Tirla Devi & Others v. Sukhbir & Another

The appellants/plaintiffs claim ownership over the suit property, Khasra No. 129, area 0.2650 hectares, 1 situated at Village Khijarpur Kalanjara, Tehsil and District Haridwar on the basis of a registered Will executed favour by their mother Smt. Chandrabalia. They allege respondents/ defendants were attempting to interfere with their peaceful possession, therefore, the appellants/plaintiffs filed O.S. No.357 of 2012 against the respondents /defendants seeking a decree of perpetual injunction.

3. Some undisputed facts of the case are that the suit property is an agricultural land, which originally belonged to Late Mool Chand; after death of Mool Chand, Dhoom Singh, being his son and legal heir, was recorded as Bhumidhar in revenue records; after death of Dhoom Singh, name of appellants/plaintiffs’ mother Smt. Chandrabalia got recorded in revenue records in PK11 in the year 1992; thereafter, on 09.12.2009, names of the present respondents/defendants (wife and son of Late Dhoom Singh) were mutated; this mutation was, however, later stayed on 24.12.2012, based on a restoration application filed by the appellants. It is also undisputed that on the date of institution of O.S. No.357 of 2012, names of respondents/defendants were recorded revenue records and the names 2 appellants/appellants, who are married daughter of Late Smt. Chandrabalia, were never recorded in the revenue records.

4. The facts, as narrated above, depicts that mutation proceedings are pending consideration with respect to recording the name of Smt. Chandrabaliya vis- à-vis defendant nos.1 and 2 whereas names of appellants /plaintiffs were never recorded in the revenue record. The appellants/plaintiffs are claiming their right and title over the suit property on the basis of a Will, executed by their mother Late Smt. Chandrabalia, and the said fact that whether the name of Late Smt. Chandrabalia was rightly recorded or not, in the revenue record, is still to be adjudicated.

5. The Learned Trial Court and the First Appellate Court, in view of the facts and circumstances of the case, concurrently held that since the land in question is agricultural in nature and the title is disputed, the civil court lacks jurisdiction to adjudicate the matter. Instead, the appropriate forum to determine the rights and title over the disputed property lies with the revenue court. It was further held that, as the parties are not recorded as Bhumidars over the disputed 3 property, it is mandatory for them to file a suit for declaration of title before the competent revenue authority.

6. The question that now arises for consideration before this Court is whether the concurrent findings recorded by the Trial Court and the First Appellate Court; holding that a suit simpliciter for perpetual injunction, filed by the appellants/plaintiffs, without seeking declaration of title, would be maintainable when there exists a cloud over the appellants/plaintiffs’ title to the suit property; are legally justified or not?

7. Learned counsel for the appellants/plaintiffs submits that appellants/plaintiffs are in possession over the suit property on the basis of a Will dated 02.05.2003 executed by their mother Late Smt. Chandrabaliya in their favour. It is the case of the appellants/plaintiffs that their mother Smt. Chandrabalia was in possession of the suit property as her son Dhoom Singh had died much prior to the Will executed in their favour and his family had also left the village, as such after the death of their mother on 26.02.2008, appellants/plaintiffs became the owner of the suit property. He, however, submits that 4 respondents/defendant nos.1 and 2 get their name mutated in revenue record on 09.12.2009, after death of Smt. Chandrabaliya, without getting the name of Smt. Chandrabalia deleted, which subsequently was stayed on restoration application appellants/plaintiffs. He, thus, contends that since the appellants/plaintiffs were in settled possession over the suit property, therefore, the suit for permanent injunction was maintainable before the Trial Court.

8. Per contra, learned counsel respondents/defendants submits that the original owner of the land was Late Mool Chand, and upon his death, name of Dhoom Singh, being his son, was duly recorded in the revenue records. He further submits that respondent/defendants nos. 1 and 2, being the son and legally wedded wife of Dhoom Singh, are the rightful title holders of the suit property. Learned counsel, therefore, contends that both the Trial Court and the First Appellate Court rightly appellants/plaintiffs must seek adjudication of their rights through a declaratory suit before the competent revenue court. It is also pointed out that the names of the 5 appellants/plaintiffs were never recorded in the revenue records, which is an undisputed finding of fact.

9. Heard learned counsel for the parties and perused the material available on file.

10. The Learned Trial Court and the First Appellate Court have recorded concurrent findings of fact that the is agricultural in nature, and appellants/plaintiffs, having no established title over the property, are required to have their title adjudicated by the competent revenue court. The issue as to whether a suit for permanent injunction would be maintainable in the absence of a declaration of title, particularly where there exists a cloud over the appellants/plaintiffs’ title, has been considered by the Hon’ble Supreme Court in T.V. Ramakrishna Reddy vs. M. Mallappa and another, (Civil Appeal No.5577 of 2021), wherein it was held as under:- “8. The short question that falls for consideration before us is: Whether the learned single judge of the High Court was right in holding that the suit simpliciter for permanent injunction without claiming declaration of title, as filed by the plaintiff, was not maintainable?

9. The issue is no more res integra. The position has been crystalised by this Court in the case of Anathula Sudhakar v. P. Buchi Reddy (dead) by L.Rs. and others in paragraph 21, which read thus: 6 “21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under: (a) Where a cloud is raised over the plaintiff's title and he does not have posses sion, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for posses sion with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for in- junction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu The var [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202] ). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, in stead of 7 deciding the issue in a suit for mere injunction. (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 straightforward, 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 cumber some 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 the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”

10. It could thus be seen that this Court in unequivocal terms has held that where the plaintiff's title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession. It has been clearly held that if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

11. No doubt, this Court has held that 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 straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. However, it has been held that such cases are the exception to the normal rule that question of title will not be decided in suits for injunction.” 8

11. This Court is of the considered opinion that the finding recorded by the Trial Court and the First Appellate Court filed by appellants/plaintiffs before the civil court for injunction, was not maintainable, does not give rise to any substantial question of law, warranting interference in second appeal.

12. Accordingly, the second appeal fails and is dismissed in limine. (Subhash Upadhyay, J.)

26.06.2025 Rajni RAJINI GUSAIN DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=97cfa6e4cbd49c07b876db48448 ac3701a9ae475a2547e4b7f1d9b1f17d013 42, postalCode=263001, st=UTTARAKHAND, serialNumber=8D039BC77BD1A2222B4DF 4FC80D4557562F95BEBA013F530616A15 8A0A878BD8, cn=RAJINI GUSAIN 9