Supreme Court: Property dispute with construction requires suit for possession, not just injunction

The Supreme Court has said, where there is a construction raised on the disputed property alleged to be owned by the plaintiffs, the appropriate and efficacious remedy available to them was to institute a suit for possession along with a consequential relief of injunction, and not a suit for injunction simpliciter.

A bench of Justices Aravind Kumar and N Kotiswar Singh pointed out as per Section 41(h) of the Specific Relief Act, 1963, one of the statutory grounds for refusal of an injunction is the availability of an equally efficacious remedy. 

"This rule, being expressly prescribed by the statute, circumscribes the discretion of courts in granting injunctive relief where such an alternative remedy exists. There are, however, limited categories of cases where a suit for mandatory injunction, by itself, may constitute an equally efficacious remedy," the bench said.

As per facts of the matter, plaintiff Sanjay Paliwal and another, partners in Vaishali Builders, had purchased a parcel of land measuring 15 Biswa in District Haridwar, through a registered sale deed in 1992 from the previous owners, Laxminarayan Jha (zamindar/landholder) and Bashir Khan (cultivating tenant of Shreni-3).

The dispute arose when the defendant constructed a boundary wall along the pucca road.

The plaintiffs filed a suit before the competent court at Haridwar seeking a decree of mandatory injunction directing the defendant to remove the boundary wall.

The defendant Bharat Heavy Electricals Limited admitted only that its boundary wall had existed for about thirty years and meets the road on the west. It was asserted that the plaintiffs have no cause of action, and that the plaintiffs have neither possession nor any right over the disputed land, which has allegedly been within the defendant company’s territory for decades.

The defendant also disputed the plaintiffs’ title, contending that Laxminarayan Jha and Bashir Khan were neither owners nor cultivators of the land, and the alleged sale deed of 1992 is false.

The trial court held that the plaintiffs had successfully established their title and possession over the disputed land. It rejected the defendant’s claim that disputed land had been acquired by the State and was in the possession of the defendant company. 

On the issues relating to relief of mandatory injunction and bar under Sections 38 and 41 of the Specific Relief Act, the trial court found that plaintiffs’ right to access to public road was essential for the enjoyment and utility of their property. 

The Defendant company filed an appeal before the First Appellate Court, challenging the judgment and decree of the Trial Court which was dismissed in 2004 and confirmed the judgment and decree of the Trial Court.

By the impugned order, the High Court, however, set aside the judgment and decree of both the courts below and dismissed the suit filed by the plaintiffs.

While dealing with the question as to whether the suit was barred under Sections 38 and 41 of the Specific Relief Act, 1963, the High Court held that a suit seeking the relief of injunction, without claiming the consequential relief of possession, is barred by Section 41(h) of the said Act. 

The High Court observed that if a wall is constructed by the defendant over the disputed property claimed to be owned by the plaintiffs, such construction amounts to trespass resulting in dispossession of the plaintiffs from that portion of the property. 

In such circumstances, it held, the appropriate remedy available to the plaintiffs was to institute a suit for possession, in addition to or instead of seeking an injunction. With regard to the issue of ownership, the High Court held that although there existed a sale deed in favour of the plaintiffs and Laxminarayan possessed a transferable title, Bashir Khan, being a Maurusee Kashtkar (hereditary tenant), was not competent to convey valid title to the plaintiffs.

Having heard the counsel for the parties, the bench said, there exists a serious dispute concerning both title and possession, coupled with serious dispute about identity of the land in question viz. suit schedule property. 

The court pointed out, the question that arose was whether the plaintiffs had derived a valid and enforceable title from their predecessors-in-interest.

"Even assuming, arguendo, that the plaintiffs possess a valid title, the High Court has rightly held that where there is a construction raised on the disputed property alleged to be owned by the plaintiffs, the appropriate and efficacious remedy available to them was to institute a suit for possession along with a consequential relief of injunction, and not a suit for injunction simpliciter," the bench said.

The court opined the High Court has rightly held that the plaintiffs’ suit was barred under Section 41(h) of the Specific Relief Act, 1963, inasmuch as the plaintiffs failed to seek the relief of possession despite the existence of a cloud over possession of the disputed property. The suit for injunction simpliciter was, therefore, not maintainable.

"The High Court has further aptly observed that “it is strange” as to how a decree of mandatory injunction came to be granted by the trial court, and subsequently affirmed by the first appellate court, in the absence of any cogent proof regarding the exact location of the portion of land allegedly purchased by the plaintiffs," the bench said. 

The court futher found that High Court rightly noted that there were no measurements whatsoever of the disputed wall, either in the plaint map or in the judgment and decree passed by the trial court. 

"In the absence of such foundational evidence, the grant of a decree for mandatory injunction was wholly unsustainable and could not have been legally issued," the bench said.

The court held it is evident that, in the present case, the High Court, while exercising its jurisdiction under Section 100 of the Code of Civil Procedure, 1908, has rightly set aside the judgment and decree of the trial court as well as the confirming judgment of the first appellate court.

The High Court found that the concurrent findings recorded by the courts below were vitiated by serious errors of law, arising from a misapplication of settled legal principles and a failure to take into account material aspects having a direct bearing on the rights of the parties. Such errors gave rise to substantial questions of law, thereby justifying interference in second appeal, the bench said.

The court said, the Hith Court correctly concluded that the judgments of the courts below were legally unsustainable, inasmuch as the conclusions reached were perverse, contrary to the governing statutory framework, and incapable of being sustained on a proper appreciation of the law. Upon answering the substantial questions of law framed for consideration, the High Court exercised its corrective jurisdiction to set aside the impugned judgments and passed the consequential order dismissing the suit, the court noted. 

"We, therefore, find no reason to interfere with the exercise of power by the High Court under Section 100 of the Code of Civil Procedure, the same having been exercised lawfully and judiciously," the bench said, dismissing the appeal.

Case Title: Sanjay Paliwal And Another Vs Bharat Heavy Electricals Ltd Through its Executive Director decided by a bench of Justices Aravind Kumar and N Kotiswar Singh on January 15, 2026