Kamrul Hoda alias Qumrul Hoda Vs Bigal Devi And Ors.

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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S.A. No. 1 of 1999 (R)

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Kamrul Hoda @ Qumrul Hoda, son of Safruddin Khalifa by Caste Muslim, by occupation Cultivation, resident of village Gingo Thakurgaon, P.S. Burmu, District Ranchi

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… … Defendant/Appellant/Appellant -Versus-

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Laxmi Narain Bhagat, S/o Late Mahesh Sahu (deleted vide order dated 06.06.2011)

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1(A) Bigal Devi

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1(B) Geeta Devi

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1(C) Sangeeta Devi

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1(D) Manju Devi

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… … Plaintiffs/Respondents/Respondents

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2A. Mosst. Kharoon Nisa, wife of Late Md. Suleman

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2B. Mohammad Ilias, son of Late Md. Suleman

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2C. Md. Haroon, son of Late Md. Suleman

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2D. Md. Irfan, son of Late Md. Suleman

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All residents of village Ginjo Thakurgaon, P.S. Burmu, District Ranchi

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Md. Illias, son of Md. Suleman Respondent Nos. 2(A) to 2(D) and 3 transposed as appellant Nos. 2 to 6 vide order dated 11.07.2000)

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4(A) Kamla Devi, Wife of Late Balgovind Bhagat

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4(B) Praduman Bhagat 4(C) Anirudh Bhagat 4(D) Ashok Bhagat

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4(E) Narendra Jaiswal

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4(F) Raghubans Jaiswal

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4(G) Jayant Bhagat

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All sons of Late Balgobind Bhagat, residents of Village Ginjo Thakurgaon, P.S. Burmu, District Ranchi

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Ramnarain Bhagat, son of Late Mahesh Babu (Deleted Vide order dated 28.08.2025)

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5(a) Bindiya Devi, widow of Late Ram Narain Bhagat

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5(b) Sanjay Jaiswal

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5(c) Vijay Jaiswal

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Nos. (b) and (c) are sons of Late Ram Narain Bhagat

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Nos. (a) to (c) are residents of village Ginjo Thakur Gaon, P.O. & P.S. Burmu, District Ranchi

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5(d) Sangita Devi, daughter of Late Ram Narain Bhagat and wife of Late Gupteshwar Bhagat, resident of village Dulaicha, P.O. & P.S. Lapur, District Ranchi

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5(e) Sunita Devi, wife of Jagdish Jaiswal, resident of Village Chainpur, P.O. and P.S. Chainpur, District Gumla

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… … Defendants/Respondents/Respondents

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CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Appellant : Mr. Kundan Kr. Ambastha, Advocate For the Respondents : Mr. Rajeev Ranjan Tiwary, Advocate ---

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27/8^th September 2025

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1. Heard the learned counsels appearing on behalf of the parties.

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2. This appeal has been filed against the judgment dated 25.09.1998 (decree signed on 31.10.1998) passed in Title Appeal No. 20/1984 by the learned 2^nd Additional Judicial Commissioner, Ranchi, whereby the appeal has been dismissed. The title suit was decided vide judgment dated 16.01.1984 (decree signed on 03.02.1984) passed by the learned Additional Sub-Judge, Ranchi in Title Suit No. 157 of 1981/ 49 of 1983. The suit was decreed on contest and only defendant no. 3 filed the appeal before this Court. The records of the case reveal that on 11.07.2000, I.A. No. 390 of 2000 (R) was considered, whereby respondent Nos. 2(a) to 2(d) [legal heirs of Md. Suleman-original defendant no.1] and 3 [son of Md. Suleman and original defendant no. 2] had prayed to transpose them in the category of appellant and the said application was allowed. Thus, now the defendant no.1,2 and 3 are the appellants before this court in this 2^nd appeal.

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3. The suit was filed for grant of permanent injunction against defendant Nos. 1 to 4 restraining them from catching fish and exercising any act of ownership, in absence of and without previous notice and consent of the plaintiff in writing, over the disputed tank as mentioned in the schedule of the plaint.

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4. The suit was decreed on contest against defendant no. 1 to 4 and exparte against the defendant no.5 in the following terms: -

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“42. In the result it is, therefore,

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Ordered

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that the suit be and the same is hereby decreed on contest with costs against defendant nos. 1 to 4 and ex-parte against defendant no. 5 pleader’s fee Rs. 32/- and Clerk’s fee Rs. 4/- is also allowed.

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The defendants 1 to 4 are hereby restrained through a permanent injunction from catching fishes and exercising all acts of ownership over the disputed Tank bearing R.S. Plot no. 2290 and 2291 appertaining to Khata no. 99 of village Ginjo Thakur Gaon, P.S. Burmu, District Ranchi in absence and without due notice and consent of the plaintiff in writing. However, they shall put Jira and catch fishes in the disputed Tank according to their shares with due notice and consent of the plaintiff in writing.”

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5. The 1^st appeal was dismissed and hence this 2^nd appeal has been filed by the defendant no.1 to 3 /their legal representatives.

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6. This second appeal was admitted for final hearing vide order dated 11.07.2000 on the following substantial questions of law: -

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(i) Keeping in view the reliefs prayed for in the plaint, whether or not in was open to the plaintiff, and for that matter, the courts below to examine the question of title?

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(ii) Is the suit for permanent injunction maintainable in the facts and circumstances of the present case, where no declaration of title has been sought for in the plaint?

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(iii) In view of the case of the plaintiff that he has a limited share in the suit property, is it open to him to seek the declaration of permanent injunction with respect to the balance of the property?

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Arguments of the appellant

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7. The learned counsel for the appellant, while assailing the impugned judgments, has submitted that there was serious dispute of title in connection with the suit property, but the plaintiff did not seek any relief in connection with declaration of title. Further, no issue was framed on the point of title of one or the other party, but the learned trial court after elaborate discussion based on materials placed on record held in paragraph 35 of the judgment that the plaintiff has totally proved his right, title, interest and possession over 2 annas 8 pies share in the disputed tank, hence he is entitled to get the relief of permanent injunction and rejected the arguments of the learned counsel for the defendant nos. 2 and 4.

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8. The learned counsel has also submitted that in paragraph 32 of the judgment, the learned trial court has also held that the sale deed dated 19.03.1976 as executed by Rabinandan Bhagat and Raghunandan Bhagat in favour of defendant no. 3 is a manufactured document which is without consideration and as such the same never became operative. It has also been held that the said document has been manufactured by defendant no. 1 Md. Suleman in order to grab the share of the plaintiff out of the disputed tank and further held that defendant no. 3 never came in possession over 2 annas 8 pies share on the basis of the sale deed dated 19.03.1976 as executed by Rabinandan Bhagat and Raghunandan Bhagat in his favour.

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9. The learned counsel submits that no relief was sought for with regard to declaration of sale deed dated 19.03.1976 as manufacture document. He has submitted that such relief, which has been granted by the learned trial court declaring the title of the plaintiff with respect to the suit property and also declaring the sale deed of the defendants dated 19.03.1976 as manufacture document, is beyond the relief sought for in the suit and such relief could not have been granted in view of Order VII Rule 7 of CPC. The learned counsel has also submitted that disputed

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question of title cannot be decided in a suit seeking injunction. He has submitted that in view of the aforesaid facts and circumstances, the learned trial court was not justified in entering into intricate question of title between the parties and therefore 1^st substantial question of law be answered in favour of the appellant.

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10. The learned counsel has then relied upon the judgment passed by the Hon’ble Supreme Court reported in (1991) 1 SCC 441 (Om Prakash and Others vs. Ram Kumar and Others) paragraph 4 to submit that a party cannot be granted a relief which is not claimed and if the circumstances of the case are such that the granting of such relief would result in serious prejudice to the interested party and deprive him of the valuable rights under the statute. The learned counsel has submitted that the valuable right of the defendants has been taken away by virtue of the judgment passed by the learned trial court whereby his sale deed has been declared as manufacture document and therefore declaration of title and the relief granted was beyond the scope of the suit.

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11. The learned counsel has also relied upon the judgment passed by the Hon’ble Supreme Court reported in (2021) 13 SCC 135 (T.V. Ramakrishna Reddy vs. M. Mallappa & Anr.) paragraph 15 and 20 to submit that 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 in view of the fact that the issue of title can be decided after full-fledged trial based on evidence which would be led by the parties in support of their rival claim and in such circumstances, a bare suit for injunction is not maintainable without seeking declaration of title.

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12. The learned counsel has submitted that this aspect of the matter has not been properly considered even by the learned 1^st appellate court while confirming the judgment and decree passed by the learned trial court. He has submitted that in view of the aforesaid facts and circumstances, the suit for permanent injunction was not maintainable in absence of a

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declaration of title and therefore 2^nd substantial question of law is also fit to be answered in favour of the appellant and against the respondents.

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13. With respect to 3^rd substantial question of law, the learned counsel submits that in view of serious dispute in connection with title, the suit for declaration of permanent injunction could not have been decreed and therefore once the suit itself if found to be not maintainable, then the 3^rd substantial question of law loses its relevance and therefore 3^rd substantial question of law be also answered in favour of the appellant and against the respondents.

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Arguments of the respondents

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14. Learned counsel appearing on behalf of the respondents has referred to the judgment passed by the Hon’ble Supreme Court reported in (2008) 4 SCC 594 (Anathula Sudhakar vs. P. Buchi Reddy (dead) by Lrs. & Others) and has in particular referred to paragraph 21 thereof to submit that the entire position of law with respect to prohibitory injunction relating to immovable property has been summarized in as many as four categories. He has submitted that the present case falls under category enumerated in paragraph 21(d). He has submitted that there was necessary pleadings regarding title and the parties had led evidence on the point of title and therefore the court could decide the issue regarding title, even in a suit for injunction. He has submitted that when the plaintiff had clear title and was suing for injunction, the suit was maintainable and he should not be driven to costlier and more cumbersome remedy of a suit for declaration of title.

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15. He submits that both the courts have scrutinized the materials and have held that the plaintiff has title over the property and therefore the grant of injunction was not beyond the scope of the suit.

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16. The learned counsel submits that in view of the facts and circumstances, the suit was maintainable and merely because the learned trial court has pronounced on the title, the same cannot be said to be not

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maintainable. It was only incidentally the court had entered into the point of title and given the finding.

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Findings of this Court

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17. After hearing the learned counsels for the parties, this Court finds that the suit was filed seeking relief for permanent injunction against defendant nos. 1 to 4. The plaintiff further prayed that in absence and without due notice and consent of the plaintiff in writing, the defendants be restrained from catching fish and exercise all acts of ownership over the disputed tank.

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18. The plaintiff claimed to be the co-owner of the properties mentioned in the schedule to the plaint and he has 2 annas 8 pies share in the same. The plaintiff claimed that Late Mahesh Bhagat, the father of the plaintiff, held and possessed 5 annas 4 pies share in the disputed tank by virtue of a sale deed taken from Janki Bagat in the year 1942 who had 1/3^rd share over the tank. It was further asserted in the plaint that Mahesh Bhagat transferred his entire share of the disputed tank in the name of the plaintiff and defendant no. 5 through a registered sale deed dated 14.07.1954 and at the time of said transfer, the plaintiff and defendant no. 5 were minors.

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19. It was the further case of the plaintiff that the plaintiff has been in peaceful possession of the property to the extent of his share and in exercise of his rights of ownership and possession, the plaintiff along with his mother had given 2 annas 8 pies share out of the disputed tank to Md. Suleman defendant no. 1 on Thika/Settlement for a period of 12 years by virtue of a deed dated 07.01.1967 which expired on 07.01.1979. After expiry of said Thika, the plaintiff came in possession of his 2 annas 8 pies share in the disputed tank and was enjoying the property.

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20. It was their further case that the defendant no. 2 is the son of defendant no. 1, and defendant no. 2 is also a thikaholder of one of the cosharers of the tank. The defendant no. 3 is the nephew of defendant no. 1

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and he has no right, title and interest over the portion of the disputed tank. As the defendant nos. 1, 2 and 3 were own relatives, they have joined hands with the defendant no. 4, they in connivance with each other were trying to play mischief with the proceeds of the disputed tank without giving any notice to the plaintiff.

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21. It was also asserted that a title suit was filed by defendant no. 5 against defendant no. 1 with respect to his 2 annas and 8 pies share in the disputed tank and during pendency of its appeal, the period of thika has expired. A Second Appeal being S.A. No. 109 of 1980 has been filed by the defendant no. 5 before the Hon’ble Patna High Court, Ranchi Bench, but the same has nothing to do with 2 annas 8 pies share of the plaintiff in the disputed tank.

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22. The cause of action for this suit arose on several dates and lastly on 19.12.1981, when the plaintiff came to know from the villagers that the defendant nos. 1 to 4 were desperately catching the fishes from the disputed tank.

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23. The defendant nos. 1 to 4 had filed their separate written statement and their specific case was that the suit was not maintainable. In their written statement, it was their case that Mahesh Bhagat and Ganesh Bhagat have purchased 5 annas 4 pies share in the disputed tank from Janki Bhagat through a registered sale deed dated 24.08.1942 and they came in joint possession over the same. Mahesh Bhagat had sold the aforesaid 5 annas 4 pies share in favour of defendant no. 1 through a registered sale deed dated 29.06.1954. It was their further case that Mahesh Bhagat, with his bad motive and ill intention, after being influenced by Most. Etwari (the mother of the plaintiff and defendant no. 5), had cancelled the sale deed dated 29.06.1954 through a registered deed of cancellation and he executed a fresh sale deed dated 14.07.1954 in favour of Laxmi Narain Bhagat (plaintiff) and Ram Narain Bhagat (defendant no. 5) with respect to his 5 annas 4 pies share out of the

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disputed tank. A criminal case was also instituted by defendant no. 1 whereby Shri Mahesh Bhagat was convicted by the trial court, but was acquitted by the appellate court.

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24. It is their further case that defendant no. 1 had filed Title Suit No. 134 of 1955 in the court of learned Munsif, Ranchi against Mahesh Bhagat which ended in compromise and it was stated that on the basis of compromise in title suit, defendant no. 1 gave up his 2 annas 8 pies interest in favour of Mahesh Bhagat and retained with him only 2 annas 8 pies interest in the disputed tank.

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25. It was the further case of the defendant nos. 1 to 4 that the plaintiff Laxmi Narain Bhagat and his mother Most. Etwari, as natural guardian of minor Ram Narain Bhagat (defendant no. 5), executed a registered deed of lease dated 07.01.1967 for 12 years in favour of defendant no. 1 Md. Suleman in respect of their 2 annas 8 pies share in the disputed tank. As such, the defendant no. 1 came in possession over entire 5 annas 4 pies share in the disputed tank. It is also stated that on 19.03.1976, defendant no. 3 had purchased 2 annas 8 pies share in the disputed tank from Rabinandan Bhagat and Raghunandan Bhagat, the son of Late Ganesh Bhagat and he began to disturb defendant no. 1 over the disputed tank. It is stated that defendant no. 5 Ram Narain Bhagat in collusion and conspiracy of the plaintiff had filed a title suit being Title Suit No. 31 of 1976 against the defendant no. 1 in the court of learned Munsif, Ranchi, but his claim was rejected and a part decree over 1 anna 4 pies share was given to defendant no. 5. The judgment and decree passed by the learned Munsif, Ranchi was confirmed by the learned appellate court in first appeal and S.A. No. 109 of 1980 filed by defendant no. 5 Ram Narain Bhagat against Md. Suleman before the Hon’ble High Court, Patna, Ranchi Bench is pending.

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26. At this, the learned counsel for the appellant has produced a photo copy of the judgment passed in the aforesaid S.A. No. 109 of 1980 and

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has submitted that the second appeal filed by Ram Narain Bhagat against Md. Suleman was dismissed.

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27. It was the specific case of defendant no. 3 that the plaintiff had got no share in the disputed tank and hence, it cannot be admitted that the plaintiff came in possession of 2 annas 8 pies share on 07.01.1979 rather defendant no. 3 had purchased 2 annas 8 pies share of Ganesh Sahu from his sons Rabinandan Bhagat and Raghunandan Bhagat through a registered sale deed dated 19.03.1976 and he came in possession.

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28. The learned trial court framed the following issues for consideration: -

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(i) Is the suit as framed maintainable? (ii) Has the plaintiff got valid cause of action or right to sue? (iii) Is the suit barred by Section 34 of the Specific Relief Act? (iv) Is the plaintiff entitled to get a decree for grant of permanent injunction against defendant nos. 1 to 4 as claimed for?

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(v) To what other relief or reliefs, if any, is the plaintiff entitled?

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29. Admittedly, no issues was framed in connection with right, title, interest and possession with respect to the suit property and admittedly no relief was sought for in connection with right, title, interest and possession over the suit property. However, the learned trial court considered all the materials placed on record and came to the following finding: -

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“…………………………………………………………………….

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In my opinion, the plaintiff has totally proved his right, title interest and possession over 2 annas 8 pies share in the disputed tank hence he is legally entitled to get a relief for grant of permanent injunction. Accordingly, I reject the arguments advance by the learned lawyer for defendant nos. 2 and 4.”

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30. The learned trial court also recorded in paragraph 32 that the sale deed dated 19.03.1976 executed in favor of defendant no. 3 was a manufactured document. The said finding is quoted as under: -

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“…………………………………………………………………

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In my opinion, the sale deed dated 19.3.76 as executed by Rabinandan Bhagat and Raghunandan Bhagat in favour of defendant no. 3 is a manufactured document which is without consideration and as such the same never became operative. The said document has been manufactured by defendant no. 1 Md. Suleman in order to grab the share of the plaintiff out of the disputed Tank. Md. Quamrul Hoda never came in possession over 2 annas 8 pies share on the basis of the sale deed dated 19.3.76 as executed by Rabinandan and Raghunandan Bhagat in his favour.”

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31. The learned trial court after having held that the plaintiff had right, title and interest over 2 annas 8 pies share in the disputed tank and also after having held that the sale deed dated 19.03.1976 was a manufactured document, ultimately granted injunction in favour of the plaintiff in the terms as quoted above.

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32. The learned 1^st appellate court also considered the materials placed on record and held in paragraph 27 and 28 as under: -

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“27. The learned trial court has fully discussed all the evidences in detail and on considering the same in his detailed judgment, has decided issue no. 4 in favour of the plaintiff giving his findings that the plaintiff has got exclusive right, title and possession over 2 annas 8 pie share over the disputed tank and he is legally entitled to a decree for permanent injunction against defendant nos. 1 to 4 as claimed by him. The learned court below has also decided other issues in favor of the plaintiff and has decreed the suit.

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28. All the findings of the learned court below are based on legal evidences and are thus well founded. It has been held in a decision reported in 1983 BBCJ Page 33 (SC) by the Hon’ble Supreme Court that if the finding of the trial court is based on legal evidences, the same should not be interfered by the appellate court.”

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33. This Court find that the Hon’ble Supreme Court in the judgment reported in (2008) 4 SCC 594 (supra) paragraph 21 has summarized the

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position with regard to suit for prohibitory injunction related to immovable property in the following manner: -

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“ 21. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:

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(a) Where a cloud is raised over the 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.

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(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]. 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.

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(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 straightforward, 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

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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.”

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34. In the aforesaid judgment, the Hon’ble Supreme Court clearly held that a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title. The Hon’ble Supreme Court has also observed that 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.

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35. This Court finds that there was serious dispute in connection with right, title and interest over the suit property and both the parties were claiming right, title and interest based on registered documents and one of the registered documents dated 19.03.1976 in favor of defendant no. 3 was declared to be a manufactured document, although no such relief was sought for in the plaint and the validity of registered documents dated 19.03.1976 was also decided while deciding the title of the plaintiff over the suit property. Admittedly, neither any issue was framed by the learned trial court nor any point of determination was framed by the learned 1^st appellate court, so far as the title over the property is concerned.

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36. This Court is of the view that the present case will fall under paragraph 21(c) of the aforesaid judgment reported in (2008) 4 SCC 594 (supra) . So far as paragraph 21(d) is concerned, the same is not attracted in view of the fact that the matter of title in the present case does not involve simple and straightaway question regarding title and it is not a case where the plaintiff had a clear title over the suit property. The entire

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narration of the claim of the parties and the evidences placed on record reveal that there was complicated question of title involved in the case. Moreover, no issue was framed in connection with the title and while deciding the title one of the sale deeds dated 19.03.1976 in favor of defendant no. 3 was also declared to be a manufactured document, although no such relief was sought for in the plaint.

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37. In view of the aforesaid facts and circumstances, this Court is of the considered view that considering the relief of injunction prayed for in the plaint, it was not open to the plaintiff, and for that matter the court, to examine the question of title which was of a complicated nature. This is also apparent from the fact that in order to come to a finding that the plaintiff has title over the property, the registered sale deed executed in favuor of defendant no. 3 was also declared to be a manufactured document, which was not the relief prayed for in the suit. Accordingly, 1^st substantial question of law is decided in favor of the appellant and against the respondents .

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38. So far as 2^nd substantial question of law is concerned, having held that the suit included complicated question of title, this Court is of the view that the suit seeking permanent injunction without seeking a declaration of title was not maintainable. The 2^nd substantial question of law is accordingly decided in favor of the appellant and against the respondents .

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39. So far as the 3^rd substantial question of law is concerned, the plaintiff had claimed only limited share in the property i.e. 2 annas 8 pies and in the decree the defendants 1 to 4 were restrained through a permanent injunction from catching fishes and exercising all acts of ownership over the disputed Tank, in absence and without due notice and consent of the plaintiff in writing. It was also directed that the defendant no. 1 to 4 shall put Jira and catch fishes in the disputed Tank according to their shares with due notice and consent of the plaintiff in writing.

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Consequently, even the defendants will have to seek permission and consent of the plaintiff while exercising their right over the remaining portion of the tank. Thus, relief of injunction exceeded the share of the tank claimed by the plaintiff which was only to the extent of 2 annas 8 pies. The plaintiff claimed a limited share in the tank there was no scope for the plaintiff to seek the declaration of permanent injunction with respect to the balance of the property. The 3^rd substantial question of law is accordingly answered. However, while deciding the substantial question of law no. 1 and 2, this court has held that the suit itself was not maintainable without seeking a relief for declaration of title, the 3^rd substantial question of law loses its relevance altogether .

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40. In view of the aforesaid findings, the judgment and decree passed by the 1^st appellate court and the trial court are hereby set-aside.

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41. Accordingly, this appeal is allowed .

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42. Pending I.A., if any, is closed.

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43. Let a copy of this order be communicated to the court concerned through ‘e-mail/FAX’.

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(Anubha Rawat Choudhary, J.)

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