whether, in a suit for injunction simpliciter, the Court can decide and declare title; whether validity of patta can be adjudicated without challenge; and whether the Appellate Court can declare title without any issue. (Para 13) It is settled legal position that in a suit for injunction simpliciter, possession is the primary issue and title is not directly and substantially in issue. Title may be incidentally gone into only where de jure possession depends upon title, but even then, a finding on title cannot be recorded in the absence of necessary pleadings, appropriate issue and evidence. (Paras 19, 20) In the present case, there were no necessary pleadings regarding title, no appropriate issue was framed, and parties were not called upon to lead evidence on title. The First Appellate Court, however, decided and declared title of both parties and granted injunction even in favour of the defendant without any counter claim. Such exercise is contrary to settled principles laid down by the Hon’ble Supreme Court. (Paras 16, 21)

advocatemmmohan

Civil Procedure Code, 1908 — Section 100 — Second Appeal — Suit for permanent injunction simpliciter — Scope of enquiry into title — First Appellate Court deciding and declaring title of parties without pleadings, without issue and without counter claim — Legality — Held, impermissible — Judgment of First Appellate Court set aside — Matter remitted for fresh disposal. (Paras 13 to 23)

Suit for bare injunction — Issue primarily relates to possession — Title not directly and substantially in issue — Finding on title cannot be recorded in absence of necessary pleadings and framed issue — Exception carved out only where de jure possession depends upon title and pleadings and evidence justify such adjudication — Reiterated. (Paras 19 to 21)

First Appellate Court — Power under Section 96 CPC — Cannot travel beyond scope of pleadings and issues — Grant of declaratory relief and injunction in favour of defendant without counter claim — Unsustainable. (Paras 16, 21, 22)

Precedents — Anathula Sudhakar v. P. Buchi Reddy — T. V. Ramakrishna Reddy v. M. Mallappa — Principles governing suits for injunction simpliciter — Followed. (Para 19)

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JUDGMENT

This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 05.02.2001 in A.S.No.26 of 1998 passed by the learned Senior Civil Judge, Hindupur, whereby the judgment and decree dated 15.12.1997 in O.S.No.399 of 1998 passed by the learned Junior Civil Judge, Hindupur, were reversed. (Paras 1 to 3)

The suit was filed for permanent injunction restraining interference with possession of the schedule property. The trial Court decreed the suit on the finding that the plaintiff was in possession of the suit schedule property. (Paras 2, 10, 15)

In appeal, the First Appellate Court, on appreciation of evidence, held that the plaintiff was entitled to site measuring 30 x 25 feet on the western side of Plot No.165 under Ex.A-1 and that the defendant was entitled to site measuring 25 x 30 feet towards eastern side in Plot No.165-A under Ex.B-1, and granted injunctions in favour of both parties respectively. (Para 11)

The substantial questions of law framed in the Second Appeal were whether, in a suit for injunction simpliciter, the Court can decide and declare title; whether validity of patta can be adjudicated without challenge; and whether the Appellate Court can declare title without any issue. (Para 13)

It is settled legal position that in a suit for injunction simpliciter, possession is the primary issue and title is not directly and substantially in issue. Title may be incidentally gone into only where de jure possession depends upon title, but even then, a finding on title cannot be recorded in the absence of necessary pleadings, appropriate issue and evidence. (Paras 19, 20)

In the present case, there were no necessary pleadings regarding title, no appropriate issue was framed, and parties were not called upon to lead evidence on title. The First Appellate Court, however, decided and declared title of both parties and granted injunction even in favour of the defendant without any counter claim. Such exercise is contrary to settled principles laid down by the Hon’ble Supreme Court. (Paras 16, 21)

Therefore, the judgment and decree of the First Appellate Court are liable to be set aside and the matter remitted for fresh consideration in accordance with law. (Para 22)

Resultantly, the Second Appeal is allowed. The judgment and decree in A.S.No.26 of 1998 are set aside. The matter is remitted to the learned First Appellate Court to dispose of the appeal afresh, after hearing both sides, preferably within three months from the date of receipt of a copy of the judgment. There shall be no order as to costs. Pending interlocutory applications, if any, stand closed. (Para 23)