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When the lower appellate court was of the opinion that the said issues need reconsideration in the b

JOSE VS JOHNSON CIVIL APPEAL NO. 1892 OF 2020

“In the backdrop of the contentions put forth, though there could be no cavil to the position relating to the relevance of possession being the prime consideration in a bare suit for injunction, each case will have to be examined on its own merits keeping in view the nature of the pleading put forth before the trial court and the understanding of the case with which the parties have gone to trial. If this aspect is kept in view the very nature of the plaint averments would indicate that the parties to the suit are related to each other and the property which was being commonly enjoyed by their predecessors was partitioned under the Deed No.2617/2007. The present dispute had arisen when the plaintiff was seeking to put up a construction of the wall and the defendants had objected to the same”

The judgment was pronounced by justice INDIRA BANERJEE and A.S. BOPANNA on March 02, 2020

Facts

The disputed property was jointly owned and enjoyed by the ancestors of the parties. The parties acquired the property by way of partition. The cause for the suit was stated to be the obstruction caused by the defendants when the plaintiff was in the process of constructing a wall on the eastern side. The plaintiff, prayed for permanent prohibitory injunction. The trail court passed decree in favor of plaintiff. The same was confirmed by the High Court and defendant preferred the current appeal in Apex Court.

Contention

The appellant contentions put forth in the suit would indicate that the very claim to the property relating to the portion wherein the wall was being constructed was disputed by the defendant and in that light when appropriate issues were framed by the trial court, the manner in which the wall was being constructed cannot be considered as being on a property where the plaintiff was in lawful settled possession.

The respondent contend that the law is well established that in a suit for bare injunction the proof of title would not be necessary and the relevant circumstance would only be the possession relating to the property.

Basing on the above contentions the following issues are raised

  1. whether plaint schedule property is identifiable?

  2. whether plaintiff is in ownership and possession of property?

  3. whether suit is bad for non ­joinder of necessary parties?

  4. whether cause of action alleged is true and correct?

  5. whether plaintiff is entitled for injunction as prayed for?

  6. Reliefs and costs.

The issues No 1 and 2 relates to ownership and possession of the property. The trial court after taking evidence held that plaintiff has a valid title and possession of property.The plaintiff did not object to the said issues nor did the plaintiff file any application under Order 14 Rule 5 CPC seeking amendment or to strike out the said issues. On the other hand, the evidence was tendered based on the issues and the Issue Nos.1 and 2 were considered by the trial court and was answered in favor of the plaintiff wherein it is held that the plaintiff is in ownership and possession of the plaint schedule property. In that background when the defendant had questioned such conclusion reached by the trial court and had put forth the contention and also sought for an opportunity to produce additional evidence by filing an application under Order 41 Rule 27 CPC and in that background when the lower appellate court was of the opinion that the said issues need reconsideration in the background of the additional evidence and opportunity being provided to the defendant the appropriate course was to remand the matter to the trial court and provide opportunity which was accordingly done.

The court held that, in view the observations made by the High Court relating to the consideration required being only of possession since the suit was for perpetual injunction is without reference to the nature of contentions put forth in a suit, the issues that had been raised for consideration and the conclusion that had been reached by the trial court as also the lower appellate court in that background.

“Hence, we are of the opinion that in the facts and circumstance of the present case the High Court was not justified, but the conclusion of the lower appellate court to set aside the judgment and decree of the trial court and remand the matter for reconsideration by the trial court was the appropriate course. The appeal is accordingly allowed. In the facts and circumstances of the case, the parties to bear their own costs. Pending application, if any, shall stand disposed of.”

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– Aarthy.K

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