AIR 2006 SC 3275, M. Gurudas & Ors. VS Rasaranjan & Ors.

While considering an application for injunction, the courts would pass an order thereupon having regard to: (i) prima facie (ii) balance of convenience (iii) irreparable injury. A finding on `prima facie case' would be a finding of fact. However, while arriving at such finding of fact, the court not only must arrive at a conclusion that a case for trial has been made out but also other factors requisite for grant of injunction exist. The contention of the plaintiffs must be bona fide. The question sought to be tried must be a serious question and not only on a mere triable issue.

An appellate court would not ordinarily interfere with but then there are certain exceptions thereto. The courts below have not applied their mind as regards balance of convenience and irreparable injury which may be suffered by the appellants. The properties may be valuable but would it be proper to issue an order of injunction restraining the appellants from dealing with the properties in any manner whatsoever is the core question. They have not been able to enjoy the fruits of the development agreements. The properties have not been sold for a long time. The commercial property has not been put to any use. The condition of the properties being remaining wholly unused could deteriorate. These issues are relevant. The courts below did not pose these questions unto themselves and, thus, misdirected themselves in law.

The conduct of the defendants was indisputably relevant. But, then conduct of the plaintiffs would also be relevant. Therefore, the court while granting an order of injunction, would take into consideration as to whether the plaintiffs have pre-varicated their stand from stage to stage. Even this question had not been adverted to by the courts below. Further, while doing so, the courts would look into the documents produced before the trial court as also the appellate court in terms of Order 41, Rule 27 CPC but the same would not mean that this Court must confine itself only to the questions which were raised before the courts below and preclude itself from considering other relevant questions although explicit on the face of the records. Questions of law in a given case may be considered by this Court although raised for the first time. The question as to whether this Court would permit the parties to raise fresh contentions, however, must be based on the materials placed on records. While making endeavours to find out a prima facie case, the court could take into consideration the extent of plaintiffs' share in the property, if any.

T. Anjanappa & Ors. v. Somalingappa & Anr. [(2006) 7 SCC 570], stating : It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner s title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former s hostile action.

We may also notice that this Court in M. Durai v. Muthu & Ors. [(2007) 3 SCC 114], noticed the changes brought about by Limitation Act, 1963, vis-a-vis, old Limitation Act, holding : The change in the position in law as regards the burden of proof as was obtaining in the Limitation Act, 1908 vis-a-vis the Limitation Act, 1963 is evident. Whereas in terms of Articles 142 and 144 of the old Limitation Act, the plaintiff was bound to prove his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession.

noticed by Supreme Court in Karnataka Board of Wakf v. Government of India and Others [(2004) 10 SCC 779] in the following terms: "Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession"