Summary
The Supreme Court held that a title-based injunction suit did not require a declaration merely because the defendants claimed adverse possession against the plaintiff’s admitted predecessor. Although the later declaration amendment was time-barred, that did not defeat the original suit. Possession and the adverse-possession counterclaim still required determination. The second appeal was remitted to the High Court for consideration of the remaining issues.
Issues
- Whether the adverse-possession plea raised a cloud requiring a declaratory suit.
- Whether limitation affecting the later declaration amendment defeated the original injunction suit.
- How the unresolved suit and counterclaim issues should be determined in second appeal.
Provisions considered
- Schedule, Article 58, Limitation Act, 1963The declaration amendment was time-barred on the pleaded dates, but the original suit was not challenged as barred and did not require that declaration. (¶¶ 9, 18, 19, 21)
- Section 100(5), proviso, Code of Civil Procedure, 1908On remand, the High Court was directed to frame additional substantial questions of law and decide the restored second appeal. (¶¶ 19, 20, 21)
Held
- The defendants admitted the father’s ownership and failed to prove the alleged partition vesting exclusive title in the plaintiff’s brother. The plaintiff was at least a co-owner. Their assertion of possession in part-performance of a sale agreement was inconsistent with the hostile possession required for adverse possession. (¶¶ 11, 12, 13, 14)
- A declaration is required where the challenge genuinely clouds title. An adverse-possession claim against the plaintiff or his predecessor presupposes that title; on these pleadings, it did not by itself require a declaration. The original injunction suit was maintainable. (¶¶ 15, 16)
- The plaintiff still had to establish possession when the suit was instituted; failure would defeat the injunction claim. The defendants bore the burden on their adverse-possession counterclaim, which was a cross-suit. These merits were not finally decided. (¶¶ 14, 17, 18, 20, 21)
- The declaration amendment remained barred by limitation, but that did not dispose of the original suit. The High Court had to decide the other issues upon appropriate substantial questions of law. (¶¶ 18, 19, 20, 21)
Result
Appeal partly allowed without costs. High Court judgment set aside and second appeal restored, with additional substantial questions of law to be framed. Limitation ruling on the amendment preserved; all other issues open. Priority hearing directed, with parties to appear on 30 October 2023.