SRI. K.M. KRISHNA REDDYversusSRI. VINOD REDDY & ANR.

                  [2023] 13 S.C.R. 210 : 2023 INSC 877



                             CASE DETAILS

                      SRI. K.M. KRISHNA REDDY
                                      v.
                      SRI. VINOD REDDY & ANR.
                      (Civil Appeal No. 4471 of 2010)
                            OCTOBER 06, 2023
          [ABHAY S. OKA AND PANKAJ MITHAL, JJ.]
                              HEADNOTES
      Issue for consideration: When in a suit simpliciter for a perpetual
injunction based on title, the defendant pleads perfection of his title by
adverse possession against the plaintiff or his predecessor, is it necessary
for the plaintiff to claim a declaration of ownership.
      Suit – For perpetual injunction based on title – Perfection of title
by adverse possession pleaded by defendant – If necessary for plaintiff
to claim a declaration of title:
       Held: Respondents admitted the ownership of the appellant’s father
through whom the appellant claimed title – Even going by the respondents'
case, the appellant was the co-owner of the property, and the respondents
admittedly had no title in respect of the suit property – Thus, there was no
issue involved about the title of the plaintiff and his father – It is not as if
the respondents had set up a title in themselves or were claiming through
somebody who was claiming the title – Their plea was of adverse possession
against the appellant, which presupposes that the appellant was the owner
– When in a suit simpliciter for a perpetual injunction based on title, the
defendant pleads perfection of his title by adverse possession against the
plaintiff or his predecessor, it cannot be said that there is any dispute about
the title of the plaintiff – Hence, the plaintiff need not claim a declaration of
title in such a case as the only issues involved in such a suit are whether the
plaintiff has proved that he was in possession on the date of the institution of
the suit and whether the defendant has proved that he has perfected his title
by adverse possession – Therefore, in the present case, it was not necessary
for the appellant to claim a declaration of ownership – There was no cloud on
                                       210
SRI. K.M. KRISHNA REDDY v. SRI. VINOD REDDY & ANR. 211


his title – Therefore, the suit, as originally filed, was maintainable – Burden
was on the respondents to prove their plea of adverse possession, as there was
a counter-claim (which is in the nature of a cross-suit) seeking a declaration
of ownership based on adverse possession – High Court decided only one
issue as to whether the amendment sought by the appellant for a prayer for
declaration of ownership and possession, was barred by limitation – As the
High Court did not consider the merits of the suit and counter-claim, regular
second appeal remanded to the High Court – Impugned judgment set aside
– Regular Second Appeal restored to the file of the High Court – Adverse
Possession. [Paras 14, 16, 18, 20 and 21]
     Adverse Possession – Plea of – When defeated – Two alternative
pleas – Suit for perpetual injunction based on title filed by the
appellant, respondents pleaded perfection of title by adverse possession
– Respondents though admitted the title of the appellant’s father to
the suit property, they disputed that the suit property was allotted to
appellant’s share under the family settlement and claimed that the
appellant’s brother ‘J’ was the allottee of the suit property in partition
and respondents’ mother was put in possession of the suit property by ‘J’
in part performance of the agreement for sale in favour of their mother:
      Held: This contention completely militates against the plea of adverse
possession as it completely defeats the plea of adverse possession – This
contention shows that the respondents are not claiming hostile possession,
which is an essential ingredient of a plea of adverse possession – At the trial
stage, the respondents ought to have elected one of the two alternative pleas
– However, issues framed by the Trial Court indicate that the respondents
relied upon their plea of adverse possession as well as their plea based on the
agreement for sale executed by the said ‘J’ – Further, the deed of partition
pleaded by the respondents, based on which, according to them, ‘J’ became
the owner, was admittedly not proved – In fact, in the written statement, the
bare particulars of the partition on the basis of which ‘J’ became the owner
were not even pleaded by the respondents. [Para 13]

       LIST OF CITATIONS AND OTHER REFERENCES

    Anathula Sudhakar v. P. Buchi Reddy (dead) by Lrs. and Others (2008)
4 SCC 594 : [2008] 5 SCR 331 – relied on.
212           SUPREME COURT REPORTS                          [2023] 13 S.C.R.



       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4471 of 2010.
    From the Judgment and Order dated 10.02.2010 of the High Court of
Karnataka at Bangalore in RSA No.1361 of 2007.
      Appearances:
      Rohan Dewan, Balaji Srinivasan, Advs. for the Appellant.
     Amit Anand Tiwari, Ms. Shakun Sharma, Ms. Devyani Gupta, Ms.
Tanvi Anand, Anirudh Singh, Advs. for the Respondents.

       JUDGMENT / ORDER OF THE SUPREME COURT

                                JUDGMENT
      ABHAY S. OKA, J.
      FACTUAL ASPECTS
      1. The original plaintiff has preferred this appeal for challenging the
judgment of the High Court in a second appeal by which the High Court has
interfered and has set aside the decree passed by the first Appellate Court.
      PLAINT
      2. The appellant filed a suit for a perpetual injunction in respect of the
immovable property more particularly described in the schedule to the plaint
(for short, ‘the suit property’). According to the appellant, he and his brothers
succeeded to the suit property after the demise of his father. He claimed
that the suit property was allotted to his share under a family settlement
dated 25th April 1993, executed by and between him and his brothers. The
appellant claims to be in exclusive possession of the suit property. The suit
is founded on the cause of action that on 18th June 1994, the respondents
tried to interfere with his possession of the suit property. Therefore, a suit
simpliciter for injunction was filed by him.
      WRITTEN STATEMENT CUM COUNTER-CLAIM
     3. The respondents-defendants filed a written statement cum counter-
claim accepting that the suit property was originally owned by Sri.
SRI. K.M. KRISHNA REDDY v. SRI. VINOD REDDY & ANR. 213
                 [ABHAY S. OKA, J.]

Muniswamappa, the late father of the appellant. The respondents’ contention
in the written statement was that they, along with their family members,
were continuously in possession of the suit property from 1978 and were
storing firewood, bricks, and manure. According to their case, they have
been uninterruptedly using the suit property since 1978, and they have done
so with the knowledge of the appellant, his father and their other family
members, including his brother M. Jayarama Reddy (for short, ‘Jayarama’).
Therefore, the respondents claimed that they had perfected the title to the
suit property by adverse possession.
      4. Another contention raised by the respondents was that in the partition
which took place after the death of the appellant’s father, the suit property
was allotted to the share of Jayarama. In October 1983, the said Jayarama
approached their mother and stated that if consideration was paid to him,
the respondents could absolutely enjoy the suit property. According to the
respondents, their mother paid a sum of Rs.5,500/- as a consideration to
Jayarama who executed an agreement for sale in favour of their mother.
It was also contended that in part performance for the agreement for sale,
the respondents’ mother was put in possession of the suit property. It was
contended in the written statement that the appellant had filed a suit in
collusion with his brother Jayarama.
      5. A counter-claim was made by the respondents claiming a declaration
that they have perfected their title to the suit property by way of adverse
possession. They also claimed that the family settlement dated 25th April
1993, relied upon by the appellant was void and non-est.
     AMENDMENT OF PLAINT
      6. The appellant applied on 11th November 1997, to amend the plaint
for incorporating paragraph 4(a) and a prayer for declaration of ownership
and possession. The Trial Court allowed the amendment by the order dated
04th June 1998. After the amendment was allowed, the respondents filed
an additional written statement, contending that the appellant could not
improve his case by amendment.
     FINDINGS OF THE COURTS
     7. The Trial Court dismissed the suit and decreed the counter-claim.
In an appeal preferred by the appellant, the District Court interfered and
214           SUPREME COURT REPORTS                         [2023] 13 S.C.R.


decreed the suit filed by the appellant. In a second appeal preferred by the
first respondent, the High Court interfered by holding that the amendment
incorporating the prayer for declaration was barred by limitation and that
the same would not relate back to the date of institution of the suit. Hence,
the High Court dismissed the suit. The High Court did not consider any
other issue.
      SUBMISSIONS
       8. The submission of the learned counsel for the appellant was that
all the material particulars regarding the appellant’s title were already
incorporated in the plaint as originally filed, and only by way of abundant
caution was the amendment made to include a prayer for declaration of
title. His submission is that the prayer was already implicit in the plaint
as originally filed. He submitted that though the respondents admitted the
appellant’s title, without examining whether the respondents had established
their plea of adverse possession, the High Court had erroneously interfered
with the decree of the first appellate Court by dismissing the suit.
      9. The learned counsel appearing for the respondents urged that the
cause of action pleaded in the plaint as filed initially arose on 18th June 1994.
He urged that as there was a serious dispute about the appellant’s title, the
suit was not maintainable without seeking a declaration of title. He pointed
out that the application for amendment was moved on 11th November 1997,
after the expiry of the period of limitation provided under Article 58 of the
Limitation Act, 1963 (for short, ‘Limitation Act’). He submitted that the
suit must fail once the amendment is held as time barred.
      CONSIDERATION OF SUBMISSIONS
      10. We have considered the submissions. As can be seen from the
original plaint and the averments made in paragraph 3, the suit was founded
on the title, as the appellant has set out on what basis he was claiming
absolute ownership. There is an allegation that respondents have no title
and no right to interfere with the appellant’s possession.
     11. In paragraph 9 of the written statement cum counter-claim filed
by the respondents, it was specifically admitted that the appellant’s father
owned the suit property. It was urged that the respondents’ father and,
thereafter, the respondents were in open and peaceful possession of the suit
SRI. K.M. KRISHNA REDDY v. SRI. VINOD REDDY & ANR. 215
                 [ABHAY S. OKA, J.]

property from 1978 and have perfected their title by adverse possession. An
inconsistent plea was taken that the appellant’s brother Jayarama had got the
suit property in partition and that there was an agreement for sale executed
by the said Jayarama in favour of their mother. In fact, they claimed that
their mother was put in possession of the suit property in part performance
of the agreement.
      12. Thus, the respondents admitted the title of the appellant’s father
to the suit property. What was disputed by the respondents was the claim
of the appellant that the suit property was allotted to his share under the
family settlement dated 25th April 1993. Thus, even if the document of
family settlement is ignored, the appellant was one of the co-owners of the
suit property after the demise of his father. Though the respondents claimed
that the appellant’s brother Jayarama was the allottee of the suit property
in partition, the respondents did not prove the partition. They could not
establish that the suit property came to the share of the said Jayarama. At the
highest, the respondents proved that under an agreement for sale executed by
Jayarama, their mother paid consideration to the said Jayarama. However,
in the written statement cum counter-claim, there is a specific pleading that
is as under:
     “Despite the fact that the defendants have perfected their right by
     way of adverse possession, on the advice of some of the well wishers
     their mother has paid a sum of Rs. 5,500/- towards full consideration
     to the property and M.Jayarama Reddy entered into an Agreement
     of Sale and consented for continuing the possession and possession
     was accepted in the said agreement. It is also made clear that as a part
     performance of the agreement to sell, the defendant’s mother has been
     put in possession of the same.”
                                                        (underlines supplied)
      13. Thus, the stand is that their mother was put in possession of the
suit property by Jayarama in part performance of the agreement for sale.
This contention completely militates against the plea of adverse possession
as this contention completely defeats the plea of adverse possession. The
reason is that this contention shows that the respondents are not claiming
hostile possession, which is an essential ingredient of a plea of adverse
possession. In fact, at the trial stage, the respondents ought to have elected
216            SUPREME COURT REPORTS                          [2023] 13 S.C.R.


one of the two alternative pleas. However, issues framed by the Trial Court
indicate that the respondents relied upon their plea of adverse possession
as well as their plea based on the agreement for sale executed by the said
Jayarama. Thus, going by the stand taken in the written statement of the
respondents, they admitted that the appellant’s father was the owner of the
suit property. After the demise of his father, the appellant became one of
the co-owners along with his brothers. The deed of partition pleaded by
the respondents, based on which, according to them, Jayarama became the
owner, has admittedly not been proved. In fact, in the written statement,
the bare particulars of the partition on the basis of which Jayarama became
the owner were not even pleaded by the respondents. The relevant part of
the pleadings is as follows:
       “The defendants submit that pursuant to the death of Muniswamappa,
       the plaintiff and his brothers have partitioned their properties and the
       property in question was allotted to M.Jayaram Reddy though he was
       not in possession.”
      14. Hence, the respondents admitted the ownership of the appellant’s
father through whom the appellant claims title. Even going by the
respondents’ case, the appellant was the co-owner of the property, and the
respondents admittedly had no title in respect of the suit property. Therefore,
there was no dispute about the appellant’s title as pleaded in the suit. The
issue was whether the plea of adverse possession defeated that title. The
burden of proving the plea of adverse possession was on the respondents. The
burden on the appellant was to prove his possession on the date of the suit.
     15. The question is whether it was necessary for the appellant to claim
a declaration of title. On this aspect, a decision of this Court in the case of
Anathula Sudhakar Vs. P. Buchi Reddy (dead) by Lrs. And Others1 is
relevant. Para 13 and 14 of the said decision read thus:
       “13. The general principles as to when a mere suit for permanent
       injunction will lie, and when it is necessary to file a suit for declaration
       and/or possession with injunction as a consequential relief, are well
       settled. We may refer to them briefly.


1     (2008) 4 SCC 594
SRI. K.M. KRISHNA REDDY v. SRI. VINOD REDDY & ANR. 217
                 [ABHAY S. OKA, J.]

   13.1. Where a plaintiff is in lawful or peaceful possession of a property
   and such possession is interfered or threatened by the defendant, a suit
   for an injunction simpliciter will lie. A person has a right to protect
   his possession against any person who does not prove a better title by
   seeking a prohibitory injunction. But a person in wrongful possession
   is not entitled to an injunction against the rightful owner.
   13.2. Where the title of the plaintiff is not disputed, but he is not
   in possession, his remedy is to file a suit for possession and seek
   in addition, if necessary, an injunction. A person out of possession,
   cannot seek the relief of injunction simpliciter, without claiming the
   relief of possession.
   13.3. 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 a 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.
   14. We may, however, clarify that a prayer for declaration will be
   necessary only if the denial of title by the defendant or challenge
   to the plaintiff’s title raises a cloud on the title of the plaintiff to
   the property. A cloud is said to raise over a person’s title, when
   some apparent defect in his title to a property, or when some prima
   facie right of a third party over it, is made out or shown. An action
   for declaration, is the remedy to remove the cloud on the title to
   the property. On the other hand, where the plaintiff has clear title
   supported by documents, if a trespasser without any claim to title or
   an interloper without any apparent title, merely denies the plaintiff’s
   title, it does not amount to raising a cloud over the title of the plaintiff
   and it will not be necessary for the plaintiff to sue for declaration and
   a suit for injunction may be sufficient. Where the plaintiff, believing
   that the defendant is only a trespasser or a wrongful claimant without
   title, files a mere suit for injunction, and in such a suit, the defendant
   discloses in his defence the details of the right or title claimed by
218           SUPREME COURT REPORTS                            [2023] 13 S.C.R.


      him, which raise a serious dispute or cloud over the plaintiff’s title, then
      there is a need for the plaintiff, to amend the plaint and convert the suit
      into one for declaration. Alternatively, he may withdraw the suit for bare
      injunction, with permission of the court to file a comprehensive suit
      for declaration and injunction. He may file the suit for declaration with
      consequential relief, even after the suit for injunction is dismissed, where
      the suit raised only the issue of possession and not any issue of title.”
                                                           (underlines supplied)
      16. It is obvious that there was no issue involved about the title of the
plaintiff and his father. It is not as if the respondents had set up a title in
themselves or were claiming through somebody who was claiming the title.
Their plea was of adverse possession against the appellant, which presupposes
that the appellant was the owner. When in a suit simpliciter for a perpetual
injunction based on title, the defendant pleads perfection of his title by adverse
possession against the plaintiff or his predecessor, it cannot be said that there is
any dispute about the title of the plaintiff. Hence, the plaintiff need not claim
a declaration of title in such a case as the only issues involved in such a suit
are whether the plaintiff has proved that he was in possession on the date of
the institution of the suit and whether the defendant has proved that he has
perfected his title by adverse possession. Therefore, in the case at hand, it was
not necessary for the appellant to claim a declaration of ownership. There was
no cloud on his title. Therefore, the suit, as originally filed, was maintainable.
     17. Only two questions were required to be dealt with. The first was
whether the appellant had established that he was in possession of the suit
property on the date of the institution of the suit. If the appellant fails to
prove this issue, the suit will be liable to be dismissed. The burden was on the
respondents to prove their plea of adverse possession, as there was a counter-
claim seeking a declaration of ownership based on adverse possession. The
counter-claim is in the nature of a cross-suit.
     18. The High Court has decided only one issue: whether the amendment
was barred by limitation. Therefore, in view of the above conclusion, the High
Court will have to decide the other issues.
     19. There were two substantial questions of law framed by the High
Court, which read thus:-
SRI. K.M. KRISHNA REDDY v. SRI. VINOD REDDY & ANR. 219
                 [ABHAY S. OKA, J.]

      “1.   Whether the appellate court was justified in reversing the judgment
            and decree passed by the trial court without considering the aspect
            of limitation?
      2.    Whether in the facts and circumstances of the case of appellate
            court was justified in reversing the judgment and decree passed
            by the trial court based on Exbhit P-1?”
      We agree with the High Court that the amendment was barred by
limitation, considering the date of the cause of action pleaded and the date of
applying for amendment. It was not the case of the respondents that the suit as
originally filed was barred by limitation. Therefore, the first question does not
survive. The second question, as framed, is not a substantial question of law.
     20. As the High Court has not considered the merits of the suit and
counter-claim, we propose to remand the regular second appeal to the High
Court.
      21. Hence, appeal is partly allowed. The impugned judgment dated 10th
February 2010, is set aside, and Regular Second Appeal No. 1361 of 2007
is restored to the file of the High Court. Since the appeal is of 2007, which
was admitted for final hearing, we direct the High Court to frame additional
substantial questions of law by exercising power under the proviso of sub-
Section (5) of Section 100 of the Code of Civil Procedure, 1908. The High
Court shall proceed to decide the Regular Second Appeal in accordance with
the law. Except for the issue of amendment of the plaint being barred by the
limitation, all other issues are left open to be decided by the High Court.
     22. Normally, this Court should never fix a time-bound schedule for
disposal of a case pending before High Courts, which are Constitutional
Courts. But, in this case, the Regular Second Appeal is of 2007. Therefore,
the High Court shall give necessary out-of-turn priority to the disposal of the
Regular Second Appeal. We direct the parties to this appeal to appear before
the concerned roster Bench of the Karnataka High Court on 30th October
2023, at 10.30 a.m., for fixing a date for hearing
      23. No order as to costs.


Headnotes prepared by:                                      Appeal partly allowed.
Divya Pandey