RAMAIAH Vs. G. KUPPU SWAMY AND ORS.

JUDGEMENT

(1.) HEARD the counsel for the appellant. The appellant was the defendant before the trial court in a suit for permanent injunction. It was the case of the plaintiffs that they had purchased the suit schedule property from one Muniyamma, the mother of the defendant under a registered sale deed dated 24.5.2001 Muniyamma is said to have entered into an agreement with M/s. Keerti Enterprises in respect of land bearing Survey No. 83/3 of Thanisandra village. The plaintiffs are said to have purchased the suit property under a sale deed executed by Muniyamma and that they were put in possession under the very sale deed. The defendant however sought to lay claim over the suit schedule property and sought to trespass, on the same at which point of time a suit for injunction was filed. On service of suit summons, the defendant entered appearance and filed written statement to contend that the land bearing Survey No. 83/3, measuring 2 acres 12 guntas was jointly purchased by the defendant and his mother Muniyamma under a registered sale deed dated 13.6.1973 from one Akkayyamma. That after purchasing the suit schedule property, the defendant and his mother Muniyamma continued to be the joint owners of the suit schedule property. Even if the plaintiff was setting up a sale deed that was void ab initio, as the property was demonstrated with reference to the sale deed dated 13.6.1973, which was produced and marked as Exhibit D.1 and which clearly indicated that the defendant alongwith his mother were the joint owners of the property, Muniyamma by herself could not have executed the sale deed nor put the plaintiff in possession of the suit schedule property and hence, there was a cloud on the title of the plaintiff and the suit for permanent injunction was not maintainable. It is on those pleadings that the court below had framed the following issues:

(2.) WHETHER the plaintiffs further prove illegal interference made by the defendant in their possession over the suit schedule property -

(3.) THE learned Counsel would particularly draw attention to Paragraph 11.3, wherein the apex court has held that where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under cloud or in dispute and he is not in possession or not able to establish possession, necessarily, the plaintiff will have to file a suit for declaration, possession and injunction. This the learned Counsel would submit is the established principle of law, which the court below has completely overlooked, when admittedly, the suit schedule property was a vacant site and the plaintiff was obviously not in possession of the same, coupled with the circumstance that when the title deed was, on the face of it, invalid, the plaintiff ought to have been relegated to a comprehensive suit and the grant of relief therefore results in a miscarriage of justice to the appellant and therefore seeks that the judgment and decree be set aside.