Is a suit for bare injunction maintainable where there is a cloud over the title and no declaration is sought?

This Second Appeal is filed against the judgment and decree dated 23.06.2010 passed in A.S.No.15 of 2009 on the file of the II Additional Sub Court, Madurai, confirming the judgment and decree dated 14.02.2005 made in O.S.No.222 of 1998 on the file of the District Munsif Court, Tirumangalam.

The appellants are the defendants and the respondent is the plaintiff in O.S.No.222 of 1998 on the file of the District Munsif Court, Tirumangalam. The respondent/plaintiff filed the suit for mandatory and permanent injunction directing the defendants to remove the superstructure and not to put up further construction over the suit property.

For the sake of convenience, the parties are referred to as the plaintiff and the defendants in O.S.No.222 of 1998 on the file of the District Munsif Court, Tirumangalam.

The Case of the plaintiff: The suit property is a pathway running east-west, measuring 14 ½ feet on the western side, and its width is reduced on the eastern side where it joins Thirumagnalam - Sholavandan Road. The plaintiff filed a rough plan showing the suit pathway and other properties. South of the pathway lie the S.I. Quarters, the police station, and property of the Panchayat Board, and north of the pathway lie the police quarters. The plaintiff and villagers of Chekkanoorani and Ayyampatti have been using the suit pathway to reach the Thirumangalam Sholavadan road and to reach their respective destinations from time immemorial. The 3rd defendant, who has been transferred to Chekkanoorani police station, occupied the SI quarters and is trying to trespass into the suit pathway and to put up a latrine and bathroom, obstructing and closing the pathway. The plaintiff objected to the act of the 3rd defendant. The defendants raised a wall to a height of 4 to 4 ½ feet in the suit pathway on 28.05.1998. The plaintiff sent a telegram to the Inspector of Police on 14.05.1998 requesting to stop the work. The defendants have not obtained any previous sanction from the government or an approved plan from the local body. The action of the defendants closed the plaintiff’s regular access to his house, which is situated to the west of the suit pathway. Hence, the suit is laid.

The Case of the Defendants: The suit pathway running west of Thirumangalam - Sholavandan road is denied. The rough sketch filed by the plaintiff does not depict the actual features on the ground. The suit pathway is not at all a pathway. There is a pathway to the north of the police station, Panchayat board building, and the pathway reaching SI quarters turns towards north and then west, reaching Odai Pathai. The suit property lies between the SI quarters and police quarters, which were constructed long back. The bathroom in the suit property was in dilapidated condition, and so it was repaired by demolishing and putting up a new construction. The plaintiff has been using the space lying between the police quarters and Rathina Nadar's house to reach his house. The villagers have not used the suit property as a pathway, as alleged by the plaintiff. There is no pathway mentioned in the FMB sketch and also in the revenue records, the suit property is shown as police line and police drill ground. The Village Administrative Officer of Kokkulam Village gave a report that the suit property has been set apart for the purpose of police drill ground and also reported that there is no common pathway in the suit survey numbers. The suit property is set apart for the police department, and it is not a pathway. The plaintiff attempted to make a new claim over the suit property. The plaintiff has no right or interest in the suit property. Without a prayer for declaration, the suit for injunction is not maintainable. So, the suit is liable to be dismissed.

The trial Court framed the following issues: 1)Whether the suit property is a common pathway? 2)Whether the plaintiff is entitled for mandatory injunction? 3)Whether the plaintiff is entitled for permanent injunction? 4)To what other reliefs?

During the trial, on the plaintiff's side, two witnesses were examined as P.W.1 and P.W.2, and Ex.A.1 to Ex.A.3 were marked. On the defendants' side, the Village Administrative Officer of the suit village was examined as D.W.1, and Ex.B.1 to Ex.B.3 were marked. The advocate commissioner’s report and plan were marked as Ex.C.1 and Ex.C.2.

After hearing both sides, the learned District Munsif, Thirumangalam, concluded that the suit property is a common pathway and thereby decreed the suit as sought by the plaintiff by judgment and decree dated 14.02.2005.

Aggrieved by the judgment and decree dated 14.02.2005 passed in O.S.No.222 of 1998, the defendants preferred the first civil appeal in A.S.No.15 of 2009 before the II Additional Subordinate Court, Madurai (Subordinate Court, Tirumangalam Camp). The first Appellate Court, after hearing both sides, passed judgment dated 23.06.2010 dismissing the appeal in A.S.No.15 of 2009 and confirmed the judgment and decree of the trial Court passed in O.S.No.222 of 1998.

Challenging the judgment and decree of the First Appellate Court, the defendants have preferred this Second Appeal and the same has been admitted on 15.09.2011 on the following substantial questions of law:-

Heard both sides. Both sides have filed their written arguments along with citations.

Substantital Questions of law (i) to (iii): The learned Government Advocate for the appellants/defendants has submitted that the respondent/plaintiff filed a suit for mandatory injunction to remove construction in the public pathway. The suit property is a portion in S.No.148/5 measuring 21 feet east-west and 14 ½ feet north-south, shown as ABCD in the rough sketch. The plaintiff has not filed any material documents, he has filed only a rough sketch drawn by the plaintiff himself, a telegram and a memo as Ex.A.1 to Ex.A.3. The defendants have marked the FMB sketch, 'A' Register extract, and adangal relating to suit S.No.148 as Ex.B.1 to Ex.B.3. There is no mention of pathway in the suit survey number as per defendants' documents. When the plaintiff pleads that the suit property is a pathway, the burden lies on the plaintiff to prove his case under Section 101 of the Indian Evidence Act. But the plaintiff has not proved that the suit property is a pathway. The plaintiff’s documents Ex.A.1 to Ex.A.3 do not reveal that the suit property is a pathway. The plaintiff has not added the villagers as parties, and the people of Ayyampatti were not added. When the plaintiff claims that the villagers are using the suit property as a pathway, the suit has to be filed on behalf of the villagers of the alleged village, but the suit is filed in an individual capacity. In the entire plaint, there is no averment as to who is the owner of the suit property. In fact, the plaintiff is not the owner of the suit property.

The learned Government Advocate for the appellants/defendants further argued that the appellants/defendants took a specific stand in the written statement itself that without declaratory relief, the prayer for mandatory injunction and permanent injunction against the defendants, who are public officials, the suit is not maintainable. While so, the plaintiff has to seek declaration establishing his right of pathway by way of title or easement. The plaintiff failed to do so. When there is a cloud on title in a suit for injunction, the declaration has to be sought, and the suit for injunction simpliciter is not maintainable, which is settled by the Hon’ble Apex Court in Anathula’s case. The Courts below committed a fundamental error in granting reliefs without a declaration. The suit property belonged to the police department, which is confirmed by the revenue records. There is no document on the plaintiff's side to show that the suit property is a pathway. The defendants established that the suit property is government land allotted to the police department by way of producing FMB sketch, 'A' Register extract and adangal. To substantiate the same, the concerned Village Administrative Officer was examined by the defendants as D.W.1, who affirmed the case of the defendants. D.W.1 has categorically deposed that the suit property is a police drill ground. There is no contra evidence adduced by the plaintiff. Even the plaintiff has not pleaded essential ingredients of an easement right, and there is no specific pleading of continuous, uninterrupted and as of right usage for a statutory period.

The learned Government Advocate for the appellants/defendants further argued that the plaintiff made a vague assertion of long standing usage by himself and certain villagers. The said assertion was not supported by cogent evidence, and such general assertion does not confer any legal right to the plaintiff. The plaintiff examined one third person as P.W.2, who is not a fit person. In such circumstances, the findings of the Courts below that the suit property is a pathway are vitiated by perversity, as it is based only on oral evidence and not supported by any documents. The revenue records, FMB and 'A' Register specifically classify the suit S.No.148/5 as a police drill ground and not as a pathway. The Courts below ignored those documents produced by the defendants. The first Appellate Court relied on the alleged admission in the written statement that a pathway exists. The alleged pathway pertains to areas adjacent to the suit survey number. There is no clear, categorical, or unambiguous admission regarding the existence of a pathway in the suit property. Both the Courts below only relied on the advocate commissioner’s report that the construction was put up by the defendants in the pathway used by the respondent/plaintiff and villagers. In fact, the commissioner has not visited the suit property and measured the same with the assistance of revenue officials. The commissioner’s report lacks verification of official records. The commissioner’s report is only based primarily on a superficial inspection and local inquiries, therefore, the said report cannot override the statutory records. It is well settled that a commissioner’s report is only an aid to the Court, and it cannot be the sole basis for determining a substantive right, particularly when it is inconsistent with official records.

The learned Government Advocate for the appellants/defendants further argued that the plaintiff approached the Court, and so he has to prove his own case by cogent and convincing evidence. But the Courts below shifted the burden of proof upon the defendants and thereby, the Courts below proceeded on a misdirection in law and passed an erroneous decree. The defendants proved that they are the owners of the suit property, as such an injunction cannot be granted against the true owner. The suit property is situated between the two police quarters, that too with an old building of latrines and bathrooms, which were in dilapidated condition. So, the defendants made only renovation to the pre-existing structure, and they have not made any new construction, hence, there is no need for prior approval from the local body. The Courts below failed to consider the specific defense, granted relief against the fundamental principles of law, and contrary to the documentary evidence. The plaintiff has not proved the suit property as pathway, the plaintiff has no right or title over the suit property, and he has not sought any easement right. When there is a specific denial, the plaintiff ought to seek declaratory relief, so, in the absence of declaratory relief, the suit for injunction simpliciter is not maintainable. The conclusions of the Courts below are not only unsupported by evidence but the same are in direct conflict with official records. The findings of the Courts below are perverse and the same need to be set aside. Therefore, the second appeal may be allowed.

In support of his contention, the learned counsel for the appellants/defendants has relied on the following rulings. 1. CDJ 2006 SC 381 in the case of Anil Rishi /v/ Gurbaksh Singh, the learned counsel relied on paragraph Nos.7 and 8 as follows: “7.The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, which reads as under:- "Sec. 101. Burden of proof. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person." 8. In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. 2. CDJ 2008 SC 603 in the case of Anathula Sudhakar /v/ P.Buchi Reddy (Dead) by LRs & Ors., the learned counsel relied on paragraph No.17 as follows: ''17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under : (a) Where a cloud is raised over plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.” 3. CDJ 2009 SC 194 in the case of Bachhaj Nahar /v/ Nilima Mandal and Anr., the learned counsel relied on paragraph Nos.13 and 14 as follows:- “13. A perusal of the plaint clearly shows that entire case of the plaintiffs was that they were the owners of the suit property and that the first defendant had encroached upon it. The plaintiffs had not pleaded, even as an alternative case, that they were entitled to an easementary right of passage over the schedule property. The facts to be pleaded and proved for establishing title are different from the facts that are to be pleaded and proved for making out an easementary right. A suit for declaration of title and possession relates to the existence and establishment of natural rights which inhere in a person by virtue of his ownership of a property. On the other hand, a suit for enforcement of an easementary right, relates to a right possessed by a dominant owner/occupier over a property not his own, having the effect of restricting the natural rights of the owner/occupier of such property. 14. Easements may relate to a right of way, a right to light and air, right to draw water, right to support, right to have overhanging eaves, right of drainage, right to a water course etc. Easements can be acquired by different ways and are of different kinds, that is, easement by grant, easement of necessity, easement by prescription, etc. A dominant owner seeking any declaratory or injunctive relief relating to an easementary right shall have plead and prove the nature of easement, manner of acquisition of the easementary right, and the manner of disturbance or obstruction to the easementary right. The pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant. In regard to an easement by prescription, the plaintiff is required to plead and prove that he was in peaceful, open and uninterrupted enjoyment of the right for a period of twenty years (ending within two years next before the institution of the suit). He should also plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a licence and not an easement. For claiming an easement of necessity, the plaintiff has to plead that his dominant tenement and defendant's servient tenement originally constituted a single tenement and the ownership thereof vested in the same person and that there has been a severance of such ownership and that without the easementary right claimed, the dominant tenement cannot be used. We may also note that the pleadings necessary for establishing a right of passage is different from a right of drainage or right to support of a roof or right to water course. We have referred to these aspects only to show that a court cannot assume or infer a case of easementary right, by referring to a stray sentence here and a stray sentence there in the pleading or evidence.” 4. CDJ 2015 MHC 979 in the case of K.Krishnamoorthy /v/ Nagammal and Ors., the learned counsel relied on paragraph No.16 as follows: “16. On perusal of the materials available on record, it is found that plaintiff has not come out with a single plea of easement of necessity, instead, he has pleaded long user and ownership also. Therefore, in three modes, he claims the right to use the ''B'' Schedule property which is not maintainable in law as rightly pointed out by the learned counsel for the respondents, after referring the decisions cited supra. Therefore, the finding of the courts below rejecting the claim of the plaintiff cannot be found fault with and they do not warrant any interference. The substantial question of law is answered against the plaintiff/appellant herein.” 5. Judgment of the Hon’ble Supreme Court in Civil Appeal No.8241 of 2009 dated 09.10.2018, the learned counsel relied on paragraph No.12 as follows: “12. In the facts of the case the defendant Board by relying upon the land acquisition proceedings and the possession certificate could successfully raise cloud over the title of the plaintiff and in those circumstances plaintiff ought to have sought for the relief of declaration. The Courts below erred in entertaining the suit for injunction.”

Per contra, the learned counsel for the respondent/plaintiff has made the argument that the appellants/defendants have made out in the appeal grounds only regarding facts, and they have not canvassed any questions of law, so this second appeal is not maintainable. In a second appeal, findings of fact cannot be examined since the first Appellate Court is the final Court for findings of fact. The 3rd defendant, who was transferred to the Chekkanoorani police station, trespassed into the suit pathway and raised a wall, so the plaintiff has objected. The trial Court has appointed an advocate/commissioner who filed a report that the suit property ABCD portion is a pathway. The appellants/defendants have not raised any objection. The plaintiff deposed that they have been utilizing the suit pathway since their ancestors. The entire S.No.148/5 is poromboke, and it is not set apart for the police department. Ex.B.2 was issued by the Village Administrative Officer after 12 years of the suit. There is no document to show that S.No.148/5 was set apart for the police department. The defendants have not entered into the witness box to substantiate their case. They examined only the Village Administrative Officer, so his evidence will not assist the defendants. In fact, the evidence of the Village Administrative Officer supports the case of the plaintiff. There is no document produced by the defendants to show the sanction of a plan for making a superstructure in the suit property. So, the blocking of the pathway is not only infringing the rights of the plaintiff and villagers, but also illegal because of violation of the rules of the Panchayat. The defendants pleaded that the plaintiff has an alternative pathway, but it is not a public pathway and it belongs to a school. The defendants have not established their case. The Courts below gave a concurrent finding. So, the second appeal may be dismissed.

In support of his arguments, the learned counsel for the respondent/plaintiff has relied on the following citations: (1) (2019) AIR (SC) 1441 in the case of Gurnam Singh (D) by LRs. and Ors. /v/ Lehna Singh (D) by LRs., the learned counsel relied on paragraph No.18 as follows: “18.Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 of the CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 of the CPC, it is not permissible for the High Court to re-appreciate the evidence on record and interfere with the findings recorded by the Courts below and/or the First Appellate Court and if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. We have noticed and even as repeatedly observed by this Court and even in the case of Narayanan Rajendran v. Lekshmy Sarojini, (2009) 5 SCC 264, despite the catena of decisions of this Court and even the mandate under Section 100 of the CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law.” (2) (1999) AIR (SC) 1441 in the case of Vidhyadhar /v/ Maninkrao and Anr., the learned counsel relied on paragraph No.15 as follows: “15. It was defendant No.1 who contended that the sale deed, executed by defendant No.2 in favour of the plaintiff, was fictitious and the whole transaction was a bogus transaction as only Rs.500 were paid as sale consideration to defendant No.2. He further claimed that payment of Rs.4,500 to defendant No.2 at his home before the registration of the deed was wholly incorrect. This plea was not supported by defendant No.1 as he did not enter into the witness box. He did not state the facts pleaded in the written statement on oath in the Trial Court and avoided the witness box so that he may not be cross examined. This, by itself, is enough to reject the claim that the transaction of sale between defendant No.2 and the plaintiff was a bogus transaction.” (3) 2013 (5) CTC 177 of Madras High Court in the case of D.Manickam /v/ The President, The District Collector and the Tahsildhar, the learned counsel relied on paragraph No.11 as follows: “11. PW.2 - Aasirvadham, who was examined on the side of the plaintiff to prove the alleged gift made by the Correspondent of C.S.I. Schools, has signed a proof affidavit containing averments that the plaintiff got the suit property consisting of house and land 40 years prior to his examination as a witness and from the date of the gift, the plaintiff and his legal heirs were enjoying the said property. It has also been stated in the proof affidavit that the total extent of the land is 11 cents and the Panchayat Board President, along with his people, cut and removed trees worth Rs.50,000/- standing in the suit property four years prior to his examination as a witness. The proof affidavit was signed on 12.04.2004. The trustworthiness and reliability of the evidence of the witness in the chief examination in the form of proof affidavit, has to be tested by the acid test of cross-examination. During cross-examination, PW.2 stated that there was no door number for the suit property and it did not have any electricity connection or water connection. He has also admitted that the plaintiff is having another house at some other place. Besides the said admission, he has also admitted that he did not know the year in which the plaintiff got the property as a gift and the person who gave it to the plaintiff as a gift. There is a further admission on his part that he did not see the document relating to the suit property and the extent had been given by him as 11 cents approximately. It is also his further admission that he does not know either the survey number or the four boundaries of the suit property. The courts below have considered the evidence of PW.2 in proper perspective and came to a correct conclusion that he was not a reliable witness and his evidence would not be helpful to prove the case of the appellant/plaintiff. ''

I have carefully considered the arguments of both parties and perused the material records of the case. It is the case of the plaintiff that the suit property is a pathway, having been utilized by himself and other villagers. The plaintiff has filed the suit seeking for mandatory injunction against the defendants to remove the superstructure in the suit pathway and an injunction not to put up further construction. The plaintiff has mentioned the suit property is situated in Chekkanoorani Village, in S.No.148/5, portion of pathway measuring 21 feet east-west and 14 ½ feet in north-south, bounded by remaining portion of the pathway in the east, police quarters in the north; Sub-Inspector’s quarters in the south and Odai pathway in the west. It is the definite case of the defendants that the suit property is not a pathway and it belongs to the police department. It is their further case that the suit property is situated between the S.I. Quarters and Police Quarters, consisting of an old bathroom, and since the said bathroom was in bad and dilapidated condition, they wanted to renovate it. Both parties adduced evidence before the trial Court. The trial Court concluded that the suit property is a pathway and decreed in favour of the plaintiff. The first appeal preferred by the defendants was dismissed. The Courts below concluded the issues in favour of the plaintiff. Challenging the concurrent findings, the present second appeal is preferred by the defendants, mainly raising the questions of law that the plaintiff has not produced any valid document to prove that the suit property is a pathway, whereas the defendants produced documents to show that the suit property belonged to the police department, but the Courts below concluded based on the oral evidence of the plaintiff.

Of course, the Courts below gave concurrent findings, in second appeal the evidence could not be re-appreciated. The Hon’ble Supreme Court in its verdict in the case of State of Rajasthan and Anr. v. Shiv Dayal and Ors. in Civil Appeal Nos.7363 - 7465 of 2000 reported in (2019) 8 SCC 637, it is held in paragraph Nos.15 and 16.

Further, the Hon’ble Supreme Court in Ravi Setia v. Madan Lal case reported in (2019) SCC 381, the Hon’ble Supreme Court held that in cases of perverse findings/complete misappreciation/erroneous consideration of the evidence, or failure to consider relevant evidence, a court in second appeal could reappreciate the evidence. Further, in Nazir Mohamed v. J.Kamala case reported in (2020) 19 SCC 57, the Hon’ble Supreme Court held as follows:

In this case, the plaintiff seeks relief as if the suit property is a common pathway. If it is so, as per Section 101 of the Indian Evidence Act, the plaintiff must prove the specific factual and legal ingredients through documents to substantiate long term usage in continuous, open, and uninterrupted manner and also to prove that the pathway physically exists on the ground with specific boundaries. The plaintiff must also prove that the pathway was intentionally left common by way of producing title documents showing recitals or schedules that explicitly state a common passage or common pathway.

Keeping these principles in mind, from perusal of the material records, it is clear that the plaintiff has not produced any title deeds, much less authenticated documents, to show that the suit property is a pathway. It is not the case that the suit pathway belonged to the plaintiff. The plaintiff has only produced three documents, Ex.A.1 to Ex.A.3. Ex.A.1 is a rough sketch which was drawn by the plaintiff himself, and it is not recognized or approved by any competent authority. Ex.A.2 is a telegram sent by the plaintiff to the Inspector of Police and S.I. of Police. Ex.A.3 is a memo of the Tahsildar, Tirumangalam, sent to the plaintiff, in which it is stated that the plaintiff sought a copy of the sketch for S.Nos.146, 148 and 149 of Kokkulam and the same is not relevant to the plaintiff and in case FMB is sought through Court, the same would be produced. Except for these documents, there is no other document filed by the plaintiff.

The defendants vehemently contended that the suit property belongs to the Police Department and filed Ex.B.1 to Ex.B.3. Ex.B.1 is an FMB sketch, Ex.B.2 is the 'A' Register extract for the suit Survey Number, and Ex.B.3 adangal for the suit Survey Number. Those documents were produced by the D.W.1, who deposed that the suit property was allotted to the Police Department. So, there is a strong cloud on the title of the suit property. Admittedly, the plaintiff has filed the suit for mandatory and permanent injunction. The defendants themselves have specifically raised an allegation that the suit property is not a pathway and it is the exclusive property of the Police Department. While so, the plaintiff has not amended the plaint by way of adding the ‘declaration relief.’ But the plaintiff failed to do so. Hence, as rightly argued by the learned counsel for the appellants/defendants, placing reliance on Anathula's case of the Hon’ble Supreme Court, without a declaration, the suit for a bare injunction is not maintainable; a suit simpliciter for injunction will not be maintainable when the title to the property of the plaintiff is disputed by the defendant. Much less when the boundaries of the suit property are disputed, the suit filed by the plaintiff to protect his possession is not maintainable.

The Hon’ble Supreme has settled legal position in Anathula Shudhakar case reported in CDJ 2008 Supreme Court 603 and held in paragraph No.17(c) as, “17.(c)But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific or implied as noticed in Annaimuthu Thevar). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration or title, instead of deciding the issue in a suit for mere injunction.”

From perusal of the plaint averments, there are no averments regarding the title of the suit pathway, and there is no averment regarding the origin of the suit property. The plaintiff as P.W.1 has deposed in his cross examination that “jhth ghij ve;j rh;nt ek;ghpy; cs;sJ vd;gij ghh;g;gjw;fhf tUtha; Mtzq;fs; vija[k; ehd; ghh;f;ftpy;iy..........”. The plaintiff pleaded that he has utilized the suit pathway immemorially. But the plaintiff has not pleaded title by way of claiming an easementary right. There is no issue framed for title by the trial Court. Hence, the reliance placed by the defendants' side on the Anathula Sudhakar case is squarely applicable to the facts of this case. The citations relied on by the defendants are squarely applicable to the facts of this case.

The plaintiff pleaded that he and the villagers of Chekkanoorani and Ayyampatti were using the suit pathway. But the plaintiff has not filed the suit in the representative capacity of those villagers. Moreover, he has not examined the villagers of both villages to substantiate his case, except P.W.2 who deposed that “v];.I.tPlhdJ jhth ghijf;Fk; bjd;g[uk; cs;sJ. nghyp]; Fthh;l;lh;]; vd;gJ jhth ghijf;Fk; tlf;nf cs;sJ.........jhth brhj;J ghij vd;gijf; fhl;Lk; Mtzq;fs; vJt[k; ehd; ghh;j;jjpy;iy....”. The defendants' side Ex.B.1 FMB clearly shows that there is no pathway in the suit Survey Number. To strengthen this, D.W.1, Village Administrative Officer, deposed that “V.bfhf;Fsk; fpuhk r.vz;.148/1 vd;gJ nghyP]; iyd v;dW tUtha; Mtzq;fspy; brhy;yg;gl;Ls;sJ. R.vz;.148/5 vd;gJ nghyP]; ohpy; fpiut[z;L vd;Wk; nghyP]; ];nlrd; vd;W brhy;yg;gl;Ls;sJ.” In these circumstances, the learned counsel argued that the defendants have not entered into the witness box, so the evidence of D.W.1 is not reliable. The plaintiff has added the defendants as official capacity. The defendants contended that the suit property belongs to the Police Department. So, the Village Administrative Officer is a competent person to give evidence, who categorically deposed that the suit property belongs to the Police Department and filed documents. It is settled law that the plaintiff who approached the Court has to prove his case first, and then the defendants would lead rebuttal evidence, and the plaintiff cannot take advantage of the defence's weakness. In this case, the plaintiff has not proved that the suit property is a pathway by producing any document of the local body to show that the suit property is allotted for a common pathway. He has not produced any document and has not examined any official of the local body either.

From perusal of records, at the instance of the plaintiff, an advocate/commissioner has been appointed. The advocate commissioner has inspected the suit property and filed a report along with a plan. It is admitted that the advocate commissioner has not inspected the suit property with assistance of revenue officials. When the suit pathway is claimed as a common pathway, the advocate/commissioner has to inspect the suit property with the assistance of revenue officials and also with the assistance of revenue records and FMB, as rightly argued by the learned counsel for the appellants/defendants. P.W.1 and P.W.2 have also categorically admitted the same. Hence, the advocate/commissioner’s report will not be given much reliance in respect of title. However, the advocate/commissioner can note the physical features of the property. He noted the features and filed a report along with a sketch, which are marked as Ex.C.1 and Ex.C.2. On perusal of the same, it is clear he has not taken assistance of any revenue officials when the suit property is claimed by the plaintiff as pathway. On perusal of Ex.C.2 sketch, it is clear that the suit pathway is situated away from the plaintiff’s house and also opposite to the plaintiff’s house, there is a pathway running east-west, then turning north-south and again turning east-west to reach Thirumangalam-Sholavandan main road. There is Odai Pathai immediate on the east of the plaintiff’s house, which runs north-south to reach the Usilampatti-Madurai main road, which also runs east-west to reach Thirumangalam to Sholavandan main road. The plaintiff as P.W.1 has also admitted in his cross examination that “Mizahsh; tiuglj;jpy; jhth ghijahdJ fpHnkyhf te;J tlf;nf jpUk;gp gpd;g[ nkw;fh bry;tjhf mk;g[f;Fwpapl;L fhl;lg;gl;Ls;sJ vd;why; nkw;go ghij jw;rkak; cs;s mikg;ghFk;.” The commissioner's report reveals that “jhth ,lk; vd;gJ brf;fhZ[uzp cjtp Ma;thsh; FoapUf;Fk; ,lj;jpjw;Fk; tlf;F kw;Wk; ghHile;J nghyP]; FoapUg;g[fk; bjw;F ,jw;F ,ilg;gl;ll ,lkhFk;..” So, the commissioner’s report strengthens the case of defendants that the suit property belonged to the police department.

In these circumstances, the Courts below have not considered all these aspects to hold that the plaintiff has failed to prove title of the suit pathway on the ground and also failed to prove title by way of easement, that too without any pleading in the plaint itself. When there is a cloud over the title of the property, the suit for injunction simpliciter is not maintainable as per settled position of Anathula’s case. (supra). The Courts below failed to appreciate the evidence considering the above settled position of law. The suit is without any basis, and the Courts below have committed an error in law, since the plaintiff has not proved that the suit pathway is a pathway by establishing title. Whereas the defendants have proved that the suit property is not a pathway and that it belongs to the Police Department, and also proved that the plaintiff has an Odai pathway immediately to the east of his house, and also that there is a pathway opposite to his house. The Courts below have not correctly appreciated the above facts and evidence and simply concluded based on the oral evidence of the plaintiff and also baseless documents Ex.A.1 to Ex.A.3, in which Ex.A.1 is drawn by the plaintiff himself, which is not recognized or approved by the competent authority. So, the concurrent findings of the Courts below are not correct in the eye of law. Therefore, the questions of law are answered in favour of the appellants/defendants. The said findings need to be interfered with by this Court by way of this second appeal. The citations relied on by the respondent/plaintiff are not applicable to the facts and circumstances of this case. Thus, this second appeal succeeds.

In the result, the Second Appeal is allowed. The judgment and decree dated 23.06.2010 passed in A.S.No.15 of 2009 on the file of the II Additional Sub Court, Madurai, confirming the judgment and decree dated 14.02.2005 made in O.S.No.222 of 1998 on the file of the District Munsif Court, Tirumangalam, are set aside. The suit in O.S.No.222 of 1998 on the file of the District Munsif Court, Thirumangalam is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed. 07.10.2026