- (1.) THE instant second appeal under Section 100 CPC is directed against the judgment and decree dated 05.03.2011 passed by the learned court of Civil Judge (Sr. Division), Phalodi dismissing the Civil Original Suit No.05/2006- Tola Ram Vs. Mohan Lal and, so also, the appellate Court's judgment and decree dated 27.04.2011 passed by learned Additional District Judge, Phalodi, District: Jodhpur dismissing appeal filed by the plaintiff-appellant being Civil Appeal No.01/2011-Tola Ram Vs. Mohan Lal.
(2.) BOTH the courts below have concurrently dismissed the suit filed by the appellant-plaintiff for prohibitory and mandatory injunction in respect of suit property, a plot of land situated at Village- Hopardi, Tehsil Phalodi, over which the respondent-defendant, Mohan Lal, also claimed his title. The courts below have not believed the "Patta" produced by the appellant-plaintiff, Tola Ram. Learned counsel for the appellant, Mr. Narendra Thanvi, relying upon judgments rendered in the case of Corporation of City of Bangalore Vs. M. Papaiah & Anr. reported in AIR 1989 SC 1809 and in the case of Abdul Latif & Ors. Vs. Nagar Vikas Pranyas, Udaipur, reported in 2006 (3) RLW 2268 submitted that the suit could not have been dismissed even though injunction on basis of long possession of the plaintiff was claimed by the plaintiff. On the other hand, Mr. Prabhat Ojha, learned counsel for the respondent-defendant relying upon a decision in the case of Anthula Sudhakar Vs. P. Buchi Reddy (Dead) by LR's & Ors. reported in (2008) 4 SCC 594 submitted that where a cloud of suspicion is raised over the title of the plaintiff, no injunction could be granted as the plaintiff has miserably failed to establish his title over the suit property. In support of his contention, he relied upon Clause (a) of the head note of said judgment, which is also reproduced herein below for ready reference: "(a). Where a cloud is raised over the 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 a merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown." In view of above legal position laid down by the Hon'ble Supreme Court, in the considered opinion of this Court, no substantial questions of law arises in the present second appeal since the plaintiff-appellant in the present case has utterly failed to claim relief of declaration in respect of his title, which was seriously disputed by the defendant, who also produced his title over the same property; and the plaintiff-appellant having failed in establishing his possession also, the courts below on the appreciation of the evidence, were perfectly justified in rejecting the suit for injunction in favour of plaintiff-appellant. The appeal, therefore, is liable to be dismissed and the same is accordingly dismissed. At this stage, the learned counsel for the appellant- plaintiff, Mr. Narendra Thanvi, submitted that the plaintiff-appellant may be given liberty to file fresh suit for declaration of title and other consequential relief/s. He may do so, and the observations made in this judgment or the courts below about the title, shall not come in the way of appellant-plaintiff.
(3.) IN the result, the present second appeal filed by the appellant-plaintiff is dismissed accordingly. No costs. A copy of this judgment be sent to the both the courts below forthwith.;