SRI THIMMAIAH versus SHABIRA AND ORS.

Citation: [2008] 2 S.C.R. 506 · Decided: 06-02-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Partly allowed

Judgment (excerpt)

A 
B 
[2008] 2 S.C.R. 506 
SRI THIMMAIAH 
v. 
SHABIRA AND ORS. 
(Civil Appeal No. 831 of 2002) 
FEBRUARY 6, 2008 
(DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.) 
Code of Civil Procedure, 1908; S. 96: 
Suit for grant of permanent injunction - Filing of, by 
C respondents ·against appellant to restrain him from interfering 
with peaceful possessiQn of property- Dismissed by tria1 Court 
- Appeal allowed by High Court - On appeal, Held: Before an 
injunction is granted, plaintiff has to show that he was in 
possession of the property in question - Trial Court considered 
D the yital issue of possession and held it in negative - High 
Court neither formulated the question nor recorded any finding 
regarding possession - Hence, matter remitted to High Court 
to formulate a question on possession to decide the appeal -
Directions issued. 
E 
Respondent No.1 purchased certain land with 
temporary structure thereon from respondent No.3 under 
a registered sale deed. When respondents (respondent 
No.1 and her husband-respondent No.2) started 
demolishing the structure, the appellant interfered with 
F the peaceful possession and enjoyment of the property 
in question and also attempted to encroach over the 
property. Respondents filed a suit for grant of permanent 
injunction against the appellant. Trial Court framed three 
questions, viz., (i) as to whether respondent Nos. 1 and 2 
G were in lawful possession of the plaint schedule property 
on the date of filing the suit; (ii) as to whether the illegal 
interference was proved; and (iii) as to whether the plaintiff 
was entitled to permanent injunction as prayed. After 
H 
appreciating the evidence, trial Court dismissed the suit. 
506 
SRI THIMMAIAH v. SHABIRAAND ORS. 
507 
~ 
I 
Aggrieved, respondent Nos.1 and 2 filed appeal before A 
the High Court, which was allowed by the High Court. 
Hence the present appeal. 
Appellant contended that the trial Court categorically 
held that the plaintiffs had failed to prove their possession; B 
and that there is no finding recorded by the High Court 
regarding possession and even while formulating "the 
point for determination the question of possession was 
~ 
not considered. 
Respondents submitted that since the trial Court c 
recorded findings regarding possession which are 
contrarY to the materials on record, the High Court has 
rightly allowed the appeal. 
Partly allowing the appeal, the Court 
HELD: 1.1 The general proposition is well settled D 
that a plaintiff not in possession is not entitled to the relief 
without claiming recovery of possession. Before an 
injunction can be granted it has to be shown that the 
plaintiff was in possession. (Para - 5) [510-E] 
E 
1.2 In the instant case, Issues Nos. 1 and 3 which 
were framed by the trial Court tlearly refer to this vital 
aspect of possession of the property in question. The trial 
Court while answering these issues held in the negative. 
The High Court did not consider the effect of these F 
findings and even did not re~ord any finding regarding 
possession. Therefore, as rightly contended by the 
appellant, the High Court could not have allowed the 
appeal. Even while formulating the point for determination, 
the High Court did not formulate the question relating to G 
possession. Hence, the matter is remitted to the High 
,..,.. 
Court to formulate a definite point relating to possession 
and then analyse-the evidence on record with reference 
to that question and decide the appeal. (Para - 6, 7) 
[510-F, G, H; 511-A] 
H 
508 
SUPREME COURT REPORTS 
[2008] 2 S.C.R. 
A 
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 831 
B 
of 2002. 
From the Judgment and final Order dated 18. 7.2001 of 
the High Court of Karnataka at Bangalore in RF.A. No. 598/ 
1998. 
Vikas Rojipura and E.C. Vidya Sagar for the Appellant. 
S.N. Bhat, N.P.S. Panwar, D.P. Chaturvedi and Kiran Suri 
for the Respondents. 
c 
The Judgment of the Court was delivered by 
Dr. ARIJIT PASAYAT, J. 1. Heard learned counsel for the 
parties. 
2. Challenge in this appeal is to the judgmen~ ' ~ :! learned 
0 Single Judge of the Karnataka High court allov'd~g ihe First 
Appeal filed by the respondents under Section 96 of the Code 
of Civil Procedure, 1908 (in short the 'CPC'). 
3. The factual background needs to be noted in brief: 
E 
The appeal before the High Court was by the plaintiffs who 
are respondents in the present appeal. 
The plaintiffs 1 and 2 are the wife and husband. According 
to the plaintiffs, the 1st pl

Excerpt shown. Read the full judgment & AI analysis in Lexace.