Judgment:-Being aggrieved by the reversal judgment and decree in A.S.No.178 of 2003, dated 12.08.2004, on the file of the Additional Sub Court, Mayiladuthurai, the plaintiffs, seeking for a permanent injunction, have filed the present second appeal. 2. According to the plaintiffs, the suit property belongs to them. Earlier, the property allotted to the defendants' father, Thiru.Govidaraj, as per the family partition, by way of registered release deed, dated 15.11.1954, was given to the grandfather of plaintiffs 2 and 3. Since 1954, the suit property was in possession and enjoyment of the plaintiffs' family. On 09.01.2000, when the defendants have attempted to interfere, a complaint was given to Kuthalam Police Station. No action was taken. The defendants attempted to damage the concrete posts on the either side of the suit property and further attempted to remove the barbed fence. Hence, the plaintiffs were constrained to file a suit for permanent injunction. 3. The 1st defendant denied the contention that there was an attempt to encroach upon the suit properties. According to him, the properties on the eastern side of the suit schedule property, were allotted to the defendants' father, Thiru.Govindaraj and that the same were enjoyed in common by the defendants along with him. Pursuant to a family dispute on 12.05.1995, a compromise was arrived at between the parties, by which, the properties were partitioned between Thiru.Govindarajan and his brother, Thiru.Varadharajan. The first defendant has further contended that since 12.05.1995, half of the properties on the western side, were allotted to Govindaraj and that he was in possession and that enjoyment of the same. 4. The 2nd defendant in his written statement has denied the contention that the suit properties exclusively belong to the plaintiffs. He has further submitted that Thiru.Iyyaru Vanniar and Thiru.Manickam are the two sons of Thiru.Muthupadaiyachi. The 1st plaintiff is the wife of Thiru.Iyyaru Vanniar. Plaintiffs 2 and 3 are her sons. His brother Thiru.Manickam had wife and sons. There was no partition agreement between Thiru.Iyyaru and Thiru.Manickam. As the properties were joint family properties, the contention of the plaintiffs that the suit properties exclusively belong to them is not correct. The head of the family, Thiru.Muthupavadai, along with other sharers were maintaining the properties and when Thiru.Govindaraj was aged 20 years, the defendants' grandfather Thiru.Kumarasamy died and thereafter, he was under the supervision of his maternal uncle Thiru.Muthupavadai and that the properties in enjoyment were common. The head of the family, Thiru.Muthupavadai, along with other sharers were maintaining the properties and when Thiru.Govindaraj was aged 20 years, the defendants' grandfather Thiru.Kumarasamy died and thereafter, he was under the supervision of his maternal uncle Thiru.Muthupavadai and that the properties in enjoyment were common. On 14.11.1954, Thiru.Govindaraj has executed a registered partition in favour of Thiru.Muthupavadai and since then, he was in possession and enjoyment of the properties till his death. Either Thiru.Muthupavadai or his heirs are entitled to any right or title over the properties partitioned in favour of Thiru.Govindaraj. His son Thiru.Kaliyamurthi has projected a case, as if, he has right over the property along with the plaintiffs. The 2nd defendant has further contended that certain portions of the joint family properties have already been given to Thiru.Kaliyamurthi, by his father Thiru.Govindaraj and that he has also executed a will bequeathing certain properties to the 2nd defendant. As the said Thiru.Govindaraj had not given any property, the 1st defendant out of anger, joining hands with the plaintiffs 1 and 2, have claimed right over the property belonging to the 2nd defendant and attempted to encroach upon the same. Therefore, the 2nd defendant and his son have given a complaint to Kuthalam Police Station. He has also submitted that his possession and enjoyment of the property for over 12 years is known to others. While that be so, the contention that on 22.07.2000, he had unlawfully trespassed into the property is not correct. For the abovesaid reasons, he has prayed for dismissal of the suit. 5. On the above pleadings, the trial Court framed three issues for consideration:- 1) Whether the contention that the suit property was in possession and enjoyment of the plaintiff is correct or not? 2) Whether the plaintiffs are entitled to permanent injunction or not? 3) Whether the plaintiffs are entitled to any other relief? 6. The 3rd plaintiff examined himself as PW1. Exs.A1 to A4 have been marked on their side. Defendants 1 and 2 have been examined as DWs 1 and 2 respectively. No documents have been marked on their side. Court exhibits have been marked as Exs.C1 and C2. 7. On evaluation of pleadings and evidence, the trial Court, by its judgment and decree in O.S.No.335 of 2000 dated 13.06.2003, answered the issues in favour of the plaintiffs and accordingly, granted a decree of permanent injunction. No documents have been marked on their side. Court exhibits have been marked as Exs.C1 and C2. 7. On evaluation of pleadings and evidence, the trial Court, by its judgment and decree in O.S.No.335 of 2000 dated 13.06.2003, answered the issues in favour of the plaintiffs and accordingly, granted a decree of permanent injunction. Being aggrieved by the same, the 2nd defendant filed an appeal in A.S.No.178 of 2003, on the file of the learned Additional Subordinate Court, Mayiladuthurai. Upon consideration of the material on record, the appellate Court held that as the right and title over the suit property has been disputed, a mere suit for injunction in the absence of any prayer for declaration, is not maintainable and accordingly dismissed the suit. Aggrieved by the same, the plaintiffs have preferred the second appeal and while admitting the same, this Court has framed the following substantial questions of law:- 1) Whether the lower appellate Court is erred in law in dismissing the suit overlooking settled proposition of law that in an injunction suit Court can go into the prima facie title of parties? 2) When specific linear measurements of property conveyed under a deed is given; will it not overweigh the boundaries mentioned thereon? 3) Whether the lower appellate Court erred in applying principles of interpretation available to statutes and acts of legislatures to a conveyance deed? 4) Whether the lower appellate Court, as a final Court of fact erred in not considering Exs.C1 and C2. 8. In support of the above, Mr.S.Sounthar, learned counsel for the plaintiffs/appellants submitted that the lower appellate Court has failed to consider that when the 2nd defendant in his written statement himself has admitted possession of the plaintiffs and therefore, there is no need to let in evidence to prove the admitted facts regarding title. In this context, he submitted that there is no dispute regarding the division of the properties between the parties and the limited dispute is only with reference to the concrete posts and the fence put up by the plaintiffs to protect their properties. 9. In this context, he submitted that there is no dispute regarding the division of the properties between the parties and the limited dispute is only with reference to the concrete posts and the fence put up by the plaintiffs to protect their properties. 9. Inviting the attention of this Court to Ex.A4 Partition Deed dated 14.11.1954, by which, properties were allotted to the parties therein and the measurements and boundaries stated in the abovesaid document, regarding the property allotted to Thiru.Govindaraj, father of the 2nd defendant, learned counsel for the plaintiffs further submitted that the specific measurement of the property conveyed under Ex.A4 Partition Deed dated 14.11.1954, would prevail over the boundaries and therefore, the lower appellate Court has failed to advert to the recitals in Ex.A4 Partition Deed dated 14.11.1954, in proper perspective. In this regard, he also invited the attention of this Court to the recitals contained in the registered document in Ex.A4 Partition Deed dated 14.11.1954 and further submitted that there is no cloud or ambiguity over the title of the property conveyed under Ex.A4 Partition Deed dated 14.11.1954. 10. He further submitted that when the measurements are clear in Ex.A4 Partition Deed dated 14.11.1954, the defendants are not entitled to claim title or possession of more than the extent of the properties conveyed under Ex.A4 Partition Deed dated 14.11.1954. He also submitted that the defendants have not denied the measurements and hence, there is no cloud in the title. He also submitted that though the intention of the parties to the document in Ex.A4 Partition Deed dated 14.11.1954 is unambiguous and clear and therefore, the lower appellate Court ought to have rejected the defendants' attempt to create a cloud over the title of the suit properties and granted a decree for permanent injunction, without driving the plaintiffs to institute a fresh suit for declaration and consequential injunction, asserting the rights of the plaintiffs over the suit property. 11. Learned counsel for the plaintiffs further submitted that even assuming without argument sake, if there is any dispute over the title, the jurisdiction of the Civil Court is not fettered and incidentally, it can also adjudicate and verify as to the prima facie title of the properties and therefore, there is a failure on the part of the lower appellate Court to properly adjudicate on the above aspect. He also submitted that when the plaintiffs put up a fence in the year 2000, there was no objection or steps taken by the defendants to stop them from putting up the fence and the inaction of the defendants would also support the contention that there was acquiescence on the part of the defendants. 12. Placing reliance on a decision in Rama Gowda v. M.Varadappa Naidu reported in 2004 (1) SCC 769 , Mr.S.Soundar, learned counsel for the plaintiff further submitted that even if a trespasser is in the settled possession of the property belonging to the rightful owner, he can protect his possession, even against the true owner and it is for the rightful owner to take recourse to law and therefore, settled possession cannot be disturbed. According to him, when the plaintiff put up a concrete post with barbed wire, there was no objection from the defendant and therefore, even assuming, without admitting for argument sake, plaintiff's possession ought to have been protected by a decree for injunction and that therefore, the respondent has no right to interfere with the same, except taking recourse to law and therefore, the suit for bare injunction, is maintainable. 13. Distinguishing the decision in Dina Malar v. Tiruchirapalli Municipality reported in 1984 (II) MLJ 306 to the facts of this case, Mr.Muthukumar, learned counsel for the respondent/defendant submitted that in the above reported judgment, the boundaries were given, extent of land conveyed were mentioned and added to that, documentary evidence, Exs.B1 and B2, was let in, on the basis of which, this Court arrived at a conclusion, on the available clear evidence as to the intention of the parties, with reference to the extent covered under the disputed sale deed therein. Whereas, in the case on hand, in the absence of any clear description of the boundaries and other supportive material, that there is a cloud over the property, released under Ex.A4 and in such circumstances, a suit for bare injunction, would not lie, without there being any prayer for declaration. 14. Whereas, in the case on hand, in the absence of any clear description of the boundaries and other supportive material, that there is a cloud over the property, released under Ex.A4 and in such circumstances, a suit for bare injunction, would not lie, without there being any prayer for declaration. 14. Learned counsel for the respondent submitted that the judgment in Dinamalar's case (cited supra), is distinguishable on the facts, wherein, the relief prayed was one of declaration coupled with injunction and only in such circumstances, this Court, on evidence, adjudicate the intention of the parties in conveying the properties and also adjudged, as to whether the declaratory relief prayed for, could be granted or not. According to him, in the case on hand, when there is a cloud with reference to the title, the plaintiff ought to have filed only a suit for declaration, with any consequential prayer. 15. Placing reliance on a decision made in S.Vijayaraghavan v. Noorjahan reported in 2002 (1) MLJ 675 , learned counsel for the respondent/defendant submitted that in the above reported case, a suit instituted was for declaration of title and recovery of possession and when there was a dispute with reference to the extent of property conveyed, this Court held that, "it is an established law that when there is a dispute with regard to measurements, boundaries would prevail. The northern boundary to her property is given as channel poromboke. The Courts below has rightly approached this aspect and held that what the plaintiff claimed as owner is within the stated boundaries and merely because, a particular area had been given in the sale deed, that would not by itself militate against her case that she was entitled to the property within the specified boundaries". 16. Inviting the attention of this Court to a decision made in Alagi Alamelu Achi reported in Ponniah Mudaliar reported in 1962 (1) MLJ 383 = AIR 1962 Mad 149 , learned counsel for the respondents/defendants further submitted that a person in wrongful possession of the property is not entitled to be protected against the lawful owner by an order of injunction. Once the lower appellate Court finds that the plaintiff's possession of the property is wrongful, such possession cannot be protected by the assistance of the Court. Once the lower appellate Court finds that the plaintiff's possession of the property is wrongful, such possession cannot be protected by the assistance of the Court. If the lawful owner was to institute the suit, he might possibly fail on the ground that he was not in possession within twelve years of suit, could make no difference and cannot be a proper justification for the issue of an injunction virtually maintaining or advancing the wrongful act of the plaintiffs. 17. Learned counsel for the respondents/defendants also placed reliance on a decision of the Supreme Court in Anathula Sudhakar v. P.Buchi Reddy reported in 2009 (2) LW 546 and submitted that even assuming that the plaintiff is in possession, but his title to the property is in dispute or under cloud or where the defendant asserts title thereto and that there is also a threat of dispossession from the defendant or anybody, claiming through him, the plaintiff will have to sue only for a declaration of title and the consequential relief of injunction. To sustain the impugned judgment of the lower appellate Court and taking this Court though the averments in the written statement, denying the title of the plaintiff to the suit schedule property, learned counsel for the respondents/defendants submitted that when there was a clear objection to the plaintiff, seeking for the relief of injunction, against the true owner of the property, on the ground that the plaintiffs have no right or title over the suit property, the plaintiff ought to have taken steps to seek for a declaratory relief and a suit for bare injunction is not maintainable in law. 18. Pointing out that the lower Court had not framed any specific issue, regarding the dispute to the title of the parties, learned counsel for the respondents/defendants further submitted that when the dispute regarding the title to the suit property was raised, as defence in the written statement by the defendant, the lower appellate Court has rightly arrived at the conclusion that the same could be decided only in a suit for declaration and thus, rightly reversed the judgment. He further submitted that in a suit for bare injunction, the trial Court cannot assume title, when there is a dispute over the same and grant an injunction. 19. He further submitted that in a suit for bare injunction, the trial Court cannot assume title, when there is a dispute over the same and grant an injunction. 19. Taking this Court through the oral testimony of DW.2 that there was no fence, at the time when he had put up the shed and when the said evidence had not been shattered, nor there was any cross-examination by the plaintiff, learned counsel for the respondents/defendants submitted that there is a categorical evidence that prior to the institution of the suit, ie., in 2000, the plaintiff had hurriedly trespassed into a small strip of land, and put up a barbed fence. 20. According to the learned counsel for the respondents/defendants, the plaintiff is an aggressor in possession. The barbed wire has been put up, just four to five months, prior to the institution of the suit and therefore, he has denied the contention of acquiescence. For the abovesaid reasons, he submitted that when the lower appellate Court has found that there was a dispute touching upon the title of the suit property, the Court has rightly dismissed the suit, holding that the suit for bare injunction would not lie, without there being a prayer for declaration. 21. Heard the learned counsel for the parties and perused the materials available on record. 22. Admittedly, as on today, the plaintiff is in possession of the suit property. Whether the possession was lawful in the capacity, as owner of the property or as that of a trespasser in aggression, is secondary to the substantial question of law raised in this second appeal, as to whether the lower appellate Court has erred in law, in dismissing the suit for bare injunction, wherein a dispute, with regard to title, is raised as defence. In the light of the substantial questions framed by this Court, this Court deems it fit to address the abovesaid issue, with reference to the pleadings and evidence and before that, it is worthwhile to consider the legal position by the Courts. 23. In Dina Malar v. Tiruchirapalli Municipality reported in 1984 (II) MLJ 306 , the area mentioned in the sale deed was 60' x 35' feet, i.e., an area of 2,100 sq. Ft in Survey No.371/2. 23. In Dina Malar v. Tiruchirapalli Municipality reported in 1984 (II) MLJ 306 , the area mentioned in the sale deed was 60' x 35' feet, i.e., an area of 2,100 sq. Ft in Survey No.371/2. It was contended that the said extent of land was a blind-alley, which was not used as a public road and lateron, the Municipal Council, after obtaining the sanction of the State Government, under Ex.B1, dated 24th July, 1972, sold the same to one Thiru.Panneerselvam, under Ex.A1, dated 9th May' 1974, who sold the same, under the original of Ex.A2, in favour of Thiru.Ramasubbu Iyer, representing the appellant therein. The plaintiff therein has contended that description of the property comprised within the four boundaries mentioned in Ex.A1 has passed on to the vendee. Whereas, the Municipal Council as well as the other defendants have contended that only an extent of 60' x 35' in the abovesaid Survey number, was sold to the appellant's predecessor-in-title and therefore, the appellant therein cannot lay any claim to the extent more than 2,100 sq. ft., for which he has paid the value. The trial court, after considering the evidence, both oral and documentary, decreed the suit, holding that the appellant therein was entitled only to the extent mentioned in Exhibits A1 and A2 and that he cannot claim any right to the extent over and above 2,100 sq. ft. The said decision was confirmed in appeal. Before this Court, a contention was raised that when both boundaries and the extent were mentioned in the sale deed, the boundaries will prevail over the extent. In the light of the decisions in Subbayya Chakkilian v. Maniam Muthiah Gouden [45 MLJ 182], Siviseshamuthu v. Gopalakrishnan [ AIR 1963 Mad. ft. The said decision was confirmed in appeal. Before this Court, a contention was raised that when both boundaries and the extent were mentioned in the sale deed, the boundaries will prevail over the extent. In the light of the decisions in Subbayya Chakkilian v. Maniam Muthiah Gouden [45 MLJ 182], Siviseshamuthu v. Gopalakrishnan [ AIR 1963 Mad. 147 ], P.K.A.R.C.O.Society v. Government of Palestine [ AIR 1948 PC 207 ] and Church of SITA v. Raja Ambrose [ (1978) 2 MLJ 620 ], this Court has culled out following principles, (1)in case of doubtful or varying extents in the documents of title relating to the property, boundaries should be preferred to the extent; (2) Only in the absence of definite material to show the actual extent intended to be sold the boundaries should outweigh the doubtful extent mentioned in the document; (3) If the recitals in the documents and the circumstances of the case show that a lesser extent only was conveyed than the area covered by boundaries, and there is clear evidence as to the intention of the parties with reference to the extent conveyed, then the extent should prevail over the boundaries. 24. In the above reported case, in the sale deeds Exhibits A-1 and A-2, four boundaries of the property were given, the measurement of the property was given as 2,100 sq.ft., whereas, the extent covered by the said four boundaries was land, measuring 60' x 40' i.e., 2,400 sq.ft. Therefore, the question posed before this Court was whether the property, comprised within the four boundaries or the property measuring 60' x 35' was sold under Exhibit A-1, as the suit property was a portion of street, vested with the Municipality, for a limited purpose. For the sale of such a property, the Municipality had to obtain the sanction of the State Government and Ex.B1, was the Government Order in G.O.Ms.No.1525, R.D. and L.A. Department, dated 24th July, 1972, sanctioning permission to sell the property. Pursuant to the same, by Exhibit B-2, proceedings were also issued by the Collector, Tiruchi, and from the perusal of the same, it showed that the Government had permitted assignment of land measuring 2,100 sq.ft., in T.S.No.371/2 to one Thiru.S.Panneerselvam. From the above said documentary evidence, it was also clear that what was intended to be sold was only an extent of 60' x 35', i.e., an area of 2,100 sq.ft. From the above said documentary evidence, it was also clear that what was intended to be sold was only an extent of 60' x 35', i.e., an area of 2,100 sq.ft. Rejecting the contention of the appellant therein that in view of the fact that in Exhibit A-l, the extent was mentioned only as 2,100 sq.ft. or thereabouts' the entire extent within the said four boundaries conveyed under Ex.A1, should be deemed to only 2,100 Sq.Ft., and not more than that and on the above facts, this Court held that, "Merely because the words 'or thereabouts', occur in Exhibit A-1 sale deed, it cannot be contended that the parties intended to convey the entire extent covered by the four boundaries in the Sale deed which is 300 sq. ft., in excess of the area covered by measurement." As there was a clear mentioning of the measurements, this Court has also rejected the contention that the boundaries will prevail over the extent. 25. In Alagi Alamelu Achi v. Ponniah Mudaliar reported in 1962 (1) MLJ 383 = AIR 1962 Mad 149 , relied on by the learned counsel for the appellant, this Court considered a case, where the defendant filed a second appeal against the concurrent findings of the Court below that the plaintiff therein was entitled to possession. The reasoning of the lower appellate Court, extracted at Paragraph 1 of the above reported decision is that, "It is true that a person in wrongful possession can maintain his possession against all the world except the real owner can take the law into his own hands and enter upon the property and dispossess the person in wrongful possession there-of by force. The proposition means that the person in wrongful possession of the property has to surrender his possession to the real owner on his taking the necessary steps to recover possession in a manner recognised by law. If courts of law do not afford protection to persons in possession of property though wrongful, and allow the real owners to take the law into their own hand and enter upon the property and push out the person in wrongful possession thereof, serious consequences will follow." 26. If courts of law do not afford protection to persons in possession of property though wrongful, and allow the real owners to take the law into their own hand and enter upon the property and push out the person in wrongful possession thereof, serious consequences will follow." 26. In Alagi Alamelu Achi's case (cited supra), while addressing the correctness of the abovesaid decision of the lower appellate Court, with reference to the contention that whether the lawful owner of the property has to institute a suit, a learned Judge of this Court, way back in 1962, held that, "Once the lower appellate Court found that the plaintiff's possession is wrongful, it immediately followed that such possession is not entitled to protection by an injunction, because such an order will be only assisting the plaintiffs in their wrongful possession." 27. This Court further held that no Court can by its own order, help a party who is found to be in wrongful possession as against the lawful owner. It is further held that the fact that if the lawful owner were to institute a suit, he might possibly fail on the ground that he was not in possession within twelve years of suit, could make no difference and that cannot be a proper justification for the issue of an injunction virtually maintaining or advancing the wrongful act of the plaintiffs. So saying, this Court held that the lower appellate Court went wrong in granting an injunction against the first defendant therein. 28. Reverting back, the abovesaid reported decision has been relied on by the learned counsel for the respondent/defendant to support his contention that the plaintiffs cannot maintain a suit for bare injunction, without any title to the property and merely because, the plaintiffs are in possession, they cannot seek for an injunction, against the lawful owner of the property. 29. In Premji Ratansey Shah v. Union of India reported in 1994 (5) SCC 547 , the unsuccessful plaintiffs in both the Courts, sought for a declaration that they are the successors in title to certain lands and also sought for an injunction, not to interfere with their possession. While testing the correctness of the decision of the High Court, on the material on record, the Apex Court, at Paragraphs 4 and 5, held as follows: "4. While testing the correctness of the decision of the High Court, on the material on record, the Apex Court, at Paragraphs 4 and 5, held as follows: "4. It is seen that in a suit as originally framed, they sought for a declaration that the award made in respect of the land was void, inoperative and does not bind the petitioners. But that relief had been given up. Thereby, the title of the land of the railways have not been questioned. With the award made under Section 30, the vendors of the petitioners got themselves bound by the above award under Section 12 of the Act. It is also seen that the two awards had become final and possession was delivered to the railways by the Land Acquisition Officer on 24-2-1960. Thus Defendants 3 and 4 had no ghost of right, title or interest in the lands acquired from the original owner Maibai. The said sale is a void sale and the petitioners, therefore, cannot derive any interest under the agreement of sale to resist the possession of the lawful owner nor could the declaration sought for be given. The question, therefore, is whether an injunction can be issued against the true owner. Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction. 5. It is equally settled law that injunction would not be issued against tile true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner."(emphasis supplied) 30. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner."(emphasis supplied) 30. In the abovesaid decision, the Supreme Court has categorically affirmed the settled law that injunction cannot be granted against the true owner and even assuming that they are in possession, it was wholly unlawful possession of a trespasser. 31. However, in Rama Gowda v. M.Varadappa Naidu reported in 2004 (1) SCC 769 , the supreme Court, while considering the submissions of the defendant/appellant therein, inter alia, that the suit filed by the plaintiff based on his title itself, was defective, as declaration of title was not sought for, as it was in dispute and that therefore, the injunction sought for in the suit ought not to have been granted and that the suit itself ought to have been dismissed, at Paragraphs 8 and 9, held as follows: "8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of he cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner. 9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram and Ors. Vs. Delhi Administration (1968) 2 SCR 455 , Puran Singh and Ors. Vs. The State of Punjab (1975) 4 SCC 518 and Ram Rattan and Ors. Vs. State of Uttar Pradesh (1977) 1 SCC 188 . The authorities need not be multiplied. In Munshi Ram & Ors.'s case (supra), it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and re-instate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and re-instate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh and Ors.'s case (supra), the Court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. The 'settled possession' must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase 'settled possession' does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The court laid down the following tests which may be adopted as a working rule for determining the attributes of 'settled possession' : i) that the trespasser must be in actual physical possession of the property over a sufficiently long period; ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case; iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and iv) that one of the usual tests to determine the quality of settled possession, in the case of cultivable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession." The Supreme Court, at Paragraph 11, further added as follows: "11. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession." The Supreme Court, at Paragraph 11, further added as follows: "11. In the present case the Court has found the plaintiff as having failed in proving his title. Nevertheless, he has been found to be in settled possession of the property. Even the defendant failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff. The Trial Court therefore left the question of title open and proceeded to determine the suit on the basis of possession, protecting the established possession and restraining the attempted interference therewith. The Trial Court and the High Court have rightly decided the suit. It is still open to the defendant-appellant to file a suit based on his title against the plaintiff-respondent and evict the latter on the former establishing his better right to possess the property." Ultimately, the Supreme Court, in the above reported case, while considering the fact that the High Court had kept the question of title open, ordered that the contesting parties would be at liberty to plead all relevant facts directed towards establishing their title, as respectively claimed and to prove the same, by duly constituted legal proceedings. The apex Court had also made it clear that the impugned judgment therein in the reported case, shall not be taken to have been decided the question of title to the suit property, for or against any of the contesting parties. 32. The abovesaid judgment has been relied on by Mr.S.Soundar, learned counsel for the plaintiffs to support his contention that even assuming without admitting for argument sake that the plaintiff had no title to the suit property and that possession of the plaintiff against the true owner has to be treated as settled, as explained by the Supreme Court, at Paragraph 9 of the said judgement, the dispute as to title, has got to be adjudicated. 33. In Anathula Sudhakar v. P.Buchi Reddy reported in 2009 (2) LW 546, the Supreme Court considered a case, where possession was claimed, on the basis of title, which was disputed. 33. In Anathula Sudhakar v. P.Buchi Reddy reported in 2009 (2) LW 546, the Supreme Court considered a case, where possession was claimed, on the basis of title, which was disputed. Setting out the broad principles as to the scope, when and how the suits relating to title, injunction, possession, declaration, etc., have to be filed, at Paragraphs 11 of the judgment, the Supreme Court has clarified legal position, referring to some instances, which are illustrative, and held as follows: "11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly. 11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. 11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. 12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. 12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title. 13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally. 14. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs. 15. There is some confusion as to in what circumstances the question of title will be directly and substantially in issue, and in what circumstances the question of title will be collaterally and incidentally in issue, in a suit for injunction simpliciter. In Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar Temple vs. Rajanga Asari AIR 1965 Mad. 355 , the Madras High Court considered an appeal arising from a suit for possession and injunction. In Vanagiri Sri Selliamman Ayyanar Uthirasomasundareswarar Temple vs. Rajanga Asari AIR 1965 Mad. 355 , the Madras High Court considered an appeal arising from a suit for possession and injunction. The defendant contended that the plaintiff had filed an earlier suit for injunction which was dismissed, and therefore the plaintiff was precluded from agitating the issue of title in the subsequent suit, being barred by the principle of res judicata. It was held that the earlier suit was only for an injunction (to protect the standing crop on the land) and the averments in the plaint did not give rise to any question necessitating denial of plaintiff's title by the defendant; and as the earlier suit was concerned only with a possessory right and not title, the subsequent suit was not barred. There are several decisions taking a similar view that in a suit for injunction, the question of title does not arise or would arise only incidentally or collaterally, and therefore a subsequent suit for declaration of title would not be barred. On the other hand, in Sulochana Amma v. Narayanan Nair, 1994 (2) SCC 14 , this Court observed that a finding as to title given in an earlier injunction suit, can operate as res judicata in a subsequent suit for declaration of title. This was on the premises that in some suits for injunction where a finding on possession solely depended upon a finding on the issue of title, it could be said that the issue of title directly and substantially arose for consideration; and when the same issue regarding title is put in issue, in a subsequent title suit between the parties, the decision in the earlier suit for injunction may operate as res judicata. This Court observed: “Shri Sukumaran further contended that the remedy of injunction is an equitable relief and in equity, the doctrine of res judicata cannot be extended to a decree of a court of limited pecuniary jurisdiction. We find no force in the contention. It is settled law that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. We find no force in the contention. It is settled law that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as res judicata." This was reiterated in Annaimuthu Thevar v. Alagammal, 2005 (6) SCC 202 . 16. This Court in Sajjadanashin Sayed Md. Vs. Musa Dadabhai Ummer 2000 (3) SCC 350 , noticed the apparent conflict in the views expressed in Vanagiri and Sulochana Amma and clarified that the two decisions did not express different views, but dealt with two different situations, as explained in Corpus Juris Secundum (Vol.50, para 735, p.229): "Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title." In Vanagiri, the finding on possession did not rest on a finding on title and there was no issue regarding title. The case related to an agricultural land and raising of crops and it was obviously possible to establish by evidence who was actually using and cultivating the land and it was not necessary to examine the title to find out who had deemed possession. If a finding on title was not necessary for deciding the question of possession and grant of injunction, or where there was no issue regarding title, any decision on title given incidentally and collaterally will not, operate as res judicata. On the other hand, the observation in Sulochana Amma that the finding on an issue relating to title in an earlier suit for injunction may operate as res judicata, was with reference to a situation where the question of title was directly and substantially in issue in a suit for injunction, that is, where a finding as to title was necessary for grant of an injunction and a specific issue in regard to title had been raised. It is needless to point out that a second suit would be barred, only when the facts relating to title are pleaded, when a issue is raised in regard to title, and parties lead evidence on the issue of title and the court, instead of relegating the parties to an action for declaration of title, decides upon the issue of title and that decision attains finality. This happens only in rare cases. Be that as it may. We are concerned in this case, not with a question relating to res judicata, but a question whether a finding regarding title could be recorded in a suit for injunction simpliciter, in the absence of pleadings and issue relating to title. 17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under: (a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.” 34. Though the learned counsel for the plaintiffs submitted that there is only an attempt to raise a cloud over the suit property, this Court is not inclined to subscribe to the same. On the facts and circumstances of the case, it could be deduced that there is dispute regarding the title and right of the plaintiff to be in possession and enjoyment of the disputed property. That apart, there is also a clear admission on the part of the plaintiffs that the extent of land allotted, by partition, was not measured, though there are boundaries to the same. 35. The contention that in a suit for bare injunction, the Court can independently adjudicate and verify, as to the prima facie title to the suit properties and record a finding, with regard to the same, cannot be countenanced in law, when the title of the plaintiffs, in respect of the suit property, is disputed and that there is also a cloud. Apparently, there is a dispute over the plaintiffs possession over the suit property, conveyed under Ex.A4 Partition Deed dated 14.11.1954. Therefore, as per the decisions of the Apex Court, a prayer for declaration of the plaintiffs' title with a consequential relief of injunction, is necessary for proper adjudication. 36. To address the issue as to whether the possession against the defendants, was a settled possession, as rightly contended by the learned counsel for the defendants, the evidence of the defendants has to be considered and having regard to the tests formulated by the Supreme Court in Rama Gowda's case, this Court is unable to subscribe to the contentions of the plaintiffs that they have satisfied the element of animus possendi. On the material on record, particularly, oral testimony of DW.2, clearly indicate that there was no concrete post with any barbed wire fence, prior to the institution of the suit in the year 2000 and only when the plaintiffs attempted to put up a fence, which according to them, to protect their possession of the property allotted, there was interference. In the light of the unimpeachable evidence of DW.2, who had not been cross-examined on this aspect, that the concrete post with a barbed wire fence, had been put up only just prior to the institution of the suit, this Court is unable to accept the contention of the plaintiffs that there was no dispute over the possession, to the knowledge of the true owner of the property and that therefore, there is a settled possession and consequently, he is entitled to a decree for injunction. In the case on hand, title to the suit property has been disputed. Possession does not satisfy the tests formulated by the Apex Court in Rama Gowda's case. In the light of the limited discussion, relating to the maintainability of the suit, for a bare injunction, without there being any relief for declaration of title to the suit property, this Court is of the view that the suit instituted by the plaintiff in the present form is not maintainable and therefore, there is no manifest illegality in the judgment of the lower appellate Court, warranting interference. 37. Hence, the substantial questions of law are answered negative and that the Second Appeal is dismissed, giving liberty to the plaintiffs to institute a comprehensive suit for declaration and possession, in respect of the suit property. 37. Hence, the substantial questions of law are answered negative and that the Second Appeal is dismissed, giving liberty to the plaintiffs to institute a comprehensive suit for declaration and possession, in respect of the suit property. No costs.