A. Selvam, J.@mdashChallenge in this second appeal is to the Judgment and decree passed in Appeal Suit No. 8 of 2008 by the Sub Court, Karur, wherein the Judgment and decree passed in Original Suit No. 640 of 2003 by the Additional District Munsif Court, Karur are set aside. The respondent herein as plaintiff has instituted Original Suit No. 640 of 2003 on the file of the trial Court for the relief of perpetual injunction, wherein the present appellant has been shown as first defendant.
2. The nubble of the plaint is that the suit property is originally belonged to one R.Murugesan S/o.Rasappa Gounder. For the purpose of convenience, the plaintiff by utilising his funds has purchased the suit property from the said Murugesan in the name of his son viz., the first defendant under the Registered sale deed dated 24.01.1994. After purchase, the plaintiff has put up a construction in the suit property by utilising his funds. Ever since the date of purchase, the plaintiff has been in peaceful possession and enjoyment of the suit property. The suit property has been leased out to the defendants. Though the sale deed dated 24.01.1994 stands in the name of the first defendant, the first defendant has no manner of right, title and interest over the suit property. The first defendant has been under the care and custody of the plaintiff at the time of execution of sale deed dated 24.01.1994. The suit property has been purchased in benami in the name of the first defendant. A flimsy dispute has arisen betwixt the plaintiff and first defendant. Taking advantage of the dispute that exists between the plaintiff and first defendant, the first defendant has claimed a novel right over the suit property and he has also threatened to sell the suit property. The defendants are enjoying the suit property as tenants within the meaning of Tamil Nadu Buildings (Lease and Rent Control) Act. The relationship of landlord and tenant exists betwixt the plaintiff and defendants. Under the said circumstances, the present suit has been instituted for the relief of perpetual injunction.
3. It is averred in the written statement that it is false to contend that the suit property, for convenient sake has been purchased by utilising the funds of the plaintiff in the name of the first defendant. It is also equally false to say that the plaintiff is the owner of the suit property and the same has been leased out to the defendants and the defendants are enjoying the same as tenants of the plaintiff. The first defendant has been running a finance company and he is a managing partner and out of his funds, he purchased the suit property from its original owner. It is false to contend that the suit property has been purchased in benami in the name of the first defendant. The defendants are not enjoying the suit property as tenants of the plaintiff. The plaintiff is not entitled to get the relief sought for in the plaint and therefore, the present suit deserves dismissal.
4. On the basis of the rival pleadings raised on either side, the trial Court has framed two issues and after evaluating both the oral and documentary evidence has dismissed the suit. Against the Judgment and decree passed by the trial Court, the plaintiff as appellant has preferred Appeal Suit No. 8 of 2008 on the file of the first appellate Court. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has allowed the appeal, whereby and whereunder set aside the Judgment and decree passed by the trial Court and consequently decreed the suit as prayed for. Against the Judgment and decree passed by the first appellate Court, the present second appeal has been filed at the instance of the first defendant as appellant.
5. On the side of the appellant/first defendant, the following substantial questions of law have been raised for consideration:
"i) Where in a suit for permanent injunction, possession is a sine quo non for granting the relief, when the plaintiff has admitted the possession of defendants, whether the approach of the first appellate Court in granting the relief of injunction in favour of plaintiff is correct in law?
ii) When the pleadings and evidence disclose that the issue involving title to the suit property is a dominant one, whether a suit for injunction simpliciter, without a relief of declaration is maintainable?
iii) When the pleadings do not disclose that the defendant was deemed as a coparcenor and he held suit property in that status, whether the conclusion drawn by the first appellate Court that the purchase and holding of property by defendant is exempted from the provisions of Benami Transactions Prohibition Act, is sustainable?"
6. As agreed by the learned counsel appearing for both sides, the present second appeal is disposed of on merits at the stage of admission.
7. The present suit has been instituted for the relief of perpetual injunction mainly on the ground that the plaintiff has purchased the suit property by utilising his funds in the name of his son viz., the first defendant in benami and after purchase, he put up a construction and subsequently leased out the building which is in existence in the suit property to the defendants and the defendants are enjoying the same as the tenants of the plaintiff and the relationship of landlord and tenant is in existence between the plaintiff and defendants and now the first defendant has been making arrangements to alienate the suit property and he has also been making arrangements to collect rent from the second defendant.
8. It has been specifically contended on the side of the first defendant that the first defendant has purchased the suit property under a registered sale deed dated 24.01.1994 out of his funds and he has put up construction and therefore, he is the absolute owner of the suit property and no relationship of landlord and tenant is in existence between the plaintiff and first defendant. As adverted to earlier, the trial Court has dismissed the suit mainly on the ground that the contentions urged on the side of the plaintiff cannot be accepted. The first appellate Court has decreed the suit mainly on the ground that the plaintiff has purchased the suit property by using his funds in the name of his son viz., the first defendant in benami and therefore, the plaintiff is entitled to get the benefits available u/s 4 of the Benami Transactions (Prohibition) Act, 1988.
9. The entire plaint proceeds on the basis that there is a relationship of landlord and tenant between the plaintiff and defendants, and the first defendant has been making arrangements to sell the suit property and he is also making arrangements to collect rent from the second defendant.
10. The learned counsel appearing for the appellant/first defendant has laconically contended that in the plaint it has been specifically stated that the plaintiff has purchased the suit property by using his funds in the name of his son viz., the first defendant in benami and in the plaint it has not been specifically stated that both the plaintiff and first defendant are coparceners and the suit property has been purchased for the benefit of co-parcenery and in the written statement it has been specifically stated that the plaintiff is not having title to the suit property and since the title of the plaintiff has been denied by the first defendant, the plaintiff ought to have amended the plaint for the relief of declaration. But the plaintiff has not chosen to amend the plaint. The trial Court has rightly dismissed the suit. But the first appellate Court without considering the averments found in the plaint as well as in the written statement and also erroneously applying the provision of section 4 of the Benami Transactions (Prohibition) Act, 1988, has decreed the suit and therefore, the Judgment and decree passed by the first appellate Court are liable to be set aside.
11. Per contra, the learned counsel appearing for the respondent/plaintiff has also equally contended that the suit property has been purchased by the plaintiff by using his funds in the name of his son viz., the first defendant for the sake of convenience in benami and the trial Court has erroneously dismissed the suit, but the first appellate Court has rightly decreed the suit and even though the present suit has been instituted only for the relief of permanent injunction, title can be decided incidentally and the first appellate Court has rightly done it and therefore, the Judgment and decree passed by the first appellate Court are not liable to be interfered with.
12. Basing upon the divergent submissions made by either counsel, the Court has to analyse under what circumstances in a suit for injunction, simpliciter title can be decided incidentally.
13. In the decision reported in AIR 2008 SCW 2692 = 2009-2-L.W.546 (-reported in this issue) (Anathula Sudhakar Vs. P.Buchi Reddy (dead) by L.Rs. & Others), the Honourable Apex Court has culled out the following positions in regard to suits for prohibitory injunction u/s 38 of Specific Relief Act (47 of 1963) relating to immovable property:
(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). 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 fact of the case.
14. From the close reading of the decision referred to earlier, the following aspects have become emerged.
i) If there is a cloud with regard to title of the plaintiff, he ought to have filed a suit for declaration and possession and if title of the plaintiff is not in dispute and he is out of possession, he can very well file a suit for possession.
ii) In a suit for bare injunction, the Court has to consider only possession and normally issue of title would not be directly and substantially in issue. The prayer for injunction will be decided with reference to possession and in a case of vacant site, issue of title is directly and substantially arises for consideration and without finding with regard to title, it will not be possible to decide possession.
iii) In a suit for bare injunction, unless necessary pleadings and appropriate issue regarding title, title cannot be decided and further, if there is no sufficient pleading or if there is no issue relating to title, the Court will not investigate or examine or render a finding with regard to question of title in a suit for injunction and further if there are necessary pleadings and issue with regard to title in a suit for injunction and in the matter involves complicated questions of fact and law relating to title, the Court should direct the parties to file a comprehensive suit for declaration of title instead of deciding the issue in a suit for mere injunction.
iv) In a suit for bare injunction, if there are necessary averments regarding title and if appropriate issue has been framed with regard to title on which parties have adduced evidence, the Court can decide the issue regarding title, eventhough suit has been instituted for bare injunction and further the Court should use its discretion carefully to identify cases, where it will enquire into title and cases where it can direct the plaintiff to file comprehensive declaratory suit.
15. The present case has been instituted for the relief of perpetual injunction without seeking the relief of declaration mainly on the ground that the defendants are enjoying the suit property as tenants of the plaintiff. In the written statement filed by the first defendant, it has been clearly averred that no relationship of landlord and tenant exists between the plaintiff and defendants. Therefore, the only issue involved in the present suit is as to whether the defendants are enjoying the suit property as tenants of the plaintiff.
16. The trial Court has simply framed the first issue to the effect as to whether the plaintiff is entitled to get the relief of permanent injunction as prayed for. The trial Court has not at all framed any issue regarding title. The trial Court has discussed as to whether the suit property has been purchased by the plaintiff in benami in the name of the first defendant and ultimately found that the contentions of the plaintiff cannot be accepted and consequently, dismissed the suit. The trial Court has not discussed about the alleged relationship of landlord and tenant.
17. At this juncture, it would be more useful to look into the evidence of the plaintiff. The plaintiff has been examined as P.W. 1. He would say in his evidence during the course of cross examination that the defendants have broken the lock and trespassed into the suit property. Therefore, from the admission made by the plaintiff, the Court can easily ken that the defendants are trespassers and if that be the case, the plaintiff has not established the alleged relationship of landlord and tenant. Since the plaintiff has not established the alleged relationship of landlord and tenant, automatically, the plaintiff is out of Court.
18. The first appellate Court has elaborately dealt with the plea of benami transaction and ultimately found that the plaintiff has purchased the suit property under Ex.A1 in the name of his son viz., the first defendant in benami. It has already been pointed out that the trial Court has not framed any issue with regard to title. Without framing any issue, the trial Court has decided the alleged benami transaction and the first appellate Court has also decided the alleged benami transaction and ultimately found that the plaintiff has purchased the suit property by utilising his funds by benami in the name of the first defendant. The first appellate Court has invoked section 4 (3)(a) of the Benami Transactions (Prohibition) Act, 1988.
19. In fact, this Court has closely perused the entire averments made in the plaint. In the plaint, it has been simply stated that at the time of purchasing suit property under Ex.A1, the first defendant has attained only 19 years of age and he has had no independent income and the plaintiff has purchased suit property by utilising his funds in the name of the first defendant in benami. In the plaint, it has not been specifically averred that both the plaintiff and first defendant have lived as coparceners and for the benefit of coparcenery, the sale under Ex.A1 has been made in the name of the first defendant.
20. At this juncture, it would be apropos to look into section 4 of the Benami Transactions (Prohibition) Act, 1988 and the same reads as follows:
"4. Prohibition of the right to recover property held benami.- (1) No suit, claim or action to enforce any right in respect of any property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be real owner of such property.
(3) Nothing in this section shall apply,-
(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or
(b) Where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.
21. The provision of section 4 of the said Act can be vivisected as follows:
(a) As per sub section (1) of the said section, no suit can be instituted against a person in whose name property stands stating the suit property has been purchased in benami.
(b) As per sub section (2) of the said Act, no defence has been taken on the ground of benami against the person in whose name property stands.
(c) As per sub section 3(a) of the said Act, the Benami Transactions (Prohibition) Act, 1988 is not applicable in respect of the person in whose name property has been purchased is a coparcener in a Hindu joint family and the same has been purchased for the benefit of the coparceners.
(d) As per sub section 3(b) of the said Act, if any property has been purchased in the name of trustee or in the name of person standing in a fiduciary capacity, the said Act is not applicable.
22. In the instant case, even at the risk of jarring repetition, the Court would like to point out that the entire plaint simply proceeds on the basis that the plaintiff has purchased the suit property under Ex.A1 by utilising his funds in the name of the first defendant in benami. The plaint does not say that both the plaintiff and first defendant are coparceners at the time of execution of Ex.A1 and for the benefit of coparcenary, the suit property under Ex.A1 has been purchased in the name of the first defendant. Therefore, Section 4 (3)(a) of the Benami Transactions (Prohibition) Act, 1988 has no application to the present case. For invoking the provision of the said section, there must be necessary pleadings and proof to the effect that the concerned suit property has been purchased in the name of a coparcener for the benefit of coparcenary. But the first appellate Court without considering the provision of Section 4(3)(a) of the said Act properly and also without looking into the averments made in the plaint, has erroneously come to the conclusion that the plaintiff is entitled to get the benefits available u/s 4 (3)(a) of the said Act and therefore, the Judgment and decree passed by the first appellate Court are totally erroneous.
23. It has already been pointed out that as per the dictum of the Honourable Apex Court, in a suit for injunction simpliciter title can be gone into incidentally, provided, there must be necessary pleadings and also necessary issue regarding title. In the instant case, necessary averments with regard to title are available in the plaint. But the trial Court has not framed any direct issue with regard to title. Even though specific issue has not been framed by the trial Court with regard to title, from the available pleadings as well as the issues framed thereon, the Court can come to a conclusion that an issue with regard to title has been impliedly framed.
24. The specific contention of the plaintiff is that he purchased the suit property under Ex.A1 by utilising his funds in the name of the first defendant in benami. The first defendant has refuted the contention urged on the side of the plaintiff. Therefore, the entire burden lies upon the plaintiff to prove that he purchased the suit property in benami. As per section 4(1) of the Benami Transactions (Prohibition)Act, 1988, the plaintiff is totally debarred from raising the plea of benami transaction. Even assuming without conceding that the plaintiff is entitled to raise the plea of benami transaction, the Court has to consider as to whether the plaintiff has established the same.
25. The plaintiff, during the course of cross examination has stated that he purchased stamp papers for Ex.A1 and he has not known about the witnesses and further, he has stated that in Ex.A1, the sale consideration has been mentioned as Rs. 1,54,000/- and further he has candidly admitted that no recitals are found in Ex.A1 to the effect that the suit property has been purchased in the name of the first defendant as joint family member and the suit property has been purchased for the benefit of joint family. Therefore, from the evidence given by the plaintiff, the Court cannot come to a conclusion that he has established the fact in issue.
26. Now the Court has to analyse the contention urged on the side of the first defendant. The main averments made in the written statement by the first defendant are that the first defendant has purchased suit property by using his funds. In fact, on the side of the first defendant, Ex.B1 has been filed. Ex.B1 is a photocopy of the partnership deed dated 12.12.1990, wherein it has been specifically stated that the first defendant is also one of the partners of the firm mentioned in Ex.B1. The suit property has been purchased on 24.01.1994 under Ex.A1 for a sum of Rs. 82,300/-. Since the first defendant has become one of the partners of the firm mentioned in Ex.B1 in the year 1990, definitely he would have purchased the suit property under Ex.A1 by utilising his funds. On that ground also the contention of the plaintiff can easily be rejected. The first appellate Court has granted a decree in favour of the plaintiff on the ground that Ex.A1 has been produced on the side of the plaintiff. Of course, it is true that Ex.A1 has been produced on the side of the plaintiff. Ex.A1 is original sale deed. The plaintiff is the father of the first defendant. Since the plaintiff is the father of the first defendant, he might have taken Ex.A1 and subsequently produced before the Court and that itself is not sufficient to hold that the suit property has been purchased by the plaintiff by utilising his funds in the name of the first defendant in benami. In a case of benami transaction, the first and foremost aspect is motive for transaction. In the instant case, it has been stated only for the sake of convenience, the plaintiff has purchased the suit property in the name of the first defendant in benami. The motive or the purpose mentioned in the plaint is not at all sufficient to hold that the plaintiff has purchased the suit property in benami in the name of the first defendant. Therefore, viewing from any angle, the Judgment and decree passed by the first appellate Court are not factually and legally sustainable and the same are liable to be set aside.
27. In view of the foregoing narration of both the factual and legal premise, this Court has found subsisting force in the argument advanced by the learned counsel appearing for the appellant/first defendant and the argument advanced by the learned counsel appearing for the respondent/plaintiff is sans merit and further all the substantial questions of law raised on the side of the appellant/first defendant are decided in his favour and altogether, the present second appeal is liable to be allowed. In fine, this second appeal is allowed without cost at the stage of admission. The Judgment and decree passed in Appeal Suit No. 8 of 2008 by the Sub Court, Karur are set aside and the Judgment and decree passed in Original Suit No. 640 of 2003 by the Additional District Munsif Court, Karur are restored. Connected MP(MD)No.1 of 2008 is closed.
