2026 INSC 61

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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6075 OF 2016

SANJAY PALIWAL AND ANOTHER ...APPELLANT(S)

VERSUS

BHARAT HEAVY ELECTRICALS LTD.

THROUGH ITS EXECUTIVE DIRECTOR …RESPONDENT (S)

J U D G M E N T

ARAVIND KUMAR , J.

1. The Appellants before this Court are the unsuccessful Plaintiffs in a suit

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for

Mandatory Injunction, and the Respondent is the Defendant in the suit. (The

parties hereinafter are referred to by their respective ranks in the suit). The

Trial Court

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decreed the Suit filed by the Plaintiffs and the First Appellate

Court

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confirmed the judgement and decree of the Trial Court and dismissed

the Appeal

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filed by the Defendant. Aggrieved by the concurrent judgment

and decree of the Trial Court and the First Appellate Court, the Defendant

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O.S. No. 27 of 1994. Hereinafter referred to as ‘the Suit’.

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COURT OF II ADDITIONAL CHIEF JUDICIAL MAGISTRATE/ADDITIONAL

CIVIL JUDGE, HARIDWAR.

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COURT OF DISTRICT JUDGE, HARIDWAR PRESIDING OFFICER: SHRI V.K.

JAIN.

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Civil Appeal No. 33/2001.

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filed a Second Appeal

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before the High Court

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, which came to be allowed

by judgment and decree dated: 07.08.2012 and dismissed the suit of the

Plaintiffs. Hence the Plaintiffs have filed this Appeal.

BRIEF FACTS:

2. The case of the Plaintiffs is as follows:

2.1. The plaintiffs, partners in Vaishali Builders, had purchased a parcel of

land measuring 15 Biswa, Khewat No. 8/4, Khatauni No. 36, Khasra

No. 436, situated in Ahmedpur Karachh, Jwalapur, District Haridwar

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,

through a registered sale deed dated 06.01.1992 from the previous

owners, Laxminarayan Jha (zamindar/landholder) and Bashir Khan

(cultivating tenant of Shreni-3). After the purchase, the plaintiffs’ firm

name was duly mutated in the revenue records, and they had remained

in ownership and possession of the lands since then.

2.2. The disputed land was depicted as ABCD in the site map attached to

the plaint (which is noted herein below), with specified measurements

i.e. ABCD is 690 “Kari” and length of AC and BD is 26 “Kari”. It was

bounded on the north, south, and west by lands belonging to the

defendant and others, while a pucca road lay on the eastern side.

Plaintiffs claimed access to this road has been essential for the

plaintiffs’ use and enjoyment of their land.

2.3. The dispute arose when the defendant constructed a boundary wall

along the pucca road, specifically between points C and D, which

blocked the plaintiffs’ access. The plaintiff’s had repeatedly requested

the defendant to remove the obstruction, but the defendant refused,

thereby giving rise to the cause of action. According to the plaintiffs,

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Second Appeal No. 32 of 2004.

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High Court of Uttarakhand at Nainital.

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Hereinafter referred to as the Disputed Land.

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the defendant did not have the right to construct such a wall in a manner

that obstructed their approach to the road.

2.4. Consequently, the plaintiffs filed a suit before the competent court at

Haridwar seeking a decree of mandatory injunction directing the

defendant to remove the boundary wall between points C and D, or for

the court to arrange its removal if the defendant failed to comply. The

suit had been valued at Rs. 500/- as per the estimated cost of removal,

and the requisite court fees was paid thereon. The plaintiffs also sought

costs of the suit and any other relief the court deemed appropriate.

3. On notice, the Defendant appeared in the matter contested the case,

contending as follows:

3.1. The defendant admitted only that its boundary wall had existed for

about thirty years and meets the road on the west. It was asserted that

the plaintiffs have no cause of action, and that the plaintiffs have neither

possession nor any right over the disputed land, which has allegedly

been within the defendant company’s territory for decades. The

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defendant contended that the wall complained of has existed for around

thirty years and that the plaintiffs’ suit for injunction is not

maintainable. It was further argued that the plaintiffs’ partnership firm

is unregistered, attracting the bar of Section 69 of the Partnership Act.

3.2. The defendant also disputed the plaintiffs’ title, contending that

Laxminarayan Jha and Bashir Khan were neither owners nor cultivators

of the land marked ABCD, and the alleged sale deed dated 06.01.1992

is false. According to the defendant, the disputed land was acquired by

the State Government for its establishment and possession was

officially handed over to the company, therefore, neither the plaintiffs

nor their alleged predecessors ever had ownership or possession over

the same. The defendant alleged the map filed with the plaint is

incorrect, contending that Khasra No. 436 is much larger than claimed,

and argued that an injunction suit is barred under Section 41(h) of the

Specific Relief Act because an alternative remedy of seeking

possession is available.

4. The trial court after framing issues and evaluating the evidence tendered by

both the parties, vide Judgment and Decree dated: 22.03.2001, decreed the

suit filed by the Plaintiffs for the following reasons:

4.1. Primarily on the finding that plaintiffs had successfully established

their title and possession over the disputed land forming part of Khasra

No. 436, Khewat No. 8/4. The plaintiffs proved their ownership

through a registered sale deed dated 06.01.1992 and it was supported

by revenue records, including Khatauni and Khasra entries. The oral

testimony of PW-1, coupled with documentary evidence, revealed that

possession was delivered at the time of sale and continued thereafter.

Crucially, the reports of the Revenue Inspector, Amin, and Local

Commissioner consistently identified the disputed portion (marked in

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light red) as belonging to the plaintiffs, thereby corroborating their case

and negating the defendant’s plea of exclusive possession.

4.2. Secondly, the Court rejected the defendant’s claim that disputed land

had been acquired by the State and was in the possession of the

defendant company. The defendant’s own witness made admissions

that portions of Khasra No. 436 were not in the possession of the

defendant and that adjoining lands such as Khasra Nos. 433 and 435

were distinct. These admissions, read with the Amin’s affirmed report

and revenue records, clearly established that plaintiffs’ land was not

part of the road or acquired area. The Court therefore held that plaintiffs

were owners in possession and the defendant had unlawfully raised a

boundary wall on the eastern side, obstructing the plaintiffs’ access to

the road.

4.3. Thirdly, the objection regarding maintainability of suit raised under

Section 69 of the Partnership Act was repelled. Although the firm

Vaishali Builders was admittedly unregistered, the Court held that suit

was not based on enforcement of a contractual right but was a common

law action seeking protection of property rights by way of mandatory

injunction. Relying on settled legal principles, the Court concluded that

suit filed by partners of an unregistered firm was maintainable.

Consequently, the statutory bar under Section 69 was held inapplicable,

and the issue was decided in favour of the plaintiffs.

4.4. Finally, on the issues relating to relief of mandatory injunction and bar

under Sections 38 and 41 of the Specific Relief Act, the trial court

found that plaintiffs’ right to access to public road was essential for the

enjoyment and utility of their property. Evidence revealed that earlier

there existed only a wire fencing, leaving a passage, which was later

replaced by a wall that completely blocked access. Such obstruction

amounted to a continuing wrongful act, justifying the grant of a

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mandatory injunction. Since denial of relief would render the plaintiffs’

land virtually unusable, the Court held it is just and equitable to direct

removal of the wall.

5. The Defendant Company filed an appeal

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before the First Appellate Court,

challenging the judgment and decree of the Trial Court which came to be

dismissed vide judgment and order dated: 30.01.2004 and confirmed the

judgment and decree of the Trial Court.

6. Aggrieved by the Judgment and decree of the Trial Court and the First

Appellate Court, the Defendant filed a Second Appeal before the High

Court. The High Court after framing substantial question of law, has passed

the impugned order by setting aside the judgment and decree of both the

courts below and dismissing the suit filed by the Plaintiffs on the grounds:

6.1. A decisive legal correction has to be made with regard to the

maintainability of a suit for bare mandatory injunction. It held that

construction of a wall on disputed land amounts to trespass and

dispossession, for which the efficacious remedy is a suit for possession.

Since the plaintiffs sought only removal of the wall without claiming

possession, the suit was held barred under Section 41(h) of the Specific

Relief Act, 1963. It was further held that both the Trial Court and the

First Appellate Court committed a legal error in granting injunction

when the proper remedy was for ejectment or seeking possession, and

answered the substantial question of law in favour of the defendant.

6.2. Secondly, the High Court supplied additional reasoning on the nature

of title flowing from the sale deed, clarifying that a Maurusee Kashtkar

(Class VIII hereditary tenant) has no transferable ownership rights.

Although the sale deed was executed jointly by Bashir Khan (tenant)

and Laxminarayan (one of the recorded co-owners), the Court made it

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Civil Appeal No. 33/2001.

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clear that ownership could pass only to the extent of the co-owner’s

share, and not that of the tenant. This clarification substantially diluted

the conclusiveness of the plaintiffs’ title, which had been assumed by

the courts below without examining the limits of transferability under

the revenue law.

6.3. Thirdly, the High Court found fatal factual defects in the proof of

location of the disputed wall or identity of said wall. It held that

mandatory injunction could not be granted unless it was conclusively

shown that wall stood on the exact portion of land purchased by the

plaintiffs. The Court noted that the Amin’s report relied upon by the

courts below was not proved; the plaint map did not disclose the length

or width of the wall, and the report dated 28.09.1992 referred to Khasra

No. 438 instead of 436, rendering it unreliable. In the absence of precise

measurements and identification, the decree for demolition was held to

be legally unsustainable.

6.4. Finally, while affirming that the suit was not barred under Section 69

of the Partnership Act, the High Court held that this finding alone could

not save the decree. On cumulative consideration of (i) the bar under

Section 41(h) of the Specific Relief Act, (ii) lack of proof of wall

location or its identity and, (iii) infirmities in title of Plaintiffs, the High

Court concluded that Trial Court and the First Appellate Court had

erred in law. Consequently, the decree for mandatory injunction was

set aside and the suit came to be dismissed, marking a complete reversal

of the earlier concurrent findings.

7. Aggrieved by the judgment and order of the High Court, the Original

Plaintiffs have filed this Civil Appeal.

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SUBMISSION OF THE PARTIES

8. Learned Senior Counsel, S.R.Singh, appearing for the Plaintiffs - Appellants

contended as follows:

8.1. Plaintiffs had filed a suit for mandatory injunction against the

defendant for removal of a wall raised by the defendant, which was

concurrently decreed by both the Trial Court and the First Appellate

Court. The High Court, in exercise of its power under Section 100 of

Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) could

not have went into the re-appreciation of the facts.

8.2. He has further contended that principal ground the Trial Court and the

First Appellate Court, on a thorough appreciation of pleadings and

evidence, concurrently held that plaintiffs are the owners and in settled

possession of the suit land forming part of Khasra No. 436, and that

respondent–BHEL has neither title nor possession over it. It was

conclusively found that Khasra No. 436 was never acquired for BHEL,

a fact reinforced by the admission of BHEL’s own witness that

possession of the relevant old khasra numbers was never handed over

to the company and that the land remained under cultivation.

Consequently, the wall raised by BHEL was held to be illegal and liable

to be removed.

8.3. It was further contended that High Court committed a manifest error in

law by allowing the second appeal and setting aside these concurrent

findings without dealing with them. It is urged that the High Court re-

appreciated the evidence and substituted its own findings on ownership

and possession, despite the settled limitation under Section 100 of CPC

that interference with concurrent findings of fact is not permissible in

second appeal.

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8.4. He further contended that, the High Court wrongly applied Section

41(h) of the Specific Relief Act by holding the suit for injunction to be

barred on the premise that the plaintiffs had not sought possession. He

contended that this finding of the High Court is wholly erroneous since

both the courts had categorically held that plaintiffs were already in

possession of the suit property, making a prayer for possession was not

at all warranted.

8.5. He contended that the impugned judgment is therefore alleged to be

vitiated by jurisdictional error, misapplication of law, and disregard of

binding concurrent factual findings, warranting interference by this

Court.

8.6. The Learned Senior Counsel relied on the judgments of this Court in

Sant Lal Jain vs. Avtar Singh

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and Jospeh Severance and Others vs.

Benny Mathew and others

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to contend that the suit for mandatory

injunction is maintainable without seeking for the possession of the

property.

9. Shri. Shailesh Madiyal, Learned Senior Counsel appearing for the

respondent/ defendant defended the impugned judgment and contended as

follows:

9.1. The Appeal is not maintainable and deserves dismissal because the

Hon’ble High Court correctly held that a suit seeking mandatory

injunction for removal of a wall, without claiming the consequential

relief of possession, is barred under Section 41(h) of the Specific Relief

Act, 1963. The High Court’s interference was based on a pure question

of law, and therefore no error can be attributed to it for allowing the

second appeal.

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(1985) 2 SCC 332.

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(2005) 7 SCC 667.

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9.2. He further contended that, Appellants/Plaintiffs have wrongly alleged

that the High Court substituted findings of fact. In reality, the High

Court decided substantial questions of law, particularly relating to the

statutory bar under Section 41(h) of the Specific Relief Act. Such

determination does not amount to reappreciation of evidence but is a

lawful exercise of jurisdiction in second appeal.

9.3. He further contended that, suit itself was liable to fail as the Appellants

could not identify the specific 15 biswa of land allegedly purchased out

of the large Khasra No. 436. In the absence of clear identification,

dimensions, or measurement of the disputed land and wall, no

injunction could legally be granted. The Trial Court and the First

Appellate Court committed an error in decreeing the suit despite this

fundamental defect.

9.4. He further contended that the grounds raised in the Appeal are

misconceived, factual in nature and does not warrant any interference

by this Court as the impugned judgment of the High Court is just,

proper, and in accordance with law and facts and therefore he sought

for dismissal of the Appeal.

9.5. He further relies on the judgment of this Court in case of Anathula

Sudhakar vs. P. Buchi Reddy (Dead) by Lrs. And Others

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to contend

that, when there is cloud regarding ownership and possession of the

property, the suit for mandatory injunction is not maintainable.

10. Having heard the Learned Senior Counsels appearing for the parties and

after perusal of the record available, the following questions arises for

considerations:

I. Whether the Judgment and Decree of dismissal of the Suit passed by

the High Court warrants interference?

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(2008) 4 SCC 594.

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II. What Order?

RE-ISSUE -I

11. Before proceeding to analyse the judgment, it would be apposite to reiterate

the limited facts which stand admitted and are not in dispute between the

parties:

(a) The plaintiffs purchased a parcel of land admeasuring 15 biswa,

forming part of Khewat No. 8/4, Khatauni No. 36, Khasra No. 436, from

Laxminarayan Jha, the recorded zamindar/landholder, and Bashir Khan, a

cultivating tenant of Shreni–III, by a registered sale deed dated 06.01.1992.

(b) The existence of a wall within Survey/Khasra No. 436 is admitted.

Save and except the aforesaid two facts, no other fact is admitted, and all

other facts are in serious dispute between the parties.

12. Firstly, upon a perusal of the respective cases set up by the plaintiffs and the

defendants, it is evident that plaintiffs asserted their title over the disputed

property on the basis of the sale deed; whereas the defendants expressly

disputed the said title. Even at face value, this assertion and denial establish

a clear dispute regarding title over the disputed property, which constitutes

a material issue requiring adjudication in the present case. Secondly, the

plaintiffs claim to be in possession of the disputed property, while the

defendants assert that they themselves are in possession thereof would

clearly indicate, there exists a serious dispute as to possession of the disputed

property. Thirdly, there is also a dispute with regard to the exact location

and identification of the portion of land comprised in Khasra No. 436, within

which the property allegedly purchased by the plaintiffs is stated to be

situated.

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All the aforesaid aspects namely, the dispute as to title, possession, and

identity/location of the property are required to be borne in mind by this

Court while considering whether the plaintiffs are entitled to the relief of

mandatory injunction, as prayed for.

13. Having examined both the disputed and undisputed facts, as noted

hereinabove, this Court now proceeds to consider the reasons which

weighed with the High Court in exercising its limited jurisdiction under

Section 100 of the CPC. Although the reasons for allowing the second

appeal filed by the defendants have already been adverted to, the same are

reiterated hereinafter for the purpose of a focused analysis. While dealing

with the question as to whether the suit was barred under Sections 38 and 41

of the Specific Relief Act, 1963, the High Court held that a suit seeking the

relief of injunction, without claiming the consequential relief of possession,

is barred by Section 41(h) of the said Act. It is apposite to notice the context

in which such a conclusion was arrived at by the High Court. The High Court

observed that if a wall is constructed by the defendant over the disputed

property claimed to be owned by the plaintiffs, such construction amounts

to trespass resulting in dispossession of the plaintiffs from that portion of the

property. In such circumstances, the appropriate remedy available to the

plaintiffs was to institute a suit for possession, in addition to or instead of

seeking an injunction. With regard to the issue of ownership, the High Court

held that although there existed a sale deed in favour of the plaintiffs and

Laxminarayan possessed a transferable title, Bashir Khan, being a Maurusee

Kashtkar (hereditary tenant), was not competent to convey valid title to the

plaintiffs.

13.1. Upon examining the reasoning adopted by both the trial court and the

first appellate court in granting a decree of mandatory injunction, the

High Court expressed its inability to concur with the said finding and

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remarked that “it is strange” as to how such relief had been granted in

the absence of any cogent evidence establishing the exact location of

the portion of land purchased by the plaintiffs within Khasra No. 436,

or demonstrating that the wall in question fell within the said purchased

portion. The High Court further discarded the report relied upon by the

plaintiffs for establishing the location of the disputed property, holding

that the same could not be safely relied upon.

14. Having reproduced the reasons assigned by the High Court, we now proceed

to examine whether the said reasons suffer from any legal infirmity

warranting interference by this Court. Learned Senior Counsel appearing for

the plaintiffs has placed reliance on the decisions of this Court in Sant Lal

Jain v. Avtar Singh (supra) and Joseph Severance and Others v. Benny

Mathew and Others (supra) to contend that a suit for mandatory injunction

is maintainable even in the absence of a prayer for possession. Per contra,

learned Senior Counsel appearing for the defendants has placed strong

reliance on the decision of this Court in Anathula Sudhakar v. P. Buchi

Reddy (Dead) by LRs and Others (supra), to contend that where a serious

cloud over both the title and possession of the disputed property claimed by

the plaintiffs exists, thereby rendering a suit for injunction simpliciter not

maintainable.

15. Before we go to examine the applicability of these cases to the facts in issue,

we would like to first extract Section 41(h) of the Specific Relief Act, which

reads as follows:

“41. Injunction when refused.— An injunction cannot be

granted—

(a) to (g)……………………………….

(h) when equally efficacious relief can certainly be obtained by

any other usual mode of proceeding except in case of breach of

trust;

(ha) to (j)……………………………… ”

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16. As is evident from Section 41(h) of the Specific Relief Act, 1963, one of the

statutory grounds for refusal of an injunction is the availability of an equally

efficacious remedy. This rule, being expressly prescribed by the statute,

circumscribes the discretion of courts in granting injunctive relief where

such an alternative remedy exists. The expression “equally efficacious

remedy”, as rightly explained by the High Court, denotes a remedy which

would place the Plaintiffs in the same position in which he would have been

had the relief of injunction not been sought. There are, however, limited

categories of cases where a suit for mandatory injunction, by itself, may

constitute an equally efficacious remedy. The factual matrix in Sant Lal

Jain v. Avtar Singh (supra) and Joseph Severance and Others v. Benny

Mathew and Others (supra) are illustrative of such situations, where the

grant of a mandatory injunction was found to be appropriate in the absence

of a prayer for possession.

17. Learned Senior Counsel appearing for the plaintiffs has placed considerable

reliance on the decision of this Court in Sant Lal Jain v. Avtar Singh (supra)

to contend that, in the facts and circumstances of the present case, a suit for

mandatory injunction was maintainable even in the absence of a prayer for

possession. It therefore becomes necessary for this Court to undertake a

factual examination of the context in which the aforesaid observations were

made in Sant Lal Jain, in order to ascertain whether the said decision is

applicable to the present case.

17.1. In Sant Lal, the appellant, a lessee of the property under the original

owner, had granted a one-year licence to the respondent to use a shed

for workshop purposes. Upon expiry and revocation of the licence, the

respondent failed to vacate, leading the appellant to file a suit for

mandatory injunction directing delivery of possession. The trial court

dismissed the suit by treating the respondent as a sub-tenant, but the

first appellate court reversed this finding, holding that the relationship

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was purely that of licensor and licensee, no rent or tenancy having been

proved, and that there was no undue delay in bringing the suit. It was

further held that, in such factual circumstances, a suit for mandatory

injunction is maintainable without filing a separate suit for possession,

as the respondent’s occupation was admittedly permissive and became

unlawful after revocation of licence. In second appeal, the High Court

allowed additional evidence showing that the respondent had

subsequently purchased the property from the original owner and, on

that basis, restored the trial court’s dismissal.

17.2. This Court reversed the findings of the High Court and restored the

decree in favour of the appellant, holding that the respondent’s

subsequent purchase of the property from the original owner did not

extinguish the appellant’s subsisting lease nor legitimise the

respondent’s possession. A licensee is bound to first surrender

possession upon termination and cannot set up title in himself while

continuing in possession. There was no merger of rights since the

licence had already been revoked prior to the sale. The Court reiterated

that, where possession is permissive and no dispute of title arises, a

mandatory injunction itself constitutes an efficacious remedy, and the

plaintiff cannot be non-suited merely because the relief effectively

results in recovery of possession. Accordingly, the appeal was allowed

and the respondent was directed to deliver vacant possession to the

appellant.

18. It is now important to refer to the factual matrix of Jospeh Severance and

Ors v. Benny Mathew and others (supra) as the counsel for the

appellants/Plaintiffs has relied on this decision heavily.

18.1. In case of Jospeh Severance the appellants, owners of the plaint

schedule property, had granted a licence to the predecessor of the

respondents to construct and run a cinema theatre for a fixed period,

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with a clear stipulation that upon expiry the licensee they would

demolish the structures and surrender vacant possession. After the

death of the original licensee and expiry of the renewed licence period,

the appellants issued notice and filed a suit seeking mandatory

injunction to vacate and demolish the structures, along with prohibitory

injunction. Both the trial court and the first appellate court found that

the licence had come to an end, that the defendants had no tenancy or

independent right, and that their continued occupation was

unauthorised. On these findings, the courts held that a suit for

mandatory injunction was maintainable in the given factual scenario

and decreed the suit. However, the High Court in second appeal

reversed the decree, holding that since the defendants were ex-

licensees, the appellants ought to have filed a suit for recovery of

possession, and further held that there was delay in filing the suit.

18.2. This Court set aside the High Court’s judgment, holding that the

approach was contrary to settled law and procedurally unsustainable as

no substantial question of law was framed under Section 100 CPC. On

merits, the Court reiterated that a licensee does not become a trespasser

immediately upon termination of licence, and that where the licensor

approaches the court within a reasonable time, a suit for mandatory

injunction is maintainable without driving the plaintiff to a separate suit

for possession, particularly to avoid multiplicity of proceedings. The

question of “reasonable time” is fact-dependent, and in the present case

the plaintiffs’ explanation was plausible, no specific plea or evidence

of unreasonable delay had been raised earlier, and the issue could not

be introduced for the first time in second appeal. Relying on Sant Lal

Jain v. Avtar Singh (supra), this Court held that technical objections

as to the form of the suit should not defeat substantive rights, and

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accordingly restored the maintainability of the suit for mandatory

injunction, allowing the appeal.

19. In view of the aforesaid factual analysis, we are of the considered opinion

that the reliance placed by the learned Senior Counsel for the plaintiffs on

the decisions in Sant Lal Jain and Joseph Severance does not advance the

case of the plaintiffs and is inapplicable to the facts of the present case. This

conclusion is reached for several reasons. Firstly, in both the aforesaid

decisions, the defendants had entered into possession of the property

permissively as licensees. Secondly, the relationship between the parties was

either admitted or conclusively proved. Thirdly, the alleged dispossession

was recent, and Fourthly, there existed no serious dispute with regard to title

or the identity and boundaries of the property. It thus follows that the ratio

laid down in Sant Lal Jain and Joseph Severance applies to cases involving

permissive possession. In contradistinction, in the present case, as noticed in

paragraph 12 hereinabove, there exists a serious dispute concerning both

title and possession, coupled with serious dispute about identity of the land

in question viz. suit schedule property. Consequently, the ratio of the

aforesaid decisions cannot be extended to the present factual matrix.

20. The legal position governing cases where there exists a cloud over both title

and possession of immovable property is well settled. In Anathula

Sudhakar v. P. Buchi Reddy (supra), as rightly relied upon by learned

counsel appearing for the defendants, this Court has authoritatively

delineated the circumstances in which a suit for injunction simpliciter would

or would not be maintainable. This Court, after an exhaustive survey of the

law, held as under:

“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.

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We may refer to them briefly.

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 defendant, the

plaintiff will have to sue for declaration of title and the consequential

relief of injunction. Where the title of 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………………………

15. In a suit for permanent injunction to restrain the defendant from

interfering with plaintiff's possession, the plaintiff will have to

establish that as on the date of the suit he was in lawful possession

of the suit property and defendant tried to interfere or disturb such

lawful possession. Where the property is a building or building with

appurtenant land, there may not be much difficulty in establishing

possession. The plaintiff may prove physical or lawful possession,

either of himself or by him through his family members or agents or

lessees/licensees. Even in respect of a land without structures, as for

example an agricultural land, possession may be established with

reference to the actual use and cultivation. The question of title is not

in issue in such a suit, though it may arise incidentally or collaterally.

16. But what if the property is a vacant site, which is not physically

possessed, used or enjoyed? In such cases the principle is that

possession follows title. If two persons claim to be in possession of

a vacant site, one who is able to establish title thereto will be

considered to be in possession, as against the person who is not able

to establish title. This means that even though a suit relating to a

vacant site is for a mere injunction and the issue is one of possession,

it will be necessary to examine and determine the title as a prelude

for deciding the de jure possession. In such a situation, where the

title is clear and simple, the court may venture a decision on the issue

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of title, so as to decide the question of de jure possession even though

the suit is for a mere injunction. But where the issue of title involves

complicated or complex questions of fact and law, or where court

feels that parties had not proceeded on the basis that title was at issue,

the court should not decide the issue of title in a suit for injunction.

The proper course is to relegate the plaintiff to the remedy of a full-

fledged suit for declaration and consequential reliefs.”

21. The principles enunciated in Anathula Sudhakar govern cases where there

exists a dispute as to title and rival claims of possession, whereas the

decisions in Sant Lal Jain and Joseph Severance apply to situations where

the defendant is a terminated licensee or permissive occupant, having no

independent or competing right in the property. In cases such as Sant Lal

Jain and Joseph Severance, there was no cloud over title or possession, or

where the defendant’s occupation flows from a licence or permissive

arrangement, a suit for mandatory injunction is maintainable as the most

efficacious remedy. Viewed thus, there is no inconsistency between the

aforesaid judgments, each operating in its own distinct factual and legal

sphere.

22. In the present case, as noticed hereinabove, there exists a serious dispute

with regard to title, the question that arose was whether the plaintiffs had

derived a valid and enforceable title from their predecessors-in-interest.

Even assuming, arguendo, that the plaintiffs possess a valid title, the High

Court has rightly held that where there is a construction raised on the

disputed property alleged to be owned by the plaintiffs, the appropriate and

efficacious remedy available to them was to institute a suit for possession

along with a consequential relief of injunction, and not a suit for injunction

simpliciter.

23. Thus, upon applying the aforesaid principles, the High Court has rightly held

that the plaintiffs’ suit was barred under Section 41(h) of the Specific Relief

Act, 1963, inasmuch as the plaintiffs failed to seek the relief of possession

20

despite the existence of a cloud over possession of the disputed property.

The suit for injunction simpliciter was, therefore, not maintainable.

24. The High Court has further aptly observed that “it is strange” as to how a

decree of mandatory injunction came to be granted by the trial court, and

subsequently affirmed by the first appellate court, in the absence of any

cogent proof regarding the exact location of the portion of land allegedly

purchased by the plaintiffs within Khasra No. 436. The High Court rightly

noted that there were no measurements whatsoever of the disputed wall,

either in the plaint map or in the judgment and decree passed by the trial

court. In the absence of such foundational evidence, the grant of a decree for

mandatory injunction was wholly unsustainable and could not have been

legally issued.

25. No arguments were seriously pressed before us with regard to the

applicability of Section 69 of the Partnership Act, 1932. Nevertheless,

having regard to the contentions urged on this issue before the courts below,

we are of the considered view that the said issue has been rightly decided in

favour of the plaintiffs by all the courts.

26. From the foregoing analysis, it is evident that, in the present case, the High

Court, while exercising its jurisdiction under Section 100 of the Code of

Civil Procedure, 1908, has rightly set aside the judgment and decree of the

trial court as well as the confirming judgment of the first appellate court.

The High Court found that the concurrent findings recorded by the courts

below were vitiated by serious errors of law, arising from a misapplication

of settled legal principles and a failure to take into account material aspects

having a direct bearing on the rights of the parties. Such errors gave rise to

substantial questions of law, thereby justifying interference in second

appeal.

21

27. The High Court correctly concluded that the judgment and decree of the trial

court, and their affirmation by the first appellate court, were legally

unsustainable, inasmuch as the conclusions reached were perverse, contrary

to the governing statutory framework, and incapable of being sustained on a

proper appreciation of the law. Upon answering the substantial questions of

law framed for consideration, the High Court exercised its corrective

jurisdiction to set aside the impugned judgments and passed the

consequential order dismissing the suit. We, therefore, find no reason to

interfere with the exercise of power by the High Court under Section 100 of

the Code of Civil Procedure, the same having been exercised lawfully and

judiciously.

28. For the above-mentioned analysis and reasons, we are of the view that the

Appeal deserves to be dismissed and same is dismissed. The parties to bear

their own costs. Pending applications if any shall stand disposed of.

........................................................................J.

[ARAVIND KUMAR ]

........................................................................J.

[NONGMEIKAPAM KOTISWAR SINGH ]

NEW DELHI;

JANUARY 15

th

, 2026.