming declaration of title, this Court would firstly, take note of the fact that though the defendants had taken such a plea in their written statement filed in the suit yet no such issue was framed by the trial Court specifically to answer the same. However, in the first appeal filed by the defendants surprisingly, the above ground was never taken as is evident from the enumeration of eleven specific Page 10 of 15 grounds by the First Appellate Court in the impugned judgment. Be that as it may, the present appeal having been admitted on the substantial question of law relating to this issue, this Court deems it proper to examine the same for whatever is its worth. Law in this regard is fairly well settled that a suit for injunction without claiming title is maintainable, if the plaintiff is in possession and there is no dispute as regards his title. Reference may be made in this context to be oft-quoted judgment of the Supreme Court in the case of Anatula Sudhakar v. P. Buchi Reddy and others 2009 (II) OLR SC 388, wherein the Supreme Court culled out the principles as to when a mere suit for permanent injunction will lie and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief. The principles were enumerated under paragraphs 11, 12 and 13 of the above judgment which are reproduced below:- “11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly. Page 11 of 15 11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. 11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. 12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff’s title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person’s title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to shown. An action for declaration is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff’s title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses Page 12 of 15 in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff’s title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title. 13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff’s possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally. 16. Thus, prayer for declaration will be necessary only if the denial of title of the plaintiff raises a cloud on his title. Further, a cloud is said to be raised when there is
Decision
In the result, the appeal, being devoid of merit is therefore, dismissed. There shall be no order as to costs. …………..……………. Sashikanta Mishra Judge Orissa High Court, Cuttack. The 16th of May,2025/P. Ghadai, Jr. Steno Signature Not Verified Digitally Signed Signed by: PUSPANJALI GHADAI Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 16-May-2025 13:10:08 Page 15 of 15