“ Even the plaintiff found in possession but his title to the
property is in dispute, or under a cloud or where defendant
asserts title the plaintiff has to sue for declaration of title and
for consequential relief “.
31: To the instant case all the decisions relied upon by the
learned counsel for the defendant aptly applies and also it is very clearly
held by the Hon’ble Apex court in the above decisions in Civil appeal
No.xxxxxxccc that the remedy for
the plaintiff is to seek for declaration
of title and not for merely seeking for permanent injunction. To the
Instinct case much prior to instant suit under Ex.B5 itself defendant
disputed title of the vendors of the plaintiff. When such is the case the
suit ought to have been filed for declaration of title. Therefore merely
seeking for permanent injunction wherein court is constrained only to
look into possession and also only rights of the parties incidentally. To
the instant case the defendant has placed better rights in the light of
old document Ex.B5 and also shown possession. Therefore suit for mere
permanent injunction wherein there is a serious dispute over title mere
suit for permanent injunction cannot be maintainable and the suit of the
plaintiff was rightly dismissed by the learned Junior Civil Judge,
Defendant
