Holding

A suit for injunction cannot be maintained where the plaintiff's title is disputed or clouded; the plaintiff must file a suit for declaration of title and the High Court erred in adjudicating title without pleadings, thus the appeal is allowed and the suit dismissed.

Summary

The plaintiffs filed a suit for a permanent injunction to restrain the defendant from interfering with their possession of two vacant plots, claiming ownership based on sale deeds from a vendor. The defendant contested the title, asserting purchase from the original owner and denying an alleged oral gift to the plaintiffs' vendor. The trial court granted injunction; the first appellate court reversed, holding the plaintiffs had not established title and should have filed a declaration suit. The High Court, on second appeal, examined the title in detail, accepted the oral gift, and restored the injunction. The Supreme Court held that where a cloud is raised over title, a suit for injunction alone is improper, the plaintiffs should have filed a declaration suit, and the High Court exceeded its jurisdiction under Section 100 CPC by deciding on title without pleadings. Consequently, the appeal was allowed and the suit dismissed.

Issues considered

Scope of a suit for prohibitory injunction relating to immovable property
Whether plaintiffs were required to file a suit for declaration of title and injunction
Whether the High Court could, under Section 100 CPC, re‑examine factual questions of title not pleaded and reverse the first appellate court
Appropriate disposition of the appeal

Legislation cited

Code of Civil Procedure, 1908s. 100
Transfer of Property Act, 1882s. 123, s. 41

Subjects

injunctiontitle disputevacant landSection 100 CPCSection 41 TP Actoral giftPasupu Kumkumamdeclaration suitpossession

Judgment

[2008] 5 S.C.R. 331

~·
ANATHULA SUDHAKAR . A
v.
P. BUCH! REDDY (DEAD) BY LRS. & ORS.
(Civil Appeal No. 6191 of 2001)

.. MARCH 25, 2008

[R.V. RAVEENDRAN AND P. SATHASIVAM, JJ.]
B

Suit for prohibitory injunction - Relating to vacant land -
-Claim for possession based on title - Title of plaintiff disputed
- Various complicated questions arose for putting forth a case c
of title - Suit decreed by trial court- Reversed by first appellate
court - High Court in second appeal after recording finding of
facts restored the order of trial court - On appeal, held: In the
facts and circumstances of the case, the questions which arose
for consideration could be decided only in a suit for declaration
0
and consequential reliefs and not in a suit for injunction
simplicitor - In absence of prayer for declaration of title, issue
regarding title, pleadings required for declaration of title, the
parties cannot be said to have an opportunity to have ·full
fledged adjudication regarding title - High Court exceeded
its jurisdiction uls 100 CPC in re-examining questions of fact, E
by going into the questions which were not pleaded and not in
issue, and by formulating questions of law which did not arise
in the second appeal - Code of Civil Procedure, 1908 - s. 100.
Suit for prohibitory injunction - Relating to immovable F
Property - Scope of - Held: The prayer for injunction will be
decided with reference to the finding on possession - In cases
of vacant land, it will be necessary to examine and determine
the title as a prelude for deciding the de jure possession - If
the title is clear and simple, the court may decide the issue of G
title - But, if a cloud is raised over plaintiff's title, a suit for
declaration and possession, with or without a consequential
injunction, is the remedy.
Respondent/plaintiffs 1 and 2 filed a suit for
331 H
332 SUPREME COURT REPORTS [2008] 5 S.C.R.

A permanent injunction against the appellant-defendant.
They pleaded that they were owners in possession of the
suit properties (vacant land) under sale deeds from 'R'
(their vendor). They alleged that the defendant interfered
with their possession. Defendant in his Written Statement
B stated that the suit property was purchased by him from
the brother of the plaintiffs' vendor under a registered sale
.
deed and was put in possession of the property by his
'
vendor and it were the plaintiffs who tried to interfere with
his possession. Plaintiffs led evidence to the effect that
c defendant's vendor had gifted the suit property to his
sister in the year 1961 by way of 'Pasupu Kumkumam'.
· Defendant and his v1mdor denied the plea of gift. Trial
Court decreed the suit. First Appellate Court allowed the
appeal of the defendant holding that defendant was in
possession of the property and the plaintiff had not made
.0
out either title or possession over it; that mere suit for
injunction was not maintainable and the suit should have
be amended to one for declaration and injunction. High
Court in second appeal, examining the evidence in detail,
recorded the findings of facts and restored the judgment
E and decree of trial court. It held that plaintiffs had
established their title in respect of suit land and drew an
inference that possession was presumed to be with them
by applying the princ:iple of possession follows title; and
that it was not necessary for the plaintiffs to sue for
· F declaration of title as the question of title could be
examined incidental to the question of possession. Hence
the present appeal.
The questions which arose for consideration before
G this Court were r1egarding the scope of a suit for
prohibitory injunction relating to immovable property;
whether plaintiffs were required to file a suit for declaration
of title and injunction; and whether the High Court, in a
second appeal, could examine the factual question of title
which was not the subject matter of any issue and based
H
ANATHULA SUDHAKAR v. P. BUCH! REDDY (DEAD) 333
BY LRS. & ORS.

on a finding thereon, reverse the decision of the first A
appellate court.
Allowing the appeal, the Court
HELD: 1.1 Where a cloud is raised over plaintiff's title
and he does not have possession, a suit for declaration B
and possession, with or without a consequential
injl:Jnction, 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 C
plaintiff's lawful possession or threat of dispossession, it
is sufficient to sue for an injunction simpliciter. [Para 17]
[349-G; 350-A]
1.2 A cloud is said to raise over a person's title, when
some apparent defect in his title to a property, or when D
some prima facie right of a third party over it, is made out
or shown. An action for declaration, is the remedy to
remove the cloud on the title to the property. On the other
hand, where the plaintiff has clear title supported by
documents, if a trespasser with'out any claim to title or an E
interloper without any apparent title, merely denies the
plaintiff's title, it does not amount to raising a cloud over
the title of the plaintiff and it will not be necessary for the
plaintiff to sue for declaration and a suit for injunction may
be sufficient. Where the plaintiff, believing that defendant
is on.ly a trespasser or a wrongful claimant without title, F
files a mere suit for injunction, and in such a suit, the
defendant discloses in his defence the details of the right
or title claimed by him, which raises a serious dispute or
cloud over plaintiff's title, then there is a need for the
plaintiff, to amend the plaint and convert the suit into one G
for declaration. Alternatively, he may withdraw the suit for
bare injunction, with permission of the court to file a
comprehe.nsive suit for declaration and injunction. He may
file the suit for declaration with consequential relief, even
after the suit for injunction is dismissed, where the suit H
334 SUPREME COURT REPORTS [2008] 5 S.C.R.

A raised only the issue of possession and not any issue of
title. [Para 12] [345-G; 346-A, B, C, D]
1.3 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
B injunction will be decided with reference to the finding on •
possession. In cases of vacant land, the principle is that
+
possession follows title. If two persons claim to be in
possession of a vacant site, one who is able to establish
title thereto will be considered to be in possession, as
c against the person who iis not able to establish title. This
means that even though a suit relating to a vacant site is
for a mere injunction and the issue is one of possession,
it will be necessary to e>eamine and determine the title as
a prelude for deciding the de jure possession. In such a
D situation,, where the title is clear and simple, the court may )'
venture a decision on the issue of title, so as to decide
the question of de jure possession even though the suit
is for a mere injunction. But where the issue of title involves
complicated or comple!X questions of fact and law, or
E where court feels that parties had not proceeded on the
basis that title was in issue, the court should not decide
the issue of title in a suit for injunction. The proper course
is to relegate the plaintiff to the remedy of a full-fledged
suit~for declaration and consequential reliefs. [Paras 14

F and 17] [346-G; 347-A, 13, C; 350-A, B]
1.4 However, 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). Where the av1erments regarding title are absent
G in a plai.nt 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
>-
I
I involves complicated questions of fact and law relating
Pl to title, the court will relegate the parties to the remedy by
'
ANATHULA SUDHAKAR v. P. BUCHI REDDY (DEAD) 335
BY LRS. & ORS.

way of comprehensive suit for declaration of title, instead A
of deciding the issue in a suit for mere injunction. [Para 17]
[350-C, D, E]
1.5 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- B
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 C
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 D
into title and cases where it will refer to plaintiff to a more
comprehensive declaratory suit, depending upon the
facts of the case. [Para 17] [350-F, G, H; 351-A]
Vanagiri Sri Selliamman Ayyanar
Uthirasomasundareswarar Temple vs. Rajanga Asari - AIR E
· 1965 Mad. 355; Su/ochana Amma vs. Narayanan Nair-1994
(2) SCC 14; Annaimuthu Thevar v. Alagammal - 2005 (6)
SCC 202; Sajjadanashin Sayed Md. Vs. Musa Dadabhai
Ummer - 2000 (3) SCC 350- referred to.
F
Corpus Juris Secundum (Vol.50, para 735, p.229) - .
referred to.
2.1 In the present case, the suit sites were vacant
plots. Both sides admitted that defendant's vendor was
the original owner and that entire property stood in his G
name. The defendant claims title through his vendor. The
plaintiffs claim title through their vendor, who neither has
any deed of title nor any document in support of title or
possession. Admittedly, there was no mutation in her
name: This means that plaintiffs claim title through H
336 SUPREME COURT REPORTS [2008] 5 S.C.R.

·A someone who claimed to be owner in pursuance of an
oral gift in the year 1961 without the property being
mutated in her name, whereas the defendant claims title
from the person who was admittedly the original owner
who was registered as owner in the revenue records.
B ·Necessarily, therefore, prima facie it has to be held that
defendant had made out possession following title.
[Para 20] [352-B, C, D, E]
2.2 The plaintiffs and their witnesses gave evidence
to the effect that defendant's vendor represented that his
C sister (appellants' v1endor) was the owner of the plot and
negotiated for sale of the several portions thereof in favour
of plaintiffs and PW3, and that defendant's vendor had
attested the sale deeds in their favour and identified his
sister as the vendor-executant before the Sub-Registrar,
D at the time of registration of the sale deeds. But
defendant's vendor in his evidence denied having made
· the oral gift or having attested the sale deeds in favour of
plaintiffs. He also denied having identified his sister at the
time of registratio111 of the sale deeds. Whether evidence
E of appellants' vendor and other plaintiffs' witnesses
should be believed or whether evidence of defendant's
vendor should be believed on the question of title, can be
examined only when there are necessary pleadings and
an issui:i regarding title. Further, where title of plaintiffs is
F disputed and claim for possession is purely based on title,
and the plaintiffs have to rely on various principles of law
relating to ostensible ownership and section 41 of
Transfer of Property Act, validity of a oral gift by way of
'Pasupu Kumkum' under Hindu Law, estoppel and
G acquiescence, to put forth a case of title, such complicated
questions could properly be examined only in a title suit,
that is a suit for declaration and consequential reliefs,
and not in a suit for an injunction simpliciter. [Para 21]
[352-E, F, G, H; 353-A, B, C]
H 3.1 High Court exceeded its jurisdiction under
ANATHULA SUDHAKAR v. P. BUCHI REDDY (DEAD) 337
BY LRS. & ORS.

Section 100 CPC, firstly in re-examining questions of fact, A
secondly by going into the questions which were not
pleaded and which were not the subject matter of any
issue, thirdly by formulating questions of law which did
not arise in the second appeal, and lastly, by interfering
4
with the well reasoned judgment of the first appellate court B
--t which held that the plaintiffs ought to have filed a suit for
declaration. [Para 27] [355-G; 356-A, B]
3.2 The High Court, in the absence of pleadings and
issues, formulated in a second appeal arising from a suit
for bare injunction, questions of law unrelated to the c
pleadings and issues, presumably because some
evidence was led and some arguments were advanced
on those aspects. The .only averment in the plaint that
plaintiffs were the owners of the suit property having
purchased the same under sale deeds, did not enable the D
i court, much less a High Court in second appeal, to hold a
roving enquiry into an oral gift and its validity or validation
of ostensible title under section 41 of Transfer of Property
Act. No amount of evidence or arguments can be looked

- into or considered in the absence of pleadings and issues. E
[Para 25] [355-A, B, C]
3.3 The High Court while reversing the decision of
the first appellate court, examined various aspects relating
to title and recorded findings relating to title. It held that
gifting a property to a daughter or sister by way of 'Pasupu F
Kumkumam ', could be done orally and did not require a
registered instrument. Even though there was no
independence evidence of oral gift except the assertion
to appellants' vendor (which was denied by defendant's
vendor), the High Court, held that there was an oral gift in G
her favour. It also accepted the evidence of PW3 and PW5
and plaintiffs, that defendant's vendor negotiated for the
sale of the plots represenUng that they sbelonged to his
sister; and that he attested the sale deeds as a witness
and identified his sister as the executant before the Sub- H
338 . SUPREME COUHT REPORTS [2008] 5 S.C.R.

A Registrar and therefore, Section 41 of Transfer of Property
Act came to the aid of plaintiffs and defendant's vendor
was estopped from denying the title of his sister. The High
Court in a second appeal arising from a suit for an
injunction, could not have recorded such findings, in
s the absence of pleadings and issue regarding title.
[Para 26] [355-D, E, F, G] +
3.4 Though driving the plaintiffs to a fresh round of
litigation after three decades would cause hardship to
them. But the scope of civil cases are circumscribed by
C the limitations placed by the rules of pleadings, nature of
relief claimed and the court fee paid. The predicament of
. plaintiffs, was brought upon themselves, by failing to
convert the suit to one for declaration even when the
written statement was filed, and by not seeking
D amendment of issues to include an issue on the question
of title. In the absence of a prayer of declaration of title )' .
and an issue regarding title, let alone the pleadings
required for a declaration of title, the parties cannot be
said to have an opportunity to have a full-fledged
E adjudication regarding title. [Para 28] [356-8, C, D]
w
CIVIL APPELLATE JURISDICTION : Civil Appeal
No.6191 of 2001 .

From the final Judgment and Order dated 18.01.1999 of
·F the High Court of Judicature at Andhra Pradesh at Hyderabad
in Second Appeal No. 29 of 1992.
D. Mahesh Babu for the Appellant.
K. Amareswari, P. Venkat Reddy and Guntur Prabhakar
G for the Respondents.
The Judgment of the Court was delivered by
R.V. RAVEENDRAN, J. This appeal by special leave is
by the defendant in a suit for permanent injunction. Puli Chandra
H Reddy and Puli Buchi Reddy were the plaintiffs in the said suit.
ANATHULA SUDHAKAR v. P. BUCH(REDDY (DEAD) 339
BY LRS. & ORS. [R.V. RAVEENDRAN, J.]

Both are now no more. The Legal Representatives of Puli A
Chandra Reddy are Respondents 2 to 5 and Legal
Representatives of Puli Buchi Reddy are Respondent 1 (i) to
(iii). The suit related to two sites bearing no. 13/776/B and 13/
776/C measuring 110 sq. yards and 187 sq. yards in Matwada,
Warangal town, together referred to as the 'suit property'. B
2. Plaintiffs 1 and 2 claimed to be the respective owners
in possession of the said two sites having purchased them under
two registered sale deeds dated 9.12.1968 (Exs.A 1 and A2)
from Rukminibai. The plaintiffs further claimed that the said two
sites were mutated in their names in the municipal records. They C
alleged that on 3.5.1978, when they were digging trenches in
order to commence construction, the defendant interfered with
the said work. The plaintiffs, therefore, filed suit OS No.279 of
1978 in the file of Principal District Munsiff, Warangal, for a
permanent injunction to restrain the defendant from interfering D
with their possession.
3. Defendant resisted the suit. He claimed that suit
property measuring 300 sq. yards in Premises No. 13/776 was
purchased by him from K. V. Damodar Rao (brother of plaintiffs'
vendor Rukminibai) under registered sale deed dated 7.11.1977 E
(Ex.B1); that he was put in possession of the suit property by
Damodar Rao; that th.e suit property had been transferred to
his name in the municipal records; that he applied for and
obtained sanction of a plan for construction of a building thereon;
and that he had also obtained a loan for such construction from F
the Central Government by mortgaging the said property.
According to him, when he commenced construction in the suit
property, the plaintiffs tried to interfere with his possession and
filed a false suit claiming to be in possession.
G
4. The trial court framed the following issues .., (i) whether
the plaintiffs are in exclusive possession of the suit sites (house
plots)? (ii) whether the defendant has interfered with the
possession of the plaintiffs over the suit plots? (iii) whether the
plaintiffs are entitled to permanent injunction; and (iv) to what H
340 SUPREME COURT REPORTS [2008] 5 S.C.R.

A relief. The plaintiffs examined themselves as PW1 and PW2.
They examined their vendor Rukminibai as PW4. Puli Malla
Reddy and Vadula Ramachandram examined as PW3 and
· PW5, were the purchasers of two adjacent sites from
Rukminibai. One of them (PW3) was the cousin of plaintiffs and
8 ·was also the scribe and attestor in respect of the two sale deeds
in favour of plaintiffs. Plaintiffs exhibited the two sale deeds dated
9.12.1968 in their favour as Ex.A 1 andA2 and municipal demand
notices and tax receipts, all of the year 1978 onwards, as Ex.A3
to A 11. A plan showing the sites was marked as Ex.A 12. Two
c · letters said to have written by Damodar Rao were marked as
Ex.A13 and A14. The sale deed executed by Rukminibai in
: favour of PW3 was markE~d as Ex.X1 and sale agreement in
favour of PW5 was mark.ed as Ex.X2. The defendant gave
evidence as DW1 and examined his vendor Damodar Rao as
DW2. He exhibited the certified copy of the sale deed dated
0
7.11.1977 in his favour as Ex.81, a certified copy of mortgage
deed executed by him in favour of Central Government as Ex.82,
the licence and sanctioned plan for construction of a house in
the suit plot as Ex.83 and B4 and the loan sanction proceedings
as Ex.85. He also exhibited a property tax receipt dated
E 12.2.1978 issued to Damodar Rao (Ex.86), water charge bill
dated 20 . 9.1978 for house No. 13/775 and 13/776 issued to
Damodar Rao (Ex.87), and property tax receipts dated
: 19.2.1972, 14.10.1973, 2B.3.1970 and 13.11.1968 in the name
of Damodar Rao (Ex. 88 to 811).
F,
5. There was no dispute that the site purchased by the
defendant from Damodar Rao under deed dated 7 .11.1977 is
the same as the two sites purchased by plaintiffs from Rukminibai
under sale deeds dated 9.1.1968. There is also no dispute that
G the suit property is a vacant plot and it was originally portion of
the backyard of the property bearing nos. 13/775 and 13/776,
belonging to Damodar Rao, and that he was shown as
1
registered owner of the said properties No.13/775 and 13/776
in the municipal records.
HI 6. The plaintiffs led evidence to the effect that Damador
I
ANATHULA SUDHAKAR v. P. BUCHI REDDY (DEAD) 341
BY LRS. & ORS. [R.V. RAVEENDRAN, J.]

-4· Rao orally gifted the backyard portion of No.13/775 and 13/ A
776, (separated from the'main building by a dividing wall) to his
sister Rukminibai in the year 1961, by way of 'Pasupu
Kumkumam' (a gift made to a daughter or sister, conferring
absolute title, out of love and affection, with a view to provide for
her); that Rukminibai sold three portions of the gifted site to B
PW3, plaintiff No. 1, plaintiff No.2 in the year 1968 and they were
in possession ever since 1968; and that an agreement of sale
was also entered in regard to another portion with PW5 as per
Ex.X2. On the other hand, defendant led evidence denying that
the suit property was given to Rukminibai by way of 'Pasupu c
Kumkumam'. His vendor Damodar Rao gave evidence that he
was the owner of the suit property and he sold it to the defendant
under deed dated 7. 11.1977 and put him in possession thereof.
While plaintiffs alleged that plots were mutated in their names
after their purchase, defendant alleged that the suit property
D
purchased by him was a part of plot No.13/776 which stood in
~ the name of Damodar Rao in the municipal records. Neither
party produced the order of mutation or any certificate from the
municipal authorities, certifying or showing mutation to their
names. They only produced tax receipts. The tax receipts
produced by plaintiffs showed that they had paid taxes from E
1978 onwards, that is for a period subsequent to the sale by
Damodar Rao i_n favour of defendant. Plaintiffs did not produce
any tax paid receipt to show that the property stood in the name
of Rukminibai. Nor did they produce any tax receipt for the period
9.12.1968 (date of purchase by plaintiffs) to 7.11.1977 (date of F
purchase by defendant). The defendant produced tax receipts
-+- to show that the suit property stood in the name of his vendor
Damodar Rao till the date of sale in his favour.
7. The trial court decreed the suit by judgment dated
G
31.12.1985. Relying on the two sale deeds in favour of plaintiffs,
the tax paid receipts and the oral evidence, it held that plaintiffs
were in possession of the suit property from the date of purchase

~
and the defendant had interfered with their possession. The
defendant filed an appeal challenging the judgment and decree
H
342 SUPREME COURT REPORTS [2008] 5 S.C.R.

A of the trial court before the Addi. District Judge, Warangal. The
first appellate court held that the defendant was in possession
of the suit property and the plaintiffs had not made out, even
prima facie, either title or possession over the suit property. It
was of the View that in the circumstances a mere suit for injunction
B was not maintainable, and at least when the defendant filed his
written statement denying the title of plaintiffs and setting up a
clear and specific case of title in himself, the plaintiffs ought to
have amended the plaint to convert the s11it into one for
declaration and injunction. Consequently it allc'Ned the appeal
C by judgment and decre!e dated 9.12.1991 and dismissed the
suit. Being aggrieved, the plaintiffs filed SA No.29 of 1992.

8. The High Court by its judgment dated 18.1.1999 allowed
the second appeal and restored the judgment and decree of
the trial court. For this purpose, the High Court examined the
D evidence in detail and recorded the following findings:
(i) There was an oral gift of the backyard portion (No.13/
776) by way of 'pasupu kumkumam' by Damodar Rao in
favour of his sistl3r Rukminibai in the year 1961. As a gift
of an immovable property in favour of a daughter or sister
E by way of 'Pasupu Kumkuman' could be oral, the absence
of any registered document did not invalidate the gift.
(ii) Damodar Rao negotiated with plaintiffs, for sale of
the two sites, on behalf of his sister Rukminibai,
F representing that his sister was the owner thereof and
attested the sale deeds executed by his sister Rukminibai
in favour of plaintiffs as a witness and identified her as the
executant of the sale deeds before the Sub-Registrar.
Those acts of Damodar Rao supported the claim of
Rukminibai that there was a oral gift. Alternatively, even if
G
there was rio gift in favour of Rukminibai, and Damodar
Rao was the owner, the aforesaid acts of Damodar Rao
showed that with his implied consent, Rukminibai
represented to be the ostensible owner of the suit property
and transferred the same to plaintiffs for consideration.
H
ANATHULA SUDHAKAR v. P. BUCH! REDDY (DEAD) 343
BY LRS. & ORS. [R.V. RAVEENDRAN, J.]

~ This attracted the provision of section 41 of Transfer of A
Property Act, 1882 and therefore the transfers in favour of
plaintiffs was not voidable at the instance of Damodar
'"\
Rao or his successor in interest on the ground that
Rukminibai was not the owner of the suit property.

I The High Court consequently held that plaintiffs had B
~ established their title in regard to the two vacant sites purchased
by them and drew an inference that possession was presumed
.. to be with them by applying the principle of possession follows
title. The High Court also held that it was not necessary to
plaintiffs to sue for declaration of title, as the question of title c
could be examined incidental to the question of possession.
9. The said judgment is challenged by the defendant, in
this appeal by special leave, on the following grounds :
(a) The suit for permanent injunction without seeking D
... "i declaration of title was not maintainable on the facts of the
case. At all events, the High Court ought not to have
i recorded a finding of fact on a seriously disputed and
complicated issue of title, in a suit for a mere injunction.
(b) The first appellate court held that plaintiffs had neither E
established their title nor their possession and their remedy
was to file a suit for declaration and consequential relief.
The High Court, in a second appeal, ought not to have
reversed the said decision of the first appellate court, by
the process of examining and recording a finding on title, F
even though there was no issue regarding title.
:t -+-
(c) An oral gift by a brother to a sister was not
permissible. At all events, such an oral gift even if
permissible, can be made only at the time of a partition or
G
at the time of marriage of the sister, with a view to making
a provision for her. The High Court erred in holding that
the there was a valid oral gift by Damodar Rao in favour
~"""""""" of Rukminibai.
(d) There was no plea in the plaint about the ostensible H
344 SUPREME COURT REPORTS [2008] 5 S.C.R.

A ownership of Rukminibai or about any acts of Dam0dar +-
Rao which demonstrated the consent of Damodar Rao to
such ostensible ownership. Nor was there any plea about
due and diligent enquiries by the plaintiffs regarding title
before purchase. Therefore the High Court erred in holding
B ,that the sales in favour of plaintiffs were protected by section
41 of the Transfer of Property Act, 1882. ~

(e) In the absence of pleadings and an issue regarding
title, the defendant had no opportunity to effectively lead
evidence on the question of title.
c
(f) The High Court erred in equating plaintiffs' failure to
produce title deeds of their vendor to defendant's failure
to produce the title deeds of his vendor. The High Court
overlooked the fact that there was no dispute that
defenda!lt'S vendor Damodar Rao was the earlier owner
D
of the suit property and it was for the plaintiffs who had set
up a case that their vendor Rukminibai derived title from
Damodar Rao under an oral gift, to prove the said claim.
)"
-
10. On the contentions urged, the following questions arise
E for our consideration in this appeal:
(i) What is the scope of a suit for prohibitory injunction
relating to immovable property?
(ii) Whether on the _facts, plaintiffs ought to have filed a
F suit for declaration of title and injunction ?
(iii) Whether the High Court, in a second appeal under . ......
section 100 CPC, examine the factual question of t
title which was not the subject matter of any issue
and based on a finding thereon, reverse .the decision
.
G of the first appellate court?
(iv) · What is the appropriate decision?
).- ~.
Re : Question (i) :
11. The general principl_es as to when a mere suit for
H'
ANATHULA SUDHAKAR v. P. BUCHI REDDY (DEAD) 345
BY LRS. & ORS. [R.V. RAVEENDRAN, J.]

permanent injunction will lie, ~nd when it is necessary to file a 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 B
~
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 c
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

-
D
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 E
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 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 F
possession, necessarily the plaintiff will have to file a suit
for declaration, possession and injunction .
•
12. We may however clarify that a prayer for declaration
will be necessary only if the denial of title by the defendant or
challenge to plaintiff's title raises a cloud on the title of plaintiff G
to the property. A cloud is said to raise over a person's title,
when some apparent defect in his title to a property, or when
-../
;
some prima facie right of a third party over it, is made out or
shown. An action for declaration, is the remedy to remove the
cloud on the title to the property. On the other hand, where the H
346 SUPREME COURT REPORTS (2008] 5 S.C.R.

A plaintiff has clear title supported by documents, if a trespasser
without any claim to title or an interloper without any apparent
title, merely denies the plaintiff's title, it does not amount to raising
a cloud over the title of the plaintiff and it will not be necessary
for the plaintiff to sue for declaration and a suit for injunction
B may be sufficient. Where the plaintiff, believing that defendant
is only a trespasser or a wrongful claimant without title, files a
j..
mere suit for injunction, and in such a suit, the defendant
discloses in his defence the details of the right or title claimed
by him, which raises a serious dispute or cloud over plaintiff's
c title, then there is a need for the plaintiff, to amend the plaint and
convert the suit into one for declaration. Alternatively, he may
withdraw the suit for bare injunction, with permission of the court
to file a comprehensive suit for declaration and injunction. He
may file the suit for declaration with consequential relief, even
after the suit for injunction is dismissed, where the suit raised
D
only the issue of possession and not any issue of title.
13. In a suit for permanent injunction to restrain the
defendant from interfering with plaintiffs possession, the plaintiff
will have to establish that as on the date of the suit he was in
~
-
E lawful possession of the suit property and defendant tried to
interfere or disturb such lawful possession. Where the property
is a building or building with appurtenant land, there may not be
much difficulty in establishing possession. The plaintiff may
prove physical or lawful possession, either of himself or by him
F through his family members or agents or lessees/licensees.
Even in respect of a land without structures, as for example an
agricultural land, possession may be established with reference
to the actual use and cultivation. The question of title is not in
issue in such a suit, though it may arise incidentally or collaterally.
G 14. But what if the property is a vacant site, which is not
physically possessed, used or enjoyed? In such cases the
principle is that possession follows title. If two persons claim to
be in possession of a vacant site, one who is able to establish
title thereto will be considered to be in possession, as against
;..- .
Hi the person who is not able to establish title. This means that

••
ANATHULA SUDHAKAR v. P BUCH! REDDY (DEAD) 347
BY LRS. & ORS. [R.V. RAVEENDRAN, J.]

even though a suit relating to a vacant site is for a mere injunction A
and the issue is one of possession, it will be necessary to
examine and determine the title as a prelude for deciding the
de Jure possession. In such a situation, where the title is clear
and simple, the court may venture a decision on the issue of
~ title, so as to decide the question of de Jure possession even B
,... though the suit is for a mere injunction. But where the issue of
title involves complicated or complex questions of fact and law,
or where court feels that parties had not proceeded on the basis
that title was at issue, the court should not decide the issue of
title in a suit for injunction. The proper course is to relegate the c
plaintiff to the remedy of a full-fledged suit for declaration and
consequential reliefs.
'\
' 15. There is some confusion as to in what circumstances
the question of title will be directly and substantially in issue,
and in what circumstances the question of title will be collaterally D
-; and incidentally in issue, in a suit for injunction simpliciter. In
Vanagiri Sri Sel/iamman Ayyanar Uthirasomasundareswarar
Temple vs. RaJanga Asari -AIR 1965 Mad. 355, the Madras
High Court considered an appeal arising from a suit for
possession and injunction. The defendant contended that the E
plaintiff had filed an earlier suit for injunction which was
dismissed, and therefore the plaintiff was precluded from
agitating the issue of title in the subsequent suit, being barred
by the principle of res Judicata. It was held that the earlier suit
was only for an injunction (to protect the standing crop on the F
land) and the averments in the plaint did not give rise to any
question necessitating denial of plaintiff's title by the defendant;
and as the earlier suit was concerned only with a possessory
right and not title, the subsequent suit was not barred. There
are several decisions taking a similar view that in a suit for
G
injunction, the question of title does not arise or would arise
only incidentally or collaterally, and therefore a subsequent suit
-~ for declaration of title would not be barred. On the other hand, in
Sulochana Am ma VS. Narayanan Nair - 1994 (2) sec 14'
this Court observed that a finding as to title given in an earlier
H
348 SUPREME COURT REPORTS (2008] 5 S.C.R.

A injunction suit, can operate as resjudicata iri a subsequent suit
for declaration of title. This was on the premises that in some
suits for injunction where a finding on possession solely
depended upon a finding on the issue of title, it could be said
that the issue of title directly and substantially arose for
B consideration; and when the same issue regarding title is put in
issue, in a subsequent title suit between the parties, the decision ~
in the earlier suit for i.njunction may operate as res judicata.
This Court observed :
"Shri Sukumaran further contended that the remedy of
c injunction is an equitable relief and in equity, the doctrine
of res judicata cannot be extended to a decree of a court
of limited pecuniary jurisdiction. We find no force in the
contention. It is settled law that in a suit for injunction when
title is in issue for the purpose of granting injunction, the
D issue directly arid substantially arises in that suit between
the parties. When the same issue is put in issue in a later
suit based on title between the same parties or their privies
in a subsequent suit the decree in the injunction suit equally
operates as res judicata."
E This was reiterated in Annaimuthu Thevarv. Alagamma/
- 2005 (6) sec 202..
16. This Court in Sajjadanashin Sayed Md. Vs. Musa
Dadabhai Ummer - 2000 (3) SCC 350, noticed the apparent
F conflict in the views expressed in Vanagiri and Sulochana
Amma and clarified that the two decisions did not express
different views, but dealt with two different situations, as
explained in Corpus Juris Secundum (Vol.50, para 735, p.229):
"Where title ito property is the basis of the right of
G possession, a decision on the question of possession is
res judicata on the question of title to the extent that
adjudication of title was essential to the judgment; but
where the question of the right to possession was the only )r -!
issue actually or necessarily involved, the judgment is not
H conclusive on the question of ownership or title."

'
ANATHULA SUDHAKAR v. P. BUCH! REDDY (DEAD) 349
BY LRS. & ORS. [RV. RAVEENDRAN, J.]

In Vanagiri, the finding on possession did not rest on a A
finding on title and there was no issue regarding title. The case
related to an agric1.,1ltural land and raising of crops and it was
obviously possible to establish by evidence who was actually
using and cultivating the land and it was not necessary to
examine the title to find out who had deemed possession. If a B
' finding on title was not necessary for deciding the question of
.... possession and grant of injunction, or where there was no issue
regarding title, any decision on title given incidentally and
collaterally will not, operate as res ju.dicata. On the other hand,
the observation in Su/ochana Amma that the finding on an issue c
relating to title in an earlier suit for injunction may operate as
res judicata, was with reference to a situation where the question
of title was directly and substantially in issue in a suit for
injunction, that is, where a finding as to title was necessary for
grant of an injunction and a specific issue in regard to title had
D
been raised. It is needless to point out that a second suit would
• 1 be batred, only when the facts relating to title are pleaded, when
a issue is raised in regard to title, and parties lead evidence on
the issue of title and the court, instead of relegating the parties
to an action for declaration of title, decides upon the issue of
title and that decision attains finality. This happens only in rare E
cases. Be that as it may. We are concerned in this case, not
with a question relating to res judicata, but a question whether a
finding regarding title could be recorded in a suit for injunction
simpliciter, in the absence of pleadings and issue relating to
title. F
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 plaintiffs title and he G
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, ~e has to sue
for possession with a consequential injunction. Where there H
350 SUPREME COURT REPORTS [2008] 5 S.C.R.

A 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
B 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
c 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
D
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
E 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.
F
(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
G
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
H
ANATHULA SUDHAKAR v. P. BUCH! REDDY (DEAD) 351
BY LRS. & ORS. [RV RAVEENDRAN, J.]
-~ vexatiously or wrongfully makes a claim or tries to encroach A
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.

r Re : Question (ii) : B

18. Rukminibai did not have any title deed to the suit
property. The case of plaintiffs during arguments was that the
gift made in the year 1961, being by way of 'Pasupu Kumkumam'
in favour of a sister by a brother, could be oral and did not require c
a registered instrument. But the property allegedly gifted to
Rukminibai was not mutated in the name of Rukminibai in the
municipal records, but continued in the name of Damodar Rao
even after 1961. Damodar Rao was a resident of Warangal
and staying in the house adjoining the suit property. Rukminibai
D
was a resident of Hyderabad. Therefore, as on the date of sales
~ in favour of the plaintiffs 9.12.1968, Rukminibai had neither any
title deed nor actual possession. Nor was the property mutated
in her name in the municipal records. The tax paid receipts
produced by the plaintiffs related to a period subsequent to the
execution of the sale deeds by Rukminibai in their favour and E
• subsequent to the sale by Damodar Rao in favour of defendant.
On the other hand, the suit property was sold in favour of the
defendant by Damodar Rao who was shown as registered
owner in the municipal records and who even according to the
plaintiffs was the original owner of the property. F
_,,.,.
19. The first appellate court found that the evidence of
plaintiffs and their witnesses as to the title of plaintiffs' vendor
Rukminibai was sketchy and inconsistent. It referred to three
versions as to how Rukminibai got the property. The first version
G
(as per PW1) was that the suit property belonged to
Rukminibai's father and he had given it to his daughter
Rukminibai by way of 'Pasupu Kumkumam'. The second version
~~
(as per PW2) was that after the death of Rukminibai's father,
there was an oral partition between K. V. Damodar Rao and
H
352 SUPREME COURT REPORTS [2008] 5 S.C.R.

A Rukminibai and at that partition, the suit property was allotted )---

to Rukminibai. But both PW1 and PW2 admitted that they did
not make any enquiry with Rukminibai about her title. The third
version (as per PW4 - Rukminibai) was that Damodar Rao
made an oral gift of the plot in her favour by way of 'Pasupu
B Kumkumam' in the year 1961. She admitted that there was no
special occasion for gifting the plot to her in the year 1961, as ~
..
she was married long prior to 1961.
20. The suit sites were vacant plots. Both sides admitted
that Damodar Rao was the original owner and that entire property
c stood in his name. The defendant claims title through Damodar
Rao. The plaintiffs claim title through Rukminibai who neither
has any deed of title nor any document in support of title or
possession. Admittedly, there was no mutation in her name. This
means that plaintiffs claim title through someone who claimed
D to be owner in pursuance of an oral gift in the year 1961 without
the property being mutated in her name, whereas the defendant .,,. ~

claims title from the person who was admittedly the original
owner who was registered as owner in the revenue records.

-
Necessarily, therefore, prima facie it has to be held that defendant
E had made out possession following title.
21. The plaintiffs and their witnesses gave evidence to the
effect that Damodar Rao represented that his sister Rukminibai
was the owner of the plot and negotiated for sale of the several
portions thereof in favour of plaintiffs and PW3, and that Damodar
F Rao had attested the sale deeds in their favour and identified
his sister as the vendor - executant before the Sub-Registrar,
at the time of registration of the sale deeds. It is no doubt true
that if that was the position, it is possible for them to contend
that having regard to section 41 of Transfer of Property Act, when
G the ostensible owner Rukminibai sold the property with the
implied consent of Da1modar Rao, the defendant as a transferee
from Damodar Rao could not contend that the sales were not
valid. They also alle£1ed that defendant was a close relative of )"' ...
Damodar Rao and the sale in favour of defendant was only
H nominal, intended to defeat their title. But Damodar Rao in his
ANATHULA SUDHAKAR v. P. BUCHI REDDY (DEAD) 353
BY LRS. & ORS. [RV. RAVEENDRAN, J.)

evidence denied having made the oral gift or having attested A
th~. sale deeds in favour of plaintiffs. He also denied having
identified his sister at the time of registration of the sale deeds.
Whether Rukminibai's evidence and other plaintiffs' witnesses
should be believed or whether evidence of Damodar Rao should
be believed on the question of title, can be examined only when B
there are necessary pleadings and an issue regarding· title.
Further, where title of plaintiffs is disputed and claim for
possession is purely based on title, and the plaintiffs have to
rely on various principles of law relating to ostensible ownership
and section 41 ofTP Act, validity of a oral gift by way of 'pasupu c
kumkum' under Hindu Law, estoppel and acquiescence, to put
forth a case of title, such complicated questions could properly
be examined only in a title suit, that is a suit for declaration and
consequential reliefs, and not in a suit for an injunction simpliciter.
Re : Questions (iii) and (iv) D
22. The High Court formulated the following as substantial
questions of law:
"(i) Whether the plaintiffs' suit for permanent injunction
without seeking declaration of title is maintainable under E
law?
(ii) Whether the acts and deeds of Damodar Rao (DW-
2) made the plaintiffs to believe that Rukminibai is the
ostensible owner of the suit property and thus made them
to purchase the suit property for valid consideration and, F
·therefore, the provisions under Section 41 of the Transfer
of Property Act are attracted and as such DW-2 could not
pass on a_ better title to the defendant under Ex. B-1?
. (iii) Whether the alleged oral gift of the suit property in G
favour of Rukminibai by DW2 towards pasupukumkum is
legal, valid and binding on DW2 though effected in
contravention of the provisions under Section 123 of the
" Transfer of Property Act?"
Having regard to the pleadings and issues, only the first H
•

354 SUPREME COURT REPORTS [2008) 5 S.C.R.

A question formulated by the High Court can be said to arise for
its consideration in the second appeal. The second and third
questions did not arise at all, as we will presently demonstrate.

23. The second qUE~stion of law formulated by the High
Court is a mixed question of fact and law, that is whether the
B factual ingredients necessary to claim the benefit of section 41
of the Transfer of Property Act were made out by plaintiffs. To
attract the benefit of section 41 of TP Act, the plaintiffs had to
specifically plead the averments necessary to make out a case
under section 41 of the T.P. Act and claim the benefit or protection
C under that section. The averments to be pleaded were :

(a) that Rukminibai was the ostensible owner of the
property with the express or implied consent of Damodar
Rao;
D (b) that the plaintiffs after taking reasonable care to
ascertain that the transferor or Rukminibai had the power
to make the transfer, had acted in good faith in purchasing
the sites for valid consideration; and

E
(c) that therefore, the transfer in favour of plaintiffs by
Rukminibai was not voidable at the instance of Damodar
Rao or any one claiming through him.
-
These pleas were not made in the plaint. When these were
not pleaded, the question of defendant denying or traversing
F them did not arise. In the absence of any pleadings and issue, it
is ununderstandable how a question of law relating to section
41 ofTPAct could be formulated by the High Court.
24. The third question of law formulated by the High Court,
is also a mixed question of fact and law - firstly whether there
G was an oral gift and secondly whether the alleged oral gift was
valid. Here again, there was no averment in the plaint in respect
of any gift, oral or otherwise, by Damodar Rao in favour of
Rukminibai or about its validity. Consequently there was no
·opportunity to the defendant to deny the oral gift in his written
H statement. There was no issue on this aspect also. Therefore,
ANATHULA SUDHAKAR v. P. BUCH! REDDY (DEAD) 355
BY LRS. & ORS. [RV RAVEENDRAN, J.]

this question, which could not have been considered in the suit, A
could not also have been considered in the second appeal.
25. The High Court, in the absence of pleadings and
issues, formulated in a second appeal arising from a suit for
bare injunction, questions of law unrelated to the pleadings and
issues, presumably because some evidence was led and some B

+ arguments were advanced on those aspects. The only averment
in the plaint that plaintiffs were the owners of the suit property
having purchased the same under sale deeds dated 9.12.1968,
did not enable the court, much less a High Court in second
appeal, to hold a roving enquiry into an oral gift and its validity c
or validation of ostensible title under section 41 of TP Act. No
amount of evidence or arguments can be looked into or
considered in the absence of pleadings and issues, is a
proposition that is too well settled.
D
26. The High Court while reversing the decision of the first
..., · appellate court, examined various aspects relating to title and
recorded findings relating to title. It held that gifting a property to
a daughter or sister by way of 'Pasupu Kumkumam", could be
done orally and did not require a registered instrument. Even
though there was no independence evidence of oral gift except E
the assertion to Rukminibai (which was denied by Damodar
Rao), the High Court, held that there was an oral gift in her favour.
It also accepted the evidence of PW3 and PW5 and plaintiffs,
that Damodar Rao negotiated for the sale of the plots
representing that they belonged to his sister Rukminibai and F
' _..._ that he attested the sale deeds as a witness and identified the
Rukminibai as the executant before the Sub-Registrar and
therefore, section 41 of TP Act came to the aid of plaintiffs and
Damodar Rao was estopped from denying the title of his sister.
The High Court in a second appeal arising from a suit for an G
injunction, could not have recorded such findings, in the absence
of pleadings and issue regarding title.
# ..
27. We are therefore of the view that the High Court
exceeded its jurisdiction under section 100 CPC, firstly in re-
H
356 SUPREME COURT REPORTS (2008] 5 S.C.R.

~~
A examining questions of fact, secondly by going into the questions
which were not pleaded and which were not the subject matter
of any issue, thirdly by formulating questions of law which did
not arise in the second appeal, and lastly, by interfering with the
well reasoned judgment of the first appellate court which held
B that the plaintiffs ought to have filed a suit for declaration.
28. We are conscious of the fact that the suit was filed in --+
the year ·1978 and driving the plaintiffs to a fresh'round of litigation
after three decades would cause hardship to them. But the scope
of civil cases are circumscribed by the limitations placed by the
c rules of pleadings, nature of relief claimed and the court fee
paid. The predicament of plaintiffs, was brought upon
themselves, by failing to convert the suit to one for declaration
even when the written statement was filed, and by not seeking
amendment of jssues to include an issue on the question of
D title. In the absence of a prayer of declaration of title and an
issue regarding title, let alone the pleadings required for a
declaration of title, the parties cannot be said to have an
opportunity to have a fulHledged adjudication regarding title.
29. We, therefore, allow this appeal, set aside the judgment
E of the High Court and dismiss the suit. Nothing stated herein or
by the courts below shall be construed as expression of any
. opinion regarding title, in any future suit for declaration and
consequential reliefs tha1t may be filed by !Re Appellants, in
accordance with law. Parties to bear their respective costs.
F
K.K.T. Appeal allowed.
..+- '