Smt.Daulatabai Shahabuddin Sattani and Anr. Vs… — Property and Title | Bombay HC (2024)

Smt.Daulatabai Shahabuddin Sattani and Anr. Vs… — Property and Title | Bombay HC (2024)

2024:BHC-NAG:14016

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331 sa131.04

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR.

SECOND APPEAL NO.131 OF 2004

1. Smt.Daulatabai Shahabuddin Sattani,
aged about 67 years, occupation – Nil, (dead)
thr.LRs

2. Shri Saddrudin Shahabuddin Sattani,
aged 40 years, occupation : business,

both r/o Itwara Chouk,
Mahadeopura, Wardha
Taluka and district Wardha.

Appellant No.1:Smt. Daulatabai Shahabuddin Sattani since dead through her legal heirs :

1(a). Smt. Mallika w/o Amir Ali
Manji, age-62 years, occupation – Nil,
r/o flat No.302, 3rd floor,
Royal home, old kattal mandi,
Nampalli, Hyderabad.

1(b). Smt.Hamida w/o Barkat Ali
Dhammani, age – 60 years,
occupation – Nil, r/o Karimabad
society, Opp.Poonam Chambers, Byramji Town,
Nagpur.

1(c). Smt.Dilshad Samsuddin
Damani, age – 56 years,
Occ.– Nil, r/o Prafulla Mishra
complex, Bakratunda-B3,

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Gandhi marg, Angul,
Odisha-759 122. ….. Appellants.

:: V E R S U S ::

Smt.Kulshambai wd/o Allibhai Ajani,
aged 67 years, occ–Nil,
r/o Itwara Chouk, Mahadeopura,
Wardha, taluka and district Wardha. ….. Respondent.
=================================
Shri R.M.Vaidya, Counsel Appellants.
Shri M.R.Deshpande, Counsel for the Respondent.

=================================
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 02/12/2024
PRONOUNCED ON : 20/12/2024

JUDGMENT

By this appeal, judgments and decrees dated

20.12.2003 passed by learned 3rd Ad Hoc Additional District

Judge, Wardha in RCA No.109/1997 and 4.10.1997 passed by

learned 2nd Joint Civil Judge Junior Division, Wardha in RCS
No.164/1997 are under challenge.

The parties hereinafter are referred as per their original

nomenclature.

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The respondent herein is the original plaintiff who filed

a suit for permanent and mandatory injunction restraining the
defendants from demolishing the northern wall of house and
from alienating the suit house. The plaintiff is the owner of
nazul plot No.215 and in nazul sheet No.14 of mouza Wardha
admeasuring 417.01 square meters. The house of the
defendants is on the western side of the plot along with one
block on the southern side of the said plot wherein the son of
the plaintiff is running shop. The original owner of the suit
property was husband of the plaintiff who died on 6.2.1981.
After death of her husband, she along with her sons inherited
the suit property. It is specific contention of the plaintiff that
her husband during his life time has never executed any Will
in favour of his son Salim and, therefore, Salim has no right to
dispose of the said property by registered sale deed dated
16.5.1988. By virtue of decree passed in RCS No.92/75, her
husband was declared to be owner of nazul plot no.215. She
first time came to know about the execution of the sale deed

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dated 16.5.1988 on 16.6.1997. She claimed that she is the
owner and sale deed is not binding on her and, therefore, the
defendants be restrained from taking possession of any area
and from alienating any portion of the suit property. The suit
property is still in the name of the deceased. The defendants
are neighbours and started demolishing some portion of the
compound wall on 24.5.1997 on northern side and, therefore,
she constrained to file the suit.

The suit is contested by the defendants by filing written statement and denied the contentions of the plaintiff. As per the defendants, the defendant No.1 had purchased the plot situated in ward No.19, old nazul block No.14 east-west on northern side 25 feet, east-southern side 24 feet, north-west side 40.6 feet and eastern side 24 feet with a corner having

length 2.9 feet. Total area 1017 square feet having boundaries
as under:

Towards East :- house of Dulichand,

Towards West :- house of Shri Ajani,

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Towards North :- house of vendor.

The plot was purchased by the defendant No.1 by sale

deed dated 16.5.1998 for consideration amount of Rs.19,000/-
vide registered sale deed dated 16.5.1988 from Salim Alibhai

Ajani. Salim acquired the title on the basis of the Will
executed by his father. His father bequeathed the entire
property to his legal heirs and they have purchased the same
from Salim. Thus, they became the owner of the suit property
and ownership of the plaintiff was denied and prayed for
dismissal of the suit.

Learned Civil Judge Junior Division, Wardha recorded

the evidence and observed that the fact of execution of the
Will in favour of Salim itself is not proved and, therefore, the
sale deed executed by Salim is not valid. Thus, the defendants

failed to prove the ownership over the suit property. The
evidence on record sufficiently shows the suit property is in

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possession of the plaintiff and granted injunction in favour of
the plaintiff by decreeing the suit.

The decree passed in the RCS was challenged by the defendants by preferring Civil Appeal No.109/1997 which was dismissed by the first appellate court by observing that there is nothing put by the side of the defendants to show that they are owner of the suit property. In fact, execution of the Will itself is not proved and, therefore, the sale deed executed by Salim

claiming his ownership on the basis of the Will is not
established and, therefore, the said sale deed is not valid and
not binding on the plaintiff and confirmed the judgment and
decree passed by learned Civil Judge Junior Division, Wardha.

Thus, the judgments passed by learned Civil Judge Junior Division, Wardha and first appellate court, Wardha are under challenge in the present second appeal.

The following substantial questions of law are framed:

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1. Whether the suit for simplicitor injunction is maintainable?

2. Whether the suit is barred for non-joinder of necessary parties?

3. Whether the suit is barred by law of limitation?

Heard learned counsel Shri R.M.Vaidya for the

defendants. He submitted that the suit is filed in the year
1997. Whereas, the defendants are in possession of the suit
property from 16.5.1988. Burden is wrongly shifted on the
defendants without framing an issue of ownership. The
manner, in which the trial was conducted, prejudice is caused
to the interest of the respondent. The suit is barred by
limitation of non-joiner of necessary party. The vendor of the
suit property from whom the defendants have purchased the
property was not made as a necessary party to the suit. In a
suit, dwelling house is not mentioned as subject-matter of suit.
The trial court and the first appellate court considered the date
of knowledge to hold that the suit is within the limitation. In

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fact, the suit is not filed within the limitation. For all above
these grounds, the judgments and decrees passed by learned
Civil Judge Junior Division and the first appellate court
deserve to be quashed and set aside.

Per contra, learned counsel Shri M.R.Deshpande for the plaintiff submitted that there is consistent finding of the trial court as well as the first appellate court and it is well settled that when there is a concurrent finding of fact which is usually binding on this court while hearing the second appeals under Section 100 of the CPC. The plaintiff was not party to the sale deed. The original owner Alibhai has two wives. Originally, the entire plot was given to deceased Alibhai Ajani

who had three sons from the plaintiff. After the death of
Alibhai, they succeeded to the entire property and, therefore,
Salim has no right to execute the sale deed. The Will executed
in his favour is not proved by the defendants. Thus, the
possession as well as the ownership of the plaintiff over the

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suit property is established and, therefore, no interference is
called for.

In support of his contentions, learned counsel for the plaintiff placed reliance on following decision:

S.K.Golam Lalchand vs. Nandu Lal Shaw alias Nand Lal
Keshri alias Nandu Lal Bayes and ors, reported in 2024
SCC OnLine SC 2456.

Whereas, learned counsel for the defendants placed reliance on following decision:

1. Common Piru Chaudhari vs. Berubai Chendu
Redhiwale and ors, reported in 2017(5) Mh.L.J.138;

2. Jogendra Nath Mondal and ors vs. Adhar Chandra
Mondal, reported in 1950 SCC OnLine Cal 219, and

3. Anathula Sudhakar vs. P.Buchi Reddy (dead) by LRs
and ors, reported in (2008)4 SCC 594.

Perusal of the evidence adduced by the parties, reveals

that the defendants began the case by adducing their evidence.

Defendant No.1 examined himself vide Exh.51 and deposed as

per his pleading that he became the owner of the suit property

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on the basis of the sale deed executed in his favour by Salim.
Said Salim got the title on the basis of Will executed in his
favour by his father Alibhai. The cross examination shows that
his residential house is towards West of the plaintiff’s house.
He further admitted that towards East of the suit property son
of the plaintiff runs his video shop and towards South there is
plaintiff’s residential house and towards North there is house

of Dulichand. It further came in the evidence that the plaintiff
filed the complaint against them on 24.9.1997 as they were
demolishing the compound wall of the suit house. He further
admitted that the police gave them understanding not to
demolish the wall situated on the suit property.

The evidence of DW2 Mansur Ali, who is the neighbour, states that the disputed wall having height of 10 feet and is surrounding the entire plot. Thus, as far as evidence of DW2 is concerned, the same is as to the existence of the wall.

DW3 Sheikh Gaffar was working as petition writer at

the relevant time who stated that he has reduced into writing

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the recital of the sale deed. During his cross examination, he
admitted that while reducing into writing the recital of the sale
deed, the descriptions as to the plot number, house number,
survey number, plot number and layout number are not
mentioned in Exh.59 which is the extract of register of the sale
deed.

Defendant No.4 Abdul, stated that he was called when the deceased has shown his willingness to execute the Will. The wife of Ali came to call him. At the relevant time, testator Ali was sick and in his presence the Will was written. His evidence shows that prior to execution of the sale deed the plaintiff and sons were owners and possessors of the property. Thus, the evidence of DW4 clearly shows that the suit property was in the possession of the plaintiff.

The plaintiff has also adduced the evidence by examining Siraj who as per his pleading in the plaint. The evidence further shows that his father was having two wives. The first wife was not alive. From the first wife, his father was

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having one son Rajjak Ali and one daughter Daulatibai. They
both are not alive. After the death of the first wife, his father
got married with the plaintiff. All properties were self acquired
properties of his father. Thus, his evidence also shows that the
suit property was in the possession of the plaintiff and her sons
and the defendants came into possession of the suit properties
allegedly after execution of the Sale Deed.

The entire case of the defendants rested on the basis of

sale deed which is executed by Salim with the averments that
he hold the title of the suit property on the basis of the Will
executed in his favour.

Admittedly, the original Will or certified copy of the

Will is not produced before the court. The photocopy of the
Will was produced and there is no application to treat it as a
secondary evidence. Whether the Will executed in favour of
Salim is proved by the defendants to prove the ownership?

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The defendants have come with a case that their

vendor Salim got right to dispose of the property as the Will
was executed in his favour. PW1 Siraj at Exh.69 testified that
his father has not executed any Will in favour of Salim. Thus,
the defendants claimed a right over the suit property on the
basis of the sale deed which is executed by Salim, their
vendor . Admittedly, the Will is not produced before the court.
Defendants have examined DW4 Abdul vide Exh.61 who acted
as attesting witness at the time of execution of the Will.
According to his evidence, he went to the house of Alibhai, the
testator on receiving the call. In his presence Alibhai himself
wrote the Will, read over its contents to them and, thereafter,
he and Alibhai signed on the Will. Alibhai bequeathed the
open space to Salim in the year 1980. The evidence of
appellant No.2 Saddrudin shows that Salim has shown him
Will dated 12.11.1980. The said Will is in the possession of
Salim. He admitted that there were no contents regarding the
partition in the Will. The Will was not produced though they

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were aware that it is in the possession of salim. The contents
of the documents were neither produced nor proved. The
evidence further shows that till recording the evidence, the suit
property was shown in the name of deceased. There was no
attempt by the defendants to enter their names in the City
Survey Record despite the sale deed was executed in their
favour.

As far as the legal position in the matter of proof of the Will is concerned, it is well settled that Will is to be proved like any other documents. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved. Sections 67 and 68 of the Evidence Act are relevant.

Under Section 67, if a document is alleged to be signed
or to have been written wholly or in part by any person, the

signature or the handwriting of so much of the document as is
alleged to be in that person's handwriting must be proved to be
in his handwriting.

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Under Sections 45 and 47 of the Evidence Act, the

opinions of experts and of persons acquainted with the
handwriting of the person concerned are relevant.

Section 68 of the said Act, deals with Proof of execution

of document required by law to be attested and it provides that
such documents shall not be used as evidence until one
attesting witness at least has been called for the purpose of
proving its execution.

These provisions prescribes the requirements and the

nature of proof which must be satisfied by the party who relies
on a document in a court of law.

Sections 59 and 63 of the Indian Succession Act are also relevant.

Section 59 deals with the situation that every person of

sound mind not being a minor may dispose of property by
Will.

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Section 63 requires that the testator shall sign or shall
affix his mark to the Will, or it shall be signed by some other
person in his presence and by his direction and the signature
or mark of the testator, or the signature of the person signing
for him, shall be so placed that it shall appear that it was
intended thereby to give effect to the writing as a Will. The
said Section also requires that the Will shall be attested by two
or more persons. The Will is to be proved like the other
documents.

It is well settled that the court who examines the proof of Will is also duty bound to see whether disposition under the Will is natural. The duty is cast upon the propounder to remove all doubts regarding suspicious circumstances. A Will is solemn document by which a dead man entrusts to the living for carrying out of his wishes. It is an instrument by which a person makes a disposition of his property to take effect after his death.

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The evidence of DW1 states vide Exh.51 that after

execution of the sale deed by Salim, possession was handed
over to him and since then it has been in his possession.
Whereas, cross examination shows that the plaintiff did not
allow him to enter the plot and, therefore, he stated
approximate area of the plot. There is only one way to the plot
i.e. from the house of the plaintiff till filing of the suit. He has
not taken any steps for recording his name to record of rights.

DW2 Mansur Ali corroborates the version of DW1 during chief examination. But he admitted that to approach the suit plot there is door from video shop. He is unable to tell whether there is possession of the respondent or not.

Thus, as far as the title is concerned, defendants failed to prove that Salim got any right to transfer the property as the Will is not proved. Certified copy of the judgment in RCS No.92/75 between the deceased and his sons was decided in favour of deceased Alibhai. The said finding was not challenged. So, it is proved that the deceased was owner of

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the house. Thus, the possession and ownership of Salim over
the suit property which was allegedly sold out to the
defendants is not established by the defendants. There is
concurrent finding of the trial court as well as the first
appellate court holding title as well as the possession of the
plaintiff over the suit property.

Learned counsel for the defendants submitted that the

suit for simplicitor injunction is not maintainable. In support
of his contentions, he placed reliance on the decision of the
Hon’ble Apex Court in the case of Anathula Sudhakar vs.
P.Buchi Reddy (dead) by LRs and ors1wherein 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

1 (2008)4 SCC 594

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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.

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(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

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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.

Thus, in a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he

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was in 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 can prove physical or lawful possession either by the
family members.

As far as the vacant site is concerned, the principle is that possession follows tittle. 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 the person who is not able to establish title. 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.

Now, coming to the submission made by learned counsel for the defendants regarding maintainability of the suit for mere injunction without seeking cancellation of the sale deed executed in favour of the defendant No.1, it is relevant to

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note that Section 38 of the Specific Relief Act deals with grant
of perpetual injunction which may be granted to the plaintiff
when the defendant invades or threatens to invade the
plaintiffs right to, or enjoyment of, property, and where the
invasion is such that compensation in money would not afford
adequate relief and where the injunction is necessary to
prevent a multiplicity of judicial proceedings.

It is submitted by learned counsel for the defendants that the defendants got title on the basis of the sale deed which is executed by Salim. Said Salim got the title on the basis of the Will. Whether the sale deed executed in favour of defendant No.1 by Salim is a valid document? Section 31 of the Specific Relief Act refers to both void and voidable documents. It provides for discretionary relief. When a document is valid, no question arises for it when the document i s void ab inito . The decree for setting the aside the same would not be necessary as the same is non est .

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The Hon’ble Apex Court, in the case of Prem Singh and

ors vs. Birbal and ors2, in paragraph Nos.15 and 16 observed

that:

“15. Section 31 of the Specific Relief Act, 1963
thus, refers to both void and voidable documents.
It provides for a discretionary relief.

16. When a document is valid, no question arises
of its cancellation. When a document is void ab
initio, a decree for setting aside the same would
not be necessary as the same is non est in the eye
of the law, as it would be a nullity.”

If the plaintiff is in possession of a property, he may file a suit for declaration or an injunction.

In the present case, the vendor of the defendants claimed right of ownership on the basis of the Will. The said Will was not produced. Thus, the right of the vendor to transfer the property is not established. Learned Judge in RCS No.92/75 declared the deceased as owner of the property 2 (2006)5 SCC 353

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wherein the subject matter was not the suit house but the plot.
The defendants possession over the suit property is not
established.

As observed, the right of the vendor to execute the sale deed itself is not established. The defendants’ theory of possession over the suit plot is based on the source of title which is sale deed dated 16.5.1988. The executant of the sale deed Salim is the son of the plaintiff. The right of said Salim is on the basis of the Will. The Will was also treated by the defendants as partition deed. The deceased distributed the property during his life time. Defendant No.2 first time during evidence stated that the Will is the document of partition. The original Will was not brought on record and photocopy of the same was filed on record. Thus, the Will is not proved by the defendants. Thus, execution of the sale deed on the basis of the said Will appears to be void document as ownership of the vendor itself is not established.

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The law will come to the aid of a person if he establishes possession. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted.

The defendants have also raised issue of limitation and

submitted that the suit is not within the limitation.

The limitation for filing the suit is of three years. The plaintiff has claimed that cause of action arose for the instant suit on 24.5.1997 when the defendants started demolishing the plaintiff’s wall and, therefore, the suit is within the limitation. The defendants have challenged the maintainability of the suit on the ground that the suit is not without limitation. The contention of the plaintiff is that RCS No.92/1975 was decided on 11.8.1980. The other defendants in the suit was Nasurala. In this litigation, the subject matter of the suit was plot No.215, nazul plot No.1, ward No.3 which

is the same property involved in the present suit. In the said

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proceeding, it was held that Alibhai is the exclusive owner of
the suit property and possession and ownership of Alibhai was
upheld.

As already observed, on the the basis of the Will, Salim became the owner of the suit property which he sold to the defendants. The defendants have admitted in their

evidence that they were demolishing the wall of the suit
property claiming to be the owner of the suit property. This
act on the part of the defendants without having possession is
certainly contravention of due procedure of law. Thus,
demolishing the wall by the defendants as claimed by the
plaintiff was on 24.5.1997 and the suit was filed on 24.5.1997
and, therefore, the suit is within the limitation.

The another ground raised, that the suit is not maintainable for non-joinder of necessary parties, as far as the objection of the non-joinder of necessary party under Order I Rule 9 of the Civil Procedure Code is concerned, the legal representatives of Raja Bali are alive they are interested in the

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suit property and, therefore, they are necessary party. In a
suit, if the necessary party is not added, such suit shall be
dismissed not for non-joinder or mis-joinder of parties but for
no effective order can be passed or no relief can be granted.
Necessary party is one without whom no order can be made
effectively. A necessary party held is one in whose absence an
effective order can be made but whose presence is necessary
for complete and final decision on the question involved in the
proceeding.

As already observed that, Alibhai was declared to be lawful owner of the suit property by judgment and decree passed in RCC No.92/1975, Raja Bali and Nasurala had no concern with the property and said Alibhai was held to be exclusive owner of the said property and, therefore, the contention that Raja Bali and his legal representatives are necessary parties is not sustainable.

The trial court as well as the first appellate court both have considered the evidence and held that the possession

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over the suit property is of a plaintiff. The defendants claimed
the possession on the basis of the sale deed which is executed
by their vendor on the basis of the Will and the said Will is not
proved. The evidence on record further shows that there was
no other way to approach to the property except from the
house of the plaintiff. Defendants further admitted that they
were demolishing the said wall and the police complaint was
registered against them. Thus, without following a due
procedure of law an attempt was made by the defendants to
demolish the wall which is considered by the trial court as well
as the first appellate court.

The scope of second appeal in view of Section 100 of the Civil Procedure Code is very limited. In numerous judgments, it has been held that concurrent finding of fact of the trial court and the first appellate cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of the Code. It is not the principal of law that where the High Court finds that if there is a concurrent finding of two

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courts, such finding becomes unassailable in the second
appeal. However, it has been laid down in several decisions
that concurrent findings of fact is usually binding on this court
while hearing the second appeals under the said Code. It is
trite law that in order to record any findings on facts, the trial
court is required to appreciate the entire evidence oral as well
as documentary in the light of the pleading of the parties. The
appellate court has jurisdiction to appreciate the evidence
while hearing the first appeals either affirming the findings of
the trial court or reversing the same.

In the case of Kondiba Dagadu Kadam vs. Savitkibai Sopan Gujar and ors 3, the Hon’ble Apex Court held that from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court.

In the case of State of Rajasthan vs. Shiv Dayal4, the

Hon’ble Apex Court held that a concurrent finding of the fact is

3 (1999)3 SCC 722

4 (2019)8 SCC 636

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binding unless it is pointed out that it was recorded de hors
the pleadings or it was based on no evidence or based on mis-
reading of the material on records and documents. The

Hon’ble Apex Court held that when any concurrent finding of
fact is assailed in second appeal, the appellant is entitled to
point out that it is bad in law because it was recorded de hors
the pleadings or it was based on no evidence or it was based
on misreading of material documentary evidence or it was
recorded against any provision of law and lastly, the decision is
one which no Judge acting judicially could reasonably have
reached.

In the present case, both courts i.e. the trial court and the first appellate court on the basis of the evidence gave concurrent finding that it is the plaintiff who is in the possession of the suit property and the defendants have interfered with the peaceful possession and thereby plaintiff is entitled for the relief of injunction. Even, the decision in the

case of Anathula Sudhakar vs. P. Buchi Reddy (Dead) By Lrs &

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ors5as relied upon by the defendants deals with the situation
wherein it is held that 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.

Here, in the present case, there is merely an interference with the plaintiff’s lawful possession and, therefore, the suit for simpliciter injunction is maintainable which is rightfully considered by the trial court as well as the first appellate court and, therefore, the substantial question of law framed that, whether the suit for simplicitor injunction is maintainable, is answered in affirmative . Another substantial

5 AIR 2008 SC 2033

.....33/-

Judgment

331 sa131.04

33

question of law framed, that whether the suit is barred by law
of limitation, is answered in negative.

The appeal being devoid of merits and liable to be dismissed, the same is dismissed.

Appeal stands disposed o f.

( URMILA JOSHI-PHALKE, J. )

!! BrWankhede !!

...../-