ORDER
D.S.R. Varma, J.
1. This revision is directed against the order dated 9.4.2003 passed in I.A. No. 2 of 2003 in O.S. No. 98 of 1997 on the file of the Additional Junior Civil Judge, Adoni dismissing the application filed under Order 14, Rule 5 of C.P.C. seeking framing of an additional issue with regard to adverse possession in respect of suit schedule property.
2. For convenience sake, the parties are being referred to as arrayed in the suit. The plaintiff filed the suit for perpetual injunction. The defendant filed written statement contending inter alia that he has been in possession and perfected the title by adverse possession. This aspect also is not in dispute. Evidence had been adduced by both sides. Written arguments have also been submitted to the Court. At that stage, on the ground that the revision is pending, the matter is being adjourned from time to time.
3. The only point that falls for consideration is as to whether an additional issue can be framed in a suit for permanent injunction particularly at a stage where the suit has been coming up for arguments.
4. Sri Chalapathi Rao, learned Counsel appearing for the petitioner contends that the petitioner-defendant had specifically pleaded in the written statement that he has been in possession of the suit schedule property and also secured the title by adverse possession apart from other grounds. Issues have been framed by the Court below. But the specific issue with regard to the adverse possession was not framed. He further submitted that this issue can also be framed and a finding can be recorded by the Trial Court in view of specific pleading in the written statement.
5. The learned Counsel appearing for the respondent-plaintiff contends that as the suit filed by the plaintiff was only for a permanent injunction, the issue regarding the adverse possession need not be gone into. It is his further contention that in a suit for permanent injunction, particularly the aspect of title on the basis of adverse possession cannot be taken and even if it was taken, a finding need not be recorded by the Court below on that aspect. He further contended that it is too late for the defendant seeking the Court below to frame an additional issue regarding the adverse possession.
6. A Division Bench of this Court in Mohd. Kareemuddin Khan v. Syed Azam, (DB), dealing with the similar question held that where parties adduce evidence in respect of a matter for which an issue has not been struck and both sides, are well aware of the dispute which relates to the issue, the defect of non-framing of the issue is cured and there will be no inherent lack of jurisdiction in the Court to go into that question and decide that aspect of the matter. Learned Counsel appearing for the respondents contended that the proposition laid down by the Division Bench of this Court in a suit for title and recovery of possession. Therefore, the above principle laid down by the Division Bench is not applicable in the present set of facts. In this regard it is to be noted that in a suit for permanent injunction the Court as a general principle cannot go into and decide the title of the parties. However, the Court may go into the title aspect incidentally.
7. The Hon’ble Apex Court in Gram Panchayat of Village Naulakha v. Ujagar Singh, , while dealing with the aspect of principle of res judicata, held as under:
“that even if, in an earlier suit for injunction, there is an incidental finding on title, the same will not be binding in a later suit or proceeding where title is directly in question, unless it is established that it was “necessary” in the earlier suit to decide the question of title for granting or refusing injunction and that the relief for injunction was founded or based on the finding on title. Even the mere framing of an issue on title may not be sufficient as pointed out in that case.”
8. In the judgment of the Apex Court in Sajjadanashin Sayed v. Musa Dadabhai Ummer, , their Lordships discussed about the matters ‘directly and substantially in issue’ and matters ‘collaterally and incidentally in issue’. These two judgments have been referred to by this Court in detail in Mulla Madar Bee v. Tenali Ramakrishnaiah, .
9. From the above factual and legal aspects, it is clear that in a suit for injunction, the issue regarding title can also be framed, but it is for the Trial Court to decide that issue as ‘direct and substantial’ or ‘collateral or incidental’. It is also clear that in a suit for injunction the said issue of title is decided only as a collateral issue and finding thereof would not bar the affected party to file a fresh suit claiming title notwithstanding an adverse finding recorded in the earlier suit for injunction.
10. Furthermore, in the instant case, it has been submitted by the learned Counsel for the petitioners that no further evidence would be adduced on the issue even if framed.
11. It. The desirability of framing an issue by the Court as regards the title particularly by way of adverse possession, when a specific averment has been made in the written statement, cannot be ignored. However, it is for the Court below to record a finding as to whether the said issue of adverse possession was as incidental issue or substantial issue basing on the evidence on record.
12. For the reasons set forth hereinabovc, and in view of the judgments referred to supra and also having regard to the undertaking given by the Counsel for the petitioners that no further evidence would be adduced, I am of the considered view that the impugned order is liable to be set aside and accordingly the same is set aside.
13. In the result, the revision is allowed. No costs.