DR. Y. SRINIVASA RAO,
M.A (English Lit.)., B.Ed., LL.M., Ph.D in Law of Torts.
The terms “tribunal”, “court” and the “civil court” have been used in CPC differently. All “courts” are “tribunals” but all “tribunals” are not “courts”. Similarly all “civil courts” are “courts” but all “courts” are not “civil courts.” Civil court is a body established by law for administration of justice. Different kinds of law exist constituting different kinds of courts. Which courts would come within the definition of the civil court has been laid down under CPC itself. Civil courts are constituted under statutes, like the Bengal, Agra, Assam Civil Courts Act, 1887. Pecuniary and territorial jurisdiction of the civil courts are fixed in terms thereof. Jurisdiction to determine subject-matter of suit, however, emanates from Section 9 CPC. Civil courts contemplated under Section 9 of CPC find mention in Sections 4 and 5 thereof. Some suits may lie before the Revenue Court, some suits may lie before the Presidency Small Cause Courts. CPCitself lays down that the Revenue Courts would not be courts subordinate to the High Court. The word “civil court” vis-à-vis a court must be construed having regard to the text and context of the statute. (Ref. Nahar Industrial Enterprises Ltd.v. Hong Kong and Shanghai Banking Corpn., (2009) 8 SCC 646.). ‘Ubi jus, ibi remedium’ which means ‘Where there is a right there is a remedy’. Raj Kumar v. Sardari Lal, (2004) 2 SCC 601. Ordinarily ‘ Right to sue’ means the right to seek relief by means of legal proceedings. Generally, the right to sue accrues only when the cause of action arises, that is, the right to prosecute to obtain relief by legal means as was held in State of Punjab v. Gurdev Singh, AIR 1991 SC 2219. It is settled law that denial for want of knowledge is no denial at all.
The Government, in summary proceedings, cannot unilaterally decide its own title over the property, and their remedy is only to approach the competent Civil Court seeking declaration of title, as was held in Digivinti Subramanyam Reddy Vs. State of Andhra Pradesh rep. by its Principal Secretary, Revenue Department, Velagapudi, Amaravathi, Guntur Dist. and others, 2022 (2) ALT 475. Plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law, as was held in K. Hari Kishan and others Vs. Banda Balram and another , 2022 (3) ALT 411 (DB). In civil law, The profounder of the Will must remove the suspicious circumstances surrounding/shrouding the Will. Although registration of Will by the testator is a strong circumstance to support the genuineness of the will, however, it does not by itself be sufficient to dispel of the suspicion as was held in Chandra Yugandhar Vs. Maalampati Annapurna, 2022 (3) ALT 40. The appellants are claiming to be in possession of the suit lands as tenants, they cannot maintain the suit for declaration of title by way of adverse possession, as the very concept of adverse possession is to be in possession of property adverse and hostile to the interest of the real owner., See. Patti@ Begari Ramaiah (died) per LRs. and others Vs. State of A.P., rep. by the District Collector, Ranga Reddy District and others, 2022 (2) ALT 737 (DB).
Suit for permanent injunction without prayer for declaration : Maintainability.
A suit for mere injunction without seeking a prayer for declartion of title is maintainable as persons in possession of property can resist interference with the said property on the strength of possession alone. (See. Paras 23 and 26), Ediga Ranganayakulu (Died) per L.Rs. Vs. B. Venkatesu and others, 2015 (3) ALT 481.
In Ananthula Sudhakar vs. P. Buchi Reddy and others, Appeal (civil) 6191 of 2001, Dated 25-03-2008, it was held by the Apex Court that To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff’s title and he does not have possession, 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 possession with a consequential injunction. Where there is merely an interference with 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 injunction 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 Thevar (supra)]. 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, instead of 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 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.
As was held in Mir Fazle Ali Nasiri and another Vs. State of A.P., rep. by its Secretary, Revenue and others, 2007 (3) ALT 187, equitable relief of injunction cannot be granted if plaintiff approaches court by suppressing material fact as to title to suit property, without seeking relief of declaration of title.
Law does not recognize possession of a trespasser and it is a wrongful act as was pointed out in T. Kamalanabha Reddy and others Vs. G. Chandrasekhar Reddy and another, 2021 (6) ALT 325.
Any person approaching this Court with unclean hands has to be non-suited on the sole ground of concealment or suppression of material fact, Vivekananda Nagar Colony Plot and House Owners Welfare Association Vs. State of Telangana and others, 2021 (3) ALT 62.
It is a common principle of law that even trespasser, who is in established possession of the property could obtain injunction. However, the matter would be different, if the plaintiff himself elaborates in the plaint about title dispute and fails to make a prayer for declaration of title along with injunction relief, T A. Subramanian and another Vs. R. Pannerselvam, 2021 (2) ALT (SC) 31 (FB). In this ruling, the Full Bench further held that High Court has rightly observed that the principle that plaintiff cannot seek for a bare permanent injunction without seeking a prayer for declaration is not applicable to the facts of the present case.
The Hon’ble Division Bench in Mantri Developers Private Limited Vs. B. Venkateshwar Rao and others, 2013 (6) ALT 443 (DB), it was held that temporary injunction to restrain the defendant from entering into contract with others in respect of suit property cannot be claimed and granted in a suit filed for mere perpetual injunction without seeking the relief of specific performance of contract.(Para 14).
Issue of notice under Section 126 of A.P. Co-operative Societies Act is not mandatory before filing a suit for declaration of title and injunction against Society by a party who is not a member of Society, claiming title based on adverse possession. (Para 10). See. Yempalakula Vijaya Lakshmi v. Cuddapah District NGO’s Co-op Building Society Ltd., and others, 2011 (1) ALT 52.
Right to use a passage can be either on the strength of any legal rights or on the basis of easementary rights – Either way a declaration as to the right to use the passage must be sought and relief of injunction be claimed only as a corollary.(Para 8). See. L. Narasimha Reddy v. L. Yella Reddy, 2010 (5) ALT 784.
Suit for possession without prayer for declaration of title – Maintainability:
In Kurella Naga Druva Yudaya Bhaskara Rao v. Galla Janikamma ((2008) 15 SCC 150), wherein Supreme Court has examined the question of maintainability of suit for possession without prayer for declaration of title Court has referred to its earlier decision in Ananthula Sudhakar v. P. Buchi Reddy ((2008) 4 SCC 594). See. Muddasani Venkata Narsaiah (D) Th. Lrs. Vs. Muddasani Sarojana, 2016 (1) ALT (REV.) (SC) 169 (D.B). In Anathula Sudhakar v. P. Buchi Reddy, wherein the plaintiff had purchased the suit land under registered sale deed dated 10.4.1957 and the defendant did not claim the title with reference to any document but claimed to have perfected title by adverse possession. It was held by this Court that the said plea did not prima facie put any cloud over the plaintiff’s title calling him to file suit for declaration of title. Unless there is serious cloud over the title of the plaintiff there is no need to file suit for declaration of title. The suit for possession was maintainable.
Equitable relief of injunction cannot be granted if plaintiff approaches court by suppressing material fact as to title to suit property, without seeking relief of declaration of title.(Para 4), as was held in Attada Gangu Naidu and another Vs. Deepala Chandra Mouli and others, 2011 (6) ALT 585.
Unless cause of action and relief claimed in second suit are the same as those claimed in earlier suit which was withdrawn, subsequent suit cannot be held to be barred either under Order 2 Rule 2 or Order 23 Rule 1, CPC.(2) Limitation for filing suit for possession. Suit for declaration of title and possession of immovable property filed based on title within 12 years of denial of title for the first time cannot be held to be barred by limitation. See. Kasarapu Sujatha and another v. Veera Velli Veera Somaiah , 2008 (4) ALT 82.
Suit for declaration – Maintainability:
The Supreme Court of India in Gian Kaur Vs. Raghubir Singh, 2011 (4) ALT (D.N) (SC) 15.4. it was held that: ‘It appears, prima facie, that apart from making a prayer for declaration there is also a consequential prayer for a decree for permanent injunction restraining the defendant from alienating the suit property or interfering in peaceful possession of plaintiff therein. 9. There is an alternative prayer for decree for possession also. 10. From the prayers made in the plaint, it is clear that the consequential relief of permanent injunction was prayed and before the Trial Court the fourth issue relating to the maintainability of the suit in the present form was raised but the same was not pressed by the defendant nor was any such question raised before the First Appellate Court. 11. In that view of the matter, the finding of the High Court that the suit is merely for declaration and is not maintainable under Section 34 of the Specific Relief Act cannot be sustained. The High Court’s reliance on a decision of this Court in Ram Saran (supra) is also not proper. 12. From the decision in Ram Saran (supra), it is clear that in that suit the plaintiff merely claimed a declaration that they are the owners of the property and they have not sought for possession of the said properties.(see para 4) 13. For the reasons aforesaid, this Court holds that the suit is not hit by Section 34 of the Specific Relief Act. The decision in Ram Saran (supra) was rendered on totally different facts and cannot be applied to the present case.’
Suit simpliciter for declaration and not for possession maintainability. High Court, while entertaining second appeal, held that suit simpliciter for declaration is not maintainable under Section 34 of the Act and plaintiff should have filed suit for possession. Appeal Held, apart from making a prayer for declaration, there is also a consequential prayer for a decree for permanent injunction restraining defendant from alienating suit property or interfering in peaceful possession of plaintiff There is an alternative prayer for decree for possession also Suit is not hit by Section 34 of the Act Hence, the finding of High Court that suit is merely for declaration and is not maintainable under Section 34 of the Act, held, not sustainable Set aside Appeal allowed. See. Mehmood Rahmat Ullah Khan and another Vs. Niyaz Ahmad Khan, 2011 (2) SCJ 917 (DB).
In this case, the document as such is not void since it was executed by the plaintiff but the challenge is on the ground that it was not out of free will and it was by fraud and coercion. The suit was filed by the plaintiff for a declaration of his title to the property and injunction. It is needless to say that while considering the relief in any suit the court has to consider the allegations in the plaint and grant relief. If in substance, the allegations in the plaint clearly goes to show that as to how the documents were obtained and not enforceable being vitiated and a declaration is sought for title, the court has to take into consideration such allegations while granting the relief and a declaration if granted by the court is substantially a declaration about the binding nature and validity of the sale transactions. 13. It cannot be lost sight that a suit for declaration of title to be decided by a Court takes into its fold, consideration of several factors as to how the plaintiff is entitled for declaration of title. In such cases the plea of the defendants about the validity and binding nature and enforceability of any document defeating the title of the plaintiff have also to be considered. In such cases, the court naturally views the evidence on both sides leaving apart the frame of the suit. Therefore, the lower court found that though specific cancellation is not asked, the declaration of title is as good as a relief of cancellation of the sale deeds and found that the suit is not bad. 14. The only impediment in cases of voidable document is the question of limitation and in this case there is no such problem since the suit is filed within three (3) years from the date of the alleged execution of the sale deeds. Therefore, we hold that the suit for a declaration is more exhaustive to determine the title or validity of the transactions and when the relief of declaration of title is granted, it is in substance ignoring or setting aside the transactions under dispute though no separate prayer is made for cancellation of the documents. Many a time it so happens in a suit for declaration of title apart from challenges to the alienation against some defendants, there may be connected issues to be decided different to the other parties to the suit. Therefore, the suit for declaration of title is more comprehensive and the objections sought to be raised about the maintainability does not find any strength. See. Suraneni Lakshmi v. B. Venkata Durga Rao and another, 2011 (2) ALT 501 (DB).
In Jharkhand State Housing Board Vs. Didar Singh and another, 2018 (1) ALT (REV.) (S.C) 218 (D.B), it was held that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration.
Suit for declaration, possession and injunction. Respondent claims appellant to be trespasser – Main defence is permission of Competent Authority is mandatorily required for maintainability of suit. Holding “trespasser” is included in definition of “occupier”, in Section 2(e)(v), Apex Court held permission is mandatory as per provisions of the Act, as was observed by the Apex Court in Laxmi Ram Pawar Vs. Sitabai Balu Dhotre and another, 2011 (4) ALT (D.N) (SC) 24.1 (DB.
A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction. Jsee. harkhand State Housing Board Vs. Didar Singh and another, 2018 (1) ALT (REV.) (S.C) 218 (D.B)
As seen from dicta laid down in Chhabi Dushadh v. Buhuneshwar Pandey, AIR 2004 Jharkhand 92, mere declaration is also maintainable. In that case the prayer in the suit was for a declaration that the suit schedule properties were under the right of plaintiff by virtue of the fact that they are occupancy raiyati lands. On facts it was found that plaintiff was found in possession of those properties and the flow of title was proved. Therefore the suit for mere declaration was found sufficient and there was no further need found on facts to seek for any consequential relief. Therefore referring to the facts of that case, the Hon’ble Jharkhand High Court held that there was no violation of Section 34 of Specific Releif Act.
In Koru Ramesh Vs. District Collector and others, 2023 (1) ALT 686, it was held that If the plaintiff thinks that a bare declaration would serve the purpose it is for him to satisfy the Court and if he fails to satisfy, the Court could not grant a relief that is not in accordance with law. In fact Section 34 of The Specific Relief Act, 1963 employes the word “any legal character”. The word ‘legal’ before the word “character” is not without significance. They mean the status in the society of the person seeking declaration. For instance, whether a person is a legitimate son of another, whether a person is the adoptive father of another etc. Birth on a particular date does not clothe a person with any status. Date of birth is only an event in a person’s life. While it is possible to contemplate that serious consequences might flow from such date of birth, in substance it would always amount to asking for the declaration of an event. It is quite possible to say that the declaration sought for is not of a legal character. As long as the appellant did not ask for any consequential relief on the strength of the correct date of birth, a mere declaration of his date of birth remains a question of academics and nothing beyond. The decision of the first appellate Court that the suit was barred by time has not been mentioned in the memorandum of grounds of appeal and no arguments are advanced on the aspect of limitation before this Court. Thus that finding became final. It is for all these reasons this Court finds that there is absolutely no merit in this appeal.
Inam lands: Every inamdar shall be entitled to be registered as an occupant of all inam lands. Under Section 47 of the Act, 1950, no permanent alienation and no other transfer of agricultural land would be valid unless it has been made with the previous sanction of the Collector. It is not for the Board of Revenue to express any opinion about the nature of the land because it has no jurisdiction under the Act. No inam land shall be liable to attachment or sale in execution of any decree or other process of any Court and any attachment existing on the date of vesting. See. Kottakapu Sai Reddy Vs. Joint Collector-II-cum-Appellate Authority under A.P., 2022 (1) ALT 667 (DB).
Suit for declaration and recovery of possession:-
In the suit for declaration of 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. T A. Subramanian and another Vs. R. Pannerselvam, 2021 (2) ALT (SC) 31 (FB). 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 Co-op. Housing Society Limited, 2014 ALT (Rev.) 28 (SC) = (2014) 2 SCC 269, it was held as under ? SCC p.275, para 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.””
In a suit for declaration and recovery of possession, burden always lies on the plaintiff to make out and establish clear case for grant of relief. In a suit for declaration of title and possession, the plaintiff could succeed only on the strength of his/her own title and that could be done only by adducing proper and cogent evidence. See. Paturu Sundaraiah Vs. Suri Ranganayakamma and another, 2022 (2) ALT 469. The dispute relating to title of the property, which is purely a civil dispute, cannot be decided in a Writ Petition Therefore, the petitioner has to work out his remedy if at all he got any grievance in respect of the said property in a competent civil Court, as was pointed out in Chintala Ram Babu Vs. State of A.P. rep. by Principal Secretary, MA and UD, Amaravati and another, 2022 (2) ALT 17.
Pasupu Kumkuma – Gift: When the immoveable property is transferred by way of gift, it must be by way of registered document, Bhavanam Ademma Vs. State of Andhra Pradesh, rep. by its Authorized Officer Land Reforms Tribunal, Guntur and others, 2021 (2) alt 76. It is not permissible to give away oral gifts by the way of Pasupu Kumkuma. As per Section 123 of Transfer of Property Act, a document of gift of immoveable property is required to be registered and attested by two witnesses. Pasupu Kumkuma gift orally cannot be done, it may be done by way of document in compliance of Stamp and Registration Laws.
When the title of an occupant is disputed before the Collector or any Revenue Authorities, the appropriate course would be to refer the parties to competent Civil Court as was held in Yerrabothu Rangamma Vs. District Collector, Nalgonda and others, 2023 (1) ALT 370. When the plaintiff approached the Court for declaration of title by adverse possession, it is for him to establish his case as was observed in M. Narasimha Reddy Vs. T.L. Badraiah and others, 2022 (4) ALT 599.
Shashikanth and another Vs. P. Jangaiah, 2022 (5) ALT 456, Bijivemula Venkata Subba Reddy v. Jangam Satya Babu, 2009 (2) ALT 689 = 2010 (6) RCR (Civil) 364, on the judgments of Hon’ble Supreme Court in K.S.Bhoopathy and others v. Kokila and others, AIR 2000 SC 2132, in Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and others, AIR 1987 SC 88 and in M/s.Upadhyay & Co., v. State of U.P. and others, AIR 1999 SC 509.
Plaintiff cannot in any manner rely on the latches or weakness in the case set up by the defendants. The entries in revenue records cannot make out right and title to the lands in question. In a title suit, the burden is always on the appellants-plaintiffs to establish their claim. See. M. Venkateswara Rao and another Vs. K. Koteswara Rao and others, 2021 (4) ALT 475.
When a relief of declaration along with the consequential relief is more comprehensive than what is contemplated in terms of Section 31 of the Specific Relief Act, even at the instance of the signattory to a registered document, suit of this nature is maintainable. It is not barred. Nor Section 31 of the Specific Relief Act prohibits such approach whoever be the plaintiff, directly or by implication. Therefore, frame of suit as such cannot be found fault with.See. Gogineni Venkateswara Rao Vs. Gogineni Raghavaiah (died) and others, 2022 (1) ALT 14.
The period of limitation – Court-fee, for different suits:
1. Suit for declaration:- For a suit for declaration, the period of limitation is three (3) years as seen from the Article 58 of the Indian Limitation Act and the court-fee is to be paid section 24 (b) of the A.P.C.F & S.V.Act. In Gogineni Venkateswara Rao Vs. Gogineni Raghavaiah (died) and others, 2022 (1) ALT 14, it was held that two new substantial questions of law relating to bar of limitation and maintainability of the suit for declaration, cannot be raised in this second appeal for the first time.
2. Suit for declaration and recovery of possession:- For a suit for declaration and recovery of possession, the period of limitation is twelve (12) years as seen from the Article 65 of the Indian Limitation Act and the court-fee is to be paid section 24 (1) of the A.P.C.F & S.V.Act.
3. Suit for Specific Performance of contract:– For a suit for specific performance of contract, the period of limitation is three (3) years as seen from the Article 54 of the Indian Limitation Act and the court-fee is to be paid section 39 (a) of the A.P.C.F & S.V.Act.
4. Suit for partition:- For a suit for partition, the period of limitation is twelve (12) years as seen from the Article 110 of the Indian Limitation Act and the court-fee is to be paid section 34 (2) or 34 (1), as the case may be, of the A.P.C.F & S.V.Act.
5. Suit for permanent injunction:- For a suit for permanent injunction, the period of limitation is three (3) years as seen from the Article 113 of the Indian Limitation Act and the court-fee is to be paid section 20 (c) of the A.P.C.F & S.V.Act.
Civil court is a body established by law for administration of justice. Different kinds of law exist constituting different kinds of courts. It is well settled by catena of Judgments of the Hon’ble Supreme Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction. It is to be remembered that Suits filed prior to amendment to Order 6 Rule 17, CPC made by Act 22 of 2002 are not governed by proviso introduced by such amendment. (T. Venkata Ravamma and others Vs. Karnati Lakshmamma and another, 2015 (5) ALT 184). Mere possession however long does not necessarily mean that it is adverse to the true owner Having pleaded title, defendants cannot plead adverse possession as both the pleas are mutually inconsistent Defence based on adverse possession does not sustain unless such plea was pleaded and proved as required under law. It is to be noted that as was observed in K. Janga Reddy v. G. Srinivas and others, 2007 (6) ALT 383, decision on maintainability of suit is different from taking a decision whether a party has made out a prima facie case for grant of temporary injunction sought pending main suit. Further more, there is no statutory bar to file an independent suit even if C.P.C. provides for filing a counter-claim (Ref. Sakina Bee’s case, 2007 (4) ALT 65). Equitable relief of injunction cannot be granted if plaintiff approaches court by suppressing material fact as to title to suit property, without seeking relief of declaration of title. The right to sue accrues only when the cause of action arises, that is, the right to prosecute to obtain relief by legal means. It is settled law that denial for want of knowledge is no denial at all.