ORDER
1. These petitions have been filed seeking to review the common judgment dated 27-9-1999 delivered in Second Appeal Nos.239 and 40 of 1997.
2. Brief history' One Dr. Mandakini Naik, Susheela Naik and G.K. Naik are sisters and brother. Claiming that the suit schedule property (House bearing Muncipal No.1-11-254 together with mulgies and a well situated in Prakash Nagar, Begumpet, Hyderabad) is her exclusive property by virtue of a will dated 8-5-1962 executed in her favour by her father late Krishnaji Naik, Mandakini Naik filed OS No.133 of 1983 on the file of the Principal Subordinate Judge's Court, Rangareddy District, Saroornagar, Hyderabad, against herbrother G.K. Naik alleging that she is the owner of the said property and has been in continuous possession and enjoyment of the same right from the date of execution of the will. While so, her brother (G.K. Naik) has no manner of right, title or interest in the suit property and he is interfering with her peaceful possession of the plaint schedule property by instigating the tenants, who are in occupation of some portion of the suit properly, not to pay rentals to her. It is alleged that on 21-6-1982, G.K. Naik has demolished the wall situated in the suit property. So, she filed the suit seeking the relief of perpetual injunction in respect of the suit property restraining her brother G.K. Naik from interfering with her peaceful possession and enjoyment of the suit property.
3. The defence set up by G.K. Naik in his written statement is that the will is a fabricated one and no such will was ever executed by their father in favour of Mandakini Naik. The suit property is the joint family property and he is entitled to equal share along with Mandakini Naik. So, Mandakini Naik is not entitled to the relief sought for in the suit.
4. G.K- Naik later filed a suit - OS No.54 of 1984 on the file of the same Court in respect of the very same property against his sisters-Mandakini Naik and Susheela Naik, seeking the relief of perpetual injunction, taking the very same pleas which he had taken in his written statement filed in Mandakini Naik's suit. It is also his contention in his suit that Mandakini Naik was trying to raise a wall in the suit property separating the mulgies from the house. So, he filed the present suit seeking the relief of perpetual injunction restraining his two sisters from alienating the suit properties to third parties.
5. Mandakini Naik filed written statement in the suit basing her claim on the will and denying the title of her brotherG.K. Naik to the suit property. She reiterated her stand which she had taken in her suit (OSNo.133 of 1983).
6. Issues were framed separately in both the suits. In OS No.133 of 1983, the following issues were framed:
(1) Whether the plaintiff is entitled for perpetual injunction as prayed for in the plaint?
(2) Whether the interference alleged by the defendant is true?
(3) To what relief?
In OS No.58 of 1984, the following issues were framed:
(1) Whether the plaintiff is entitled for perpetual injunction as prayed for?
(2) To what relief?
7. Common trial was conducted in both the suits. On behalf of Mandakini Naik, four witnesses were examined. She got herself examined as PW1. While so, on behalf of G.K. Naik, he himself was examined as DW1 and none others were examined on his behalf. Exs.A1 to A12 were marked on behalf of Mandakini Naik. On behalf of the defendant G.K. Naik, Exs.Bl to B26 were marked. On a consideration of the entire evidence, the trial Court held that the will (Ex.A1) and also another will (Ex.A2) have been proved by PW1 (Mandakini Naik) to have been executed by late Krishnaji Naik in the light of the evidence of PWs.2 to 4 as required under law; that Mandakini Naik came into possession of the suit property through Exs.A1 and A2. The trial Court ultimately held as follows:
'The circumstances shown in the light of Exs.A1 and A2 the plaintiff in OS No.133 of 1983 has got a better case and established her possession over the suit schedule property. The plaintiffspossession over the property of suit schedule is flown through the will deedand codicil.'
The trial Court accordingly held that Mandakini Naik has proved her possession over the suit schedule property by virtue of Exs.Al and 2 and that she is, therefore, entitled to the perpetual injunction as sought for by her. Consequently, the trial Court decreed the suit filed by Mandakini Naik i.e., OS No.133 of 1983 and dismissed the suit filed by G.K. Naik i.e., OS No.58 of 1984, G.K. Naik challenged the findings of the trial Court by filing AS Nos.50 of 1992 and 58 of 1992. The lower Appellate Court held that when there is dispute regarding the title of the property, the suit filed by Mandakini is not maintainable without seeking the relief of declaration of title. In view of the said finding, the lower Appellate Court was of the opinion that there is no need to consider the question of validity of the wills. So, it did not go into the aspect of the genuineness or otherwise of the wills. In regard to possession, the lower Appellate Court held that the documents filed by Mandakini Naik amply prove that she has been in possession and enjoyment of the suit property. But, in view of its earlier finding that the suit itself is not maintainable, it declined to grant any relief in favour of Mandakini Naik. Insofar as the relief prayed for in the suit filed by G.K. Naik is concerned, the lower Appellate Court held that since Mandakini Naik failed to establish her claim to the suit property, she is not entitled to alienate the suit property. Accordingly, the lower Appellate Court allowed the two appeals and set aside the judgment of the trial Court. It further directed that :
'the possession of the plaintiff (in OS No.133 of 1983) over the suit property can be disturbed only by due process of law and further directing that she should not make any alienation or alteration orimprovements of the schedule property till establishing her absolute rights therein.'
Aggrieved by the said common judgment of the lower Appellate Court, Mandakini Naik filed Second Appeals Nos.40 and 239 of 1997 respectively. The learned single Judge of this Court (in his judgment dated 27-9-1999), holding that a suit for injunction without the relief of declaration of title is very much maintainable, reversed the finding of the lower appellate Court on this aspect. But, in regard to the proof of the wills, the learned single Judge held as follows:
'This Court has pointed out that for the purpose of granting decree for injunction, the plaintiff has to make out lawful possession, but not necessarily title. In the instant case, what is to be established by the plaintiff in both the suits is their lawful possession, on the basis of the oral and documentary evidence on record. For that purpose, the validity of the will pleaded by the plaintiff in OS No.133 of 1983 also incidentally has to be gone into on the basis of the evidence on record. In this view of the matter, the entire approach of the Appellate Court in holding that a bare suit for injunction would not be maintainable is totally illegal and contrary to the judgments of this Court. ....'
For the above reasons, the learned single Judge without expressing any opinion as to the merits of the case, set side the judgment and decree of the lower appellate Court and remanded the matter back to the lower appellate Court for fresh disposal in accordance with law.
8. It is the said judgment which is sought to be reviewed before me by the defendant G.K. Naik. It is contended by the learned Counsel for the review petitioner that when the very title of the plaintiff to the suit property is disputed by the reviewpetitioner, the Court, in the absence of any specific prayer with regard to the declaration of title, is not entitled to go into the aspect of title and declare the plaintiff's title to the suit property and that the direction of the learned single Judge given to the lower appellate Court while remanding the matter to go into the validity of the wills, would amount to virtually prompting the lower appellate Court to adjudicate upon and declare the title of the plaintiff (Mandakini Naik) to the suit property even though there is no relief sought for to that effect. It is, therefore, contended that the learned single Judge committed a serious error while directing the lower Appellate Court to go into the aspect of genuineness or otherwise of the wills. According to the learned Counsel, the direction of the learned single Judge would virtually amount to enlarging the scope of the suit thereby converting the suit for bare injunction into a suit for declaration and injunction. Learned Counsel contended that the judgment of the learned single Judge is contrary to the law laid down by the Supreme Court in T. Venkata Narayana v. Smt. Venkata Subbamma, : [1996]3SCR1042 , wherein it was held that the suit for bare injunction cannot be converted into a suit for declaration of title. It is, therefore, contended that the judgment of the learned single Judge is vitiated by error apparent on the face of the record and the same is therefore liable to be reviewed.
9. It has been well settled that a bare suit for injunction is maintainable. Further, in a suit for bare injunction, in order to satisfy itself about the right of the plaintiff over the suit property in respect of which the injunction is sought for, the Court can incidentally go into the aspect of the right and title of the plaintiff to the suit property with reference to the documents which are filed into Court and can come to a prima facie conclusion about the title of the plaintiff to the suit property. If the Court feels that the plaintiff's right and title is undisputedand that his possession over the suit property is undisturbed all these days, the Court can grant the relief of injunction. But, in such a suit, it is not entitled to declare the tile of the plaintiff as the scope of the suit for injunction is very limited and different from the scope of the suit for declaration of title. So, in the absence of a relief of declaration of title to the suit property, the Court, in the suit for bare injunction, is not entitled to declare the tile of the plaintiff. As already seen, the plaintiff in this case (Mandakini Naik) sought for the relief of bare injunction on the basis of the wills. Even inspite of specific contention taken by the defendant (G.K. Naik) in his written statement that the will-Ex.A1 is a forged one and no such will was ever executed by their father, the plaintiff, for the reasons best known to her, neither took steps for the amendment of the plaint including the relief of declaration of title also nor raised any issue to that effect in the trial Court, which would have clinched the whole dispute. This is necessary especially when the plaintiff is seeking the relief of injucntion basing her claim on a will, the proof of which is different from ordinary title deeds like sale deed etc. In the absence of such relief as to the declaration of title, the Court can, for the limited purpose of granting injunction in respect of the suit property, go into the aspect of title of the plaintiff to the suit property but it certainly is not entitled to declare her right to the suit property in this suit. But the learned single Judge did exactly the same thing while remanding the matter to the lower appellate Court. The judgment of the learned single Judge is, for this reason, vitiated by an error apparent on the face of the record and the same is liable to be reviewed.
10. At this stage, learned Counsel for the respondent (Mandakini Naik) tired to contend that inasmuch as the defendant failed to take the plea with regard to the non-insertion of the relief of declaration of title at the earliest opportunity, the defendant isnow estopped to raise such a plea before this Court. But, in my opinion, this plea being a pure question of law, it can be taken at any stage. So, the contention of the learned Counsel for the respondent is rejected. Learned Counsel for the respondent nextly laid great emphasis on a decision of the Madras High Court in Krishnan v. Lakshmi Ammal, (1989) 1 MLJ 429, wherein it was held that 'for the purpose of finding out whether the plaintiff has got right to lawful possession, so as to maintain that possession, the question of title can certainly be gone into' and another decision of the Supreme Court in Nagar Palika, Jind v. Jagat Singh, : [1995]3SCR9 , wherein it was held that in a suit for injunction based on title, the Court must record a finding in respect of the title of the plaintiff over the suit land. Taking aid of the above decisions learned Counsel contended that in a suit for injunction, the Court is certainly entitled to go into the aspect of title to the suit land and that so the learned single Judge is perfectly justified in remanding the matter for the purpose of going into the aspect of title to the suit property. There is no difficulty in understanding the ratio laid down in the above two decisions, as per which, the Court is entitled to go into the aspect of title to the suit property so as to grant the relief of declaration. But, nowhere it is laid down in the above two decisions that the Court must not only go into the aspect of title but also should declare the title of the plaintiff in a suit for bare injunction. As already held by me in the preceding paragraph, in a suit for injunction simpliciter, the Court can go into the aspect of title but, in the absence of relief of declaration of title, it is not entitled to declare the title of the plaintiff. This is exactly what is stated by the Supreme Court and the Madras High Court in the aforementioned decisions. Therefore, the decisions cited by the learned Counsel will not be helpful. Learned Counsel for the respondent also cited a decision of a learned single Judge of this Court in M. Narayana v. M. Suryakantham, : 1999(2)ALD132 .That case arose out of a suit for bare injunction, wherein a will was sought to be marked as evidence and the same was refused by the Court below. Aggrieved by the said refusal, the parties approached this Court. The learned single Judge held that unless the will is probated as required under Section 57 of the Indian Succession Act, the same cannot be marked in evidence. Learned single Judge in the said judgment quoted with approval the judgment of Madras High Court in A.L V.R. Ct. Veerappa Chettiar v. Arunachalam Chetti, AIR 1936 Mad. 200, wherein it was held that the question of title also may have to be incidentally gone into in deciding a suit for mere injucntion. As already stated, there is no quarrel with regard to the proposition laid down in the said decision. But, I have already pointed out that the said proposition does not enure to the benefit of the respondent. Learned Counsel cited another decision of a Division Bench of this Court in A.S. Murthy v. D. V.S.S. Murthy, 1979 (II) ALT 347. That decision arose out of a suit filed for recovery of properties of the deceased person, on the basis of a will, without obtaining a probate of the will. The Division Bench held that such a suit is maintainable. That decision, in my opinion, is not at all applicable to the facts of the case on hand and it is beyond the point. Learned Counsel for the respondent also cited some other decisions. But, having perused all those citations, I am of the view that they are not applicable to the present issue.
11. As it is held by me that the Court is not entitled to go into the aspect of genuineness or otherwise of the wills, the judgment of the learned single Judge remanding the matter back to the lower appellate Court is liable to be reviewed. For this reason, I am inclined to uphold the contention of the learned Counsel for the review petitioner.
12. Further, as rightly held by the lower appellate Court, unless and until theplaintiff is able to prove the wills-Exs.A1 and A2 by filing a separate suit for declaration of her title to the suit property and obtain the decree of declaration of her title, the property in dispute will continue to be the joint property of plaintiff and defendant and till such time, the plaintiff (Mandakini Naik) is not entitled to alienate the suit property. Therefore, till such time, G.K. Naik (defendant) is entitled to the relief of perpetual injunction against Mandakini Naik and Susheela Naik from alienating the suit property. The suit filed by him (G.K. Naik) is accordingly decreed.
13. The review petitions are accordingly allowed in part. No costs.