IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.5459 OF 2007
Velayudhan & Ors. ….Appellant(s)
Mohammedkutty & Ors. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) This appeal is filed by the defendants against the final judgment and
order dated 08.03.2006 passed by the High Court of Kerala in S.A. No.180 &
475/1992 whereby the High Court allowed the second appeals filed by the
plaintiffs-respondents herein and set aside the judgment and decree dated
26.07.1991 of the Subordinate Judge, Tirur in A.S. Nos. 83 & 84 of 1988 and
restored the judgment dated 30.09.1988 of the Munsif of Parappanangadi in
O.S. No. 177 of 1983.
2) We need not burden our judgment by mentioning the facts in detail
except to the extent necessary to appreciate the issue involved in the
3) The appellants herein are the defendants whereas the respondents are
the plaintiffs in a suit out of which this appeal arises.
4) The respondents filed a civil suit in relation to the suit land as
described in detail in schedule to the plaint against the appellants before
the Munsif of Parappanangadi. The Munsif Court decreed the respondents’
suit against the appellants and passed the decree as prayed by the
5) The defendants, felt aggrieved, filed the first appeals before the
Subordinate Judge Tirur. The first appellate Court allowed the appeals and
dismissed the suit. The respondents, felt aggrieved, filed Second Appeals
under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred to
as “the Code”). The High Court admitted the appeals on the following two
substantial questions of law:
“1. The suit being one for perpetual injunction, whether investigation
into the question of title was necessary or called for?
2. Whether, in view of the evidence, including the Commissioner’s report,
the Appellate Court was justified in coming to the conclusion that the
appellants had no possession?”
6) By impugned order, the High Court allowed the appeals and while
reversing the judgment and decree of the first appellate Court restored
that of the Trial Court, which had decreed the respondents’ suit. It is
against this order of the High Court, the defendants felt aggrieved and
filed this appeal by way of special leave before this Court.
7) Heard Mr. M.K.S. Menon, learned counsel for the appellants and Mr. K.
Rajeev, learned counsel for the respondents.
8) Having heard learned counsel for the parties and on perusal of the
record of the case, we are inclined to allow the appeal in part and while
setting aside of the impugned order consider it just and proper and in the
interest of all parties concerned to remand the case to the High Court for
deciding the plaintiffs’ Second Appeals afresh on merits by reframing the
fresh substantial questions of law.
9) In our considered opinion, the need to remand the case to the High
Court for deciding the Second Appeals afresh has arisen because we find
that the High Court proceeded on the assumption that the Civil Suit filed
by the respondents out of which this appeal arises is essentially for grant
of permanent injunction simpliciter. It would be clear from the first
substantial question of law framed by the High Court quoted supra.
10) One of the questions, which fell for consideration before the first
and second appellate Court was regarding the nature of the Suit filed by
the respondents and the reliefs claimed therein.
11) Was it a suit for grant of permanent injunction simpliciter or a suit
to seek a declaration of title with consequential relief of grant of
permanent injunction in relation to the suit land?
12) On perusal of the plaint, we find that the plaintiffs asked for the
“A. Issue an order of injunction preventing defendants or their men from
entering into or taking any usufructs from the plaint schedule property or
from doing anything detrimental to the title and possession of the
B. Direct the defendants to pay all costs in the suit.
Such other or further orders be passed in the suit.”
13) Reading the expression “or from doing anything detrimental to the
title and possession of the plaintiffs” in prayer clause A quoted above
would show that the plaintiffs have also expressed apprehension in relation
to their title over the suit properties.
14) Keeping in view the averments made in Para 1 of the plaint read with
aforementioned words of the prayer clause, we are of the view that it
cannot be said that the Suit is only for grant of permanent injunction
simpliciter. In other words, the issue of title having surfaced in the
relief clause, the same is of some significance over the rights of the
parties while considering the grant of the reliefs.
15) In our considered opinion, the reading of the plaint as a whole in
the context of the reliefs claimed therein would go to show that the issue
of title is not wholly foreign to the controversy and is relevant while
considering the grant of permanent injunction.
16) It is true that the relief clause in the plaint is not happily worded
but, as observed supra, reading the plaint as a whole along with relief
clause does support our observations.
17) Since the High Court proceeded to decide the appeals in the light of
first substantial question of law and hence it committed an error. The
first error was in framing the wrong question and the second was in
proceeding to examine the said question.
18) The issue, in our view, was required to be examined by the High Court
keeping in view the law laid down by this Court in the case of Anathula
Sudhakar vs. P. Buchi Reddy(Dead) by L.Rs. & Ors., 2008(4) SCC 594. It
was, however, not done.
19) It is due to the aforesaid reasons, we are of the view that matter
needs a fresh look by the High Court on the questions which arise in the
20) In the light of foregoing discussion, we allow the appeal in part,
set aside the impugned judgment and remand the case to the High Court to
decide the appeal afresh after reframing the proper substantial questions
of law keeping in view the pleadings and the findings of the two Courts
below as required under Section 100 of the Code.
21) Since the appeal is quite old, we request the High Court to decide
the appeal expeditiously.
[ABHAY MANOHAR SAPRE]
April 18, 2017