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Synopsis

The Supreme Court has said that a title suit should not fail solely on the grounds that it seeks only an injunction, without a main relief for declaration, provided the defendants do not dispute the plaintiffs' title.

A bench of Justices J B Pardiwala and R Mahadevan set aside the Orissa High Court's judgment of 2022 in a regular second appeal filed by the original plaintiffs. The High Court had then allowed the second appeal filed by the respondents herein (original defendants) and thereby dismissed the suit filed by the plaintiffs seeking permanent injunction.

"We are of the view that the High Court has not dealt the second appeal in accordance with law and has failed to consider relevant vital issues affecting the rights of the parties to the litigation," the bench said.

The plaintiffs instituted a title suit seeking a direction that the defendant should be perpetually injuncted not to enter upon the suit land and not to interfere with the possession of the plaintiff over the suit land, among others.

The title suit ultimately came to be allowed. The trial court passed a decree.

The defendants preferred a regular first appeal before the district judge, Jajpur, which came to be dismissed thereby affirming the judgment and decree passed by the trial court.

The defendants thereafter went before the High Court by way of a second appeal under Section 100 of the Civil Procedure Code.

The High Court allowed the second appeal thereby setting aside the judgment and decree passed by the trial court as well as the judgment and order passed by the first appellate court.

After hearing the counsel for the parties, the bench said, "We take notice of the fact that the only ground that weighed with the High Court in allowing the second appeal and thereby dismissing the suit of the plaintiffs is that the plaintiffs failed to pray for any declaration and their suit simpliciter for injunction according to the High Court could not be said to be maintainable."

In the entire impugned judgment of the High Court, the court said it did not find any discussion as regard the dispute relating to the title of the property.

When the counsel appearing for the respondents (original defendants) was confronted with this, he submitted that since the defendants were in possession, it was obligatory on the part of the appellants – herein as plaintiffs to pray for main relief seeking possession of the suit property, the bench pointed out.

"It appears that an absolutely new case is sought to be made out so far as the aspect of possession is concerned. The High Court has not said a word about who is in possession of the suit property," the bench said.

While setting aside the judgment and order passed by the High Court, the court remitted the matter back to the High Court for fresh consideration of the second appeal in accordance with law.

The court restored the second appeal to the original file of the High Court of Orissa at Cuttack.

"Let the second appeal now be decided by the High Court afresh in accordance with law within a period of three months from today," the bench said.

Case Title: Krushna Chandra Behera & Ors Vs Narayan Nayak & Ors