VED PRAKASH GARGversusSMT SUNITA DAYAL

                                                     Reserved on 17.8.2026
                                                    Delivered on 14.09.2026

        HIGH COURT OF JUDICATURE AT ALLAHABAD
                   SECOND APPEAL No. - 834 of 2024

Ved Prakash Garg
                                                           …..Appellant(s)

                                 Versus

Smt Sunita Dayal
                                                         …..Respondent(s)


Counsel for Appellant(s)          : Rakesh Kumar Srivastava
Counsel for Respondent(s)         : Ashish Kumar Singh, Deepak Rana


Court No. - 7

            HON'BLE PIYUSH AGRAWAL, J.

1.    Heard Mr. Dileep Kumar Pandey, learned counsel for appellant
and Mr. Ashish Kumar Singh, learned counsel for the respondent.

2.    The present appeal has been filed against the judgement & decree
dated 22.8.2024/5.9.2024 passed by Additional District Judge, Court No.
10, Ghaziabad in Civil Appeal No. 6 of 2021 (Smt. Sunita Dayal Vs.
Vedprakash Garg) arising out of Original Suit No. 2773 of 2011.

3.    After hearing learned counsel for the parties, the present appeal
has been admitted vide order dated 11.4.2025 on the following
substantial question of law :-

       “Whether the finding returned by the first appellate court with
       regard to partition of the property is perverse and simpliciter suit
       for injunction without relief for procession is not maintainable ?”
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4.    Further, while admitting the present appeal vide order dated
11.4.2025, the Court has granted interim order by directing the parties
not to create any third party right over the property in question until
further orders of the Court.

5.    Learned counsel for the appellant-plaintiff submits that one
residential plot no. 22 M area 100 sq. yard situated at village Sihani,
Pargana Loni, Distt. Ghaziaabd was purchased by the appellant through
sale deed dated 21.6.1988. He submits that the plaintiff-appellant has
started construction over the said property but the dispute arose between
the parties, therefore, the plaintiff-appellant has filed a suit for injunction
wherein the respondent -defendant has filed written statement and after
considering the material available on record, the trial court has decreed
the suit in favour of the appellant-plaintiff. However, being aggrieved to
the said order, the respondent -defendant has filed civil appeal, which
has illegally been allowed by the impugned order without reversing the
findings recorded by the trial court.

6.    He submits that the appellant-plaintiff is in possession over the
said property and the said property cannot be disputed merely on the
basis of sale deed dated 15.5.2009 alleged to be executed in favour of
respondent -defendant. He submits that the trial court has rightly decreed
the suit but the appellant court has illegally allowed the appeal filed by
the respondent.
7.    Per contra, learned counsel for the respondent opposed the said
submissions of learned counsel for the appellant. He submits that a
simpliciter suit for injunction was filed which has wrongly been decreed
in favour of the appellant against the settled law as held by the Apex
court in the case of Jharkhand State Housing Board Vs. Didar Singh
(2018) 6 AWC 5932.
8.    He submits that possession over the property in question as
claimed by the appellant-plaintiff is under the serious cloud. He submits
that the court below has sent a Court Commission wherein it was found
that the defendant-respondent(s) are in possession over the property in
question and the said findings have never been challenged by the
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appellant at any stage, even before this Court. He submits that once the
Court Commission Report is in favour of the defendant-respondent, the
suit for simpliciter injunction was not maintainable. He submits that the
appellate court has rightly allowed the appeal filed by the respondent
after due consideration of the material available on record as well as
report of Court Commission.
9.    After hearing learned counsel for the parties, the Court has
perused the records.
10.   It is not in dispute that the suit for simpliciter injunction has been
filed. The suit for simpliciter injunction can be filed when there is no
cloud over the possession and title of the property in question. In the
present case, both the parties are claiming their right and possession over
the property in question on the strength of sale deed executed in their
favour on different dates. The defendant-respondent has brought on
record the evidence raising cloud over the title of the plaintiff-appellant.
The defendant-respondent has also brought on record the registered sale
deed executed in his favour as well as electricity bills, water tax receipts,
house tax receipts and khatauni in order to show that plaintiff -appellant
was not in the possession over the property in question.
11.   Apart from the said evidence, the report of Court Commission was
also prepared at the presence of both the parties wherein the Court
Commissioner has recorded the finding that the defendant-respondent(s)
are in possession over the property in question. The said findings have
never been challenged by the plaintiff/appellant at any stage, even before
this Court. Once the findings of Court Commissioner with regard to the
possession of the defendant-respondent, has not been challenged by the
appellant-plaintiff, then it cannot be said that title of the plaintiff-
appellant is without any cloud. Once the record itself reveals that title
and possession is in dispute and the respondents have successfully raises
cloud over the title of the plaintiff-appellant, the suit for injunction
without seeking declaration of title is not maintainable.
12.   Hon’ble the Apex Court in the case of Jharkhand State Housing
Board (supra) has held as under :-
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      10. The issue that fall for our consideration is: “Whether the suit for
      permanent injunction is maintainable when the defendant disputes the
      title of the plaintiff?”
      11. It is well settled by catena of Judgments of this 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.
      12. In the facts of the case the defendant Board by relying upon the
      land acquisition proceedings and the possession certificate
      could successfully raise cloud over the title of the plaintiff
      and in those circumstances plaintiff ought to have sought for
      the relief of declaration. The Courts below erred in entertaining the
      suit for injunction.
      13. Hence in view of the above discussion, we are of the considered
      opinion that the judgment and decree impugned in the appeal
      deserves to be set aside and accordingly we set aside the same.
      However, a request was made at the time of hearing on behalf of the
      plaintiff to direct the parties to maintain status quo for a period of three
      months to enable the plaintiff to avail the appropriate remedies
      available under law. In view of the long pending litigation, we deem it
      appropriate to direct the parties to maintain status quo with regard
      to possession for a period of three months. Resultantly, the
      appeal is allowed with the above observations by setting aside the
      judgment and decree dt. 12.10.2001 but in the circumstances
      without costs.
13.   Similar view has been taken in the case of T.V. Ramakrishna
Reddy Vs. M. Mallappa (2021) 13 SCC 135 in which the Court has
held as under :
       6. Shri Basava Prabhu S. Patil, learned Senior Counsel appearing on
       behalf of the respondent No.1 (defendant No.2), on the contrary, would
       submit that the learned single judge of the Karnataka High Court has
       rightly held that the issue involved had to be first decided on the basis
       of title and until the plaintiff’s claim for declaration of title is decided,
       the suit simpliciter for permanent injunction was not tenable.
       7.
       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
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          claiming declaration of title, as filed by the plaintiff, was not
          maintainable?
      …..
      20. It will also be relevant to refer to the following observations of this
      Court in the case of Jharkhand State Housing Board v. Didar Singh
      and another2:
          “11. It is well settled by catena of judg ments of this 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 circum 2 (2019) 17 SCC 692 stances, plaintiff
          cannot maintain a suit for bare injunction.”
      21. In the facts of the present case, it cannot be said at this stage that
      the dispute raised by the defendant No.2 with regard to title is not
      genuine nor can it be said that the title of the plaintiffappellant over
      the suit property is free from cloud. The issue with regard to title can
      be decided only after the fullfledged trial on the basis of the evidence
      that would be led by the parties in support of their rival claims.
14.   Again in the case of Anathula Sudhakar Vs. P. Buchi Reddy
(dead) \(2008) 4 SCC 594, the Apex Court has held as under :
      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.
          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
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     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.
..
17. 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
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                                            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.
                            15.         On perusal of the Apex Court judgement and order as quoted
                            herein above, it appears that the issue in hand is squarely covered in
                            favour of the respondent -defendant.
                            16.         In view of the facts of the present case as well as case law referred
                            herein above, the appellant herein utterly failed to show that the
                            possession and title over the property in question is beyond the cloud.
                            Once the respondent -defendant on the basis of evidence on record
                            clearly establishes his possession and title over the property in question
                            and same raises cloud upon the title of the plaintiff-appellant, the suit for
                            simpliciter injunction, without seeking declaration of title, is not
                            maintainable.
                            17.         No interference is called for by this Court in the impugned order.
                            18.         The appeal fails and is accordingly dismissed.
                            19.         The substantial question of law is answered accordingly.


                                                                                             (Piyush Agrawal,J.)

                            September 14, 2026
                            Rahul Dwivedi/-




Digitally signed by :-
RAHUL DWIVEDI
High Court of Judicature at Allahabad