The question of title can be gone into, in simpliciter suit for injunction - if issues are framed in that regard; SC.

Supreme Court of India

Justice A S Bopanna & Justice Indira Banerjee

The SC {Jose v. Johnson} holds that the observations   made   by   the   High   Court   relating   to   the consideration required being only of possession since the suit was for perpetual injunction is without reference to the nature of contentions put forth in a suit, the issues that   had   been   raised   for   consideration   and   the conclusion that had been reached by the trial court as also   the   lower   appellate   court   in   that   background. It was held  that   in   the   facts   and circumstance of the present case the High Court was not justified, but the conclusion of the lower appellate court to set aside the judgment and decree of the trial court and remand the matter for reconsideration by the trial court was the appropriate course. 

It was held that each case will have to be examined on its own merits keeping in view the nature of the   pleading   put   forth   before   the   trial   court   and   the understanding of the case with which the parties have gone to trial. If this aspect is kept in view the very nature of the plaint averments would indicate that the parties to the suit are related to each other and the property which was being commonly enjoyed by their predecessors was partitioned under the Deed No.2617/2007. The present dispute had arisen when the plaintiff was seeking to put up a construction of the wall and the defendants had objected to the same. And the issues were also framed in that regard. The SC upheld the approach of lower appellate court - as to question of title can be gone into in the case of perpetual injunction - the direction by the lower appellate Court to remand the matter to trial court for recording additional evidence on the application of the defendant qua identification of the suit property.

In the present case, the appeal filed by the plaintiff before the High Court, the High Court on taking note that the suit was for perpetual injunction only and in that light since the possession of the plaintiff not being in serious dispute, was of the opinion that the title to the property was not relevant. In that circumstance, the High Court was of the opinion that the learned Judge of the lower appellate court was not justified in arriving at the conclusion that the property is to be measured on the basis of the title deed.   In that view, the High Court has set aside the judgment of the lower appellate court and restored the decree passed by the trial court. The said view of the HC was set aside by the SC.