Substantial Question of law- Whether suit for mandatory injunction is maintainable without seeking for the possession of the property.
The legal position governing cases where there exists a cloud over both title and possession of immovable property is well settled. In Anathula Sudhakar vs. P. Buchi Reddy (Dead) by Lrs. And Others (2008) 4 SCC 594 the Hon’ble Supreme Court has authoritatively delineated the circumstances in which a suit for injunction simpliciter would or would not be maintainable. The Hon’ble Supreme Court, after an exhaustive survey of the law, held as under:
“13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled.
We may refer to them briefly.
13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
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15. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff’s possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.
16. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs.”
The Hon’ble Supreme Court has reaffirmed the aforesaid legal position governing cases where there exists a cloud over both title and possession of immovable property recently in Sanjay Paliwal and another vs Bharat Heavy Electricals Ltd. in Civil Appeal No. 6075 of 2016, Judgment dated 15th January, 2026. In this matter i.e. Sanjay Paliwal (Supra), the Hon’ble Supreme Court has held that the factual matrix in Sant Lal Jain v. Avtar Singh (1985) 2 SCC 332 and Joseph Severance & Others v. Benny Mathew & Others (2005) 7 SCC 667 are illustrative of such situations, where the grant of a mandatory injunction was found to be appropriate in the absence of a prayer for possession. In view of the aforesaid factual analysis, we are of the considered opinion that the reliance placed by the learned Senior Counsel for the plaintiffs on the decisions in Sant Lal Jain and Joseph Severance does not advance the case of the plaintiffs and is inapplicable to the facts of the present case.
This conclusion is reached for several reasons. Firstly, in both the aforesaid decisions, the defendants had entered into possession of the property permissively as licensees. Secondly, the relationship between the parties was either admitted or conclusively proved. Thirdly, the alleged dispossession was recent, and Fourthly, there existed no serious dispute with regard to title or the identity and boundaries of the property. It thus follows that the ratio laid down in Sant Lal Jain and Joseph Severance applies to cases involving permissive possession. In contradistinction, in the present case, as noticed, there exists a serious dispute concerning both title and possession, coupled with serious dispute about identity of the land in question viz. suit schedule property. Consequently, the ratio of the aforesaid decisions cannot be extended to the present factual matrix.
The principles enunciated in Anathula Sudhakar (supra) govern cases where there exists a dispute as to title and rival claims of possession, whereas the decisions in Sant Lal Jain and Joseph Severance apply to situations where the defendant is a terminated licensee or permissive occupant, having no independent or competing right in the property. In cases such as Sant Lal Jain and Joseph Severance, there was no cloud over title or possession, or where the defendant’s occupation flows from a licence or permissive arrangement, a suit for mandatory injunction is maintainable as the most efficacious remedy. Viewed thus, there is no inconsistency between the aforesaid judgments, each operating in its own distinct factual and legal sphere.
In the present case Sanjay Paliwal (Supra) as noticed hereinabove, there exists a serious dispute with regard to title, the question that arose was whether the plaintiffs had derived a valid and enforceable title from their predecessors-in-interest. Even assuming, arguendo, that the plaintiffs possess a valid title, the High Court has rightly held that where there is a construction raised on the disputed property alleged to be owned by the plaintiffs, the appropriate and efficacious remedy available to them was to institute a suit for possession along with a consequential relief of injunction, and not a suit for injunction simpliciter. Thus, upon applying the aforesaid principles, the High Court has rightly held that the plaintiffs’ suit was barred under Section 41(h) of the Specific Relief Act, 1963, inasmuch as the plaintiffs failed to seek the relief of possession despite the existence of a cloud over possession of the disputed property. The suit for injunction simpliciter was, therefore, not maintainable.
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