JUDGMENT 1. - The first appeal filed under Section 96 of CPC by the appellants defendants arises out of the judgment and decree dated 18.07.1995 passed by the Additional District Judge No.3, Jaipur City, Jaipur (hereinafter referred to as 'trial Court') in Civil Suit No. 24/1995 whereby, the trial Court has decreed the suit of the plaintiffs-respondents seeking possession and mandatory injunctions in respect of the suit property. 2. The short facts giving rise to the present appeal are that the respondents-plaintiffs had filed the suit seeking possession of the suit property as well as for the mandatory injunction alleging inter-alia that the suit plot situated at Madhav Nagar Colony, opposite Durgapura, Railway Station was purchased by the plaintiffs from the defendant No.4 Madhav Nagar Grih Nirman Sahkari Samiti Limited, Jaipur and that the appellants-defendants taking undue advantage of the absence of the respondents- plaintiffs had encroached upon the said land and put up illegal construction thereon. According to the respondents-plaintiffs, they had also given notice to the appellants-defendants for handing over the possession of the said plot, however, the appellants did not hand-over the possession and hence, the suit was filed. The said suit was resisted by the appellants-defendant Nos. 1 and 2 by filing written statement denying the allegations made in the plaint and further contending inter alia that the suit plot was allotted to the said defendants by Tagore Nagar Girh Nirman Sahkari Samiti Limited on 20.07.1986 and that the said society had also handed over the possession of the said plot, on which the said defendants had put up the construction. It was also contended that the dispute raised by the respondents-plaintiffs being covered under Sections 75 and 137 of Rajasthan Cooperative Societies Act, the civil court had no jurisdiction to entertain the suit. The defendant-respondent No. 4 Madav Nagar Grih Nirman Sahkari Samiti Limited, Jaipur had also filed the written statement contending inter alia that the suit plot was allotted by the said society to the plaintiffs and the possession thereof was also handed over to the plaintiffs : 3. The defendant-respondent No. 4 Madav Nagar Grih Nirman Sahkari Samiti Limited, Jaipur had also filed the written statement contending inter alia that the suit plot was allotted by the said society to the plaintiffs and the possession thereof was also handed over to the plaintiffs : 3. The trial Court from the pleadings of the parties had framed the following issues:- " 1- vk;k okni= ds [k.M la[;k&1 esa of.kZr Hkw[k.M ek/ko x'g fuekZ.k lgdkjh lfefr dk Fkk tks oknh dks fnukad 30-10-74 dks vkoafVr fd;k x;k gSA 2- vk;k oknh us mijksDr Hkw[k.M ds d'f"k :ikUrj.k 'kqYd o mi foHkktu 'kqYd tek djk;s gSa] ;fn gkWa rks nkos ij izHkkoA 3- vk;k izfroknh la[;k&1 o 2 us oknxzLr Hkw[k.M ij vukf/kd'r dCtk dj fy;k gS vkSj oknh izfroknh dks csn[ky djk ikus ds vf/kdkjh gSA 4- vk;k oknh LFkk;h fu"ks/kkKk dks lgk;rk ikus ds vf/kdkjh gSa ;fn gkWa rks fdl dnjA 5- vk;k oknh 200@& :0 ekgokj dh nj ls oklykr ikus ds vf/kdkjh gSaA 6- vk;k U;k;ky; dks nkok lquus dk vf/kdkj ugha gSaA 7- lgk;rkA " 4. The trial Court considering evidence on record and the submissions made by the learned counsels for the parties, decreed the suit of the respondents-plaintiffs directing the appellants-defendants No. 1 and 2 to remove the construction put up by them on the plot and hand over the possession of the suit plot to the plaintiffs, vide the judgment and decree dated 18.7.1995. Being aggrieved by the same, the appellants-defendants have preferred the present appeal. 5. It has been sought to be submitted by the learned counsel Mr. S.G. Gupta for the appellants that suit of the respondents-plaintiffs for possession and mandatory injunction without seeking declaration in respect of the suit property was not maintainable in the eve of law. He further submitted that there was variance in the pleadings and evidence led by the plaintiffs so far as handing over of the possession of the suit property was concerned. He also submitted that the appellants were allotted the suit plot by Tagore Nagar Girh Nirman Sahkari Samiti Limited as per the allotment letter and the respondents-plaintiffs had no right over the suit plot. According to Mr. S.C. Gupta, the learned counsel for the appellants, the trial Court has misinterpreted the evidence on record and decreed the suit recording perverse findings against the appellants. 6. Mr. According to Mr. S.C. Gupta, the learned counsel for the appellants, the trial Court has misinterpreted the evidence on record and decreed the suit recording perverse findings against the appellants. 6. Mr. Ashok Mishra, learned counsel appearing for the respondent Nos. 1 and 2 however, supported the judgment and decree passed by the trial Court and urged to dismiss the appeal. None is present for the respondent Nos. 3 and 4. 7. In the instant case, the moot point for the determination is as to whether the suit filed by the respondent Nos. 1 and 2 seeking possession and mandatory injunction without seeking declaration of title in respect of the suit plot was maintainable in the eye of law, more particularly when the title of the respondents-plaintiffs in respect of the suit plot was not clear? 8. Having regard to the evidence on record, it appears that the respondents-plaintiffs had examined Chand Bihari as PW-1. He had stated interalia that the suit plot was allotted by respondent No.4 Madhav Nagar Grih Nirman Sahkari Samiti Limited, Jaipur to his wife Smt. Krishna Devi as per original Patta Ex.1 and Map Ex.2. According to him the said society had also handed over the possession of the suit plot to him however, since he was staying at Sawai Madhopur, the appellants-defendants had illegally encroached upon the said plot and put up illegal construction. He had also stated that he had made a complaint to the JDA in this regard. In the cross-examination he had stated that he had not put up any construction on the suit plot after getting possession thereof from the Society, as the suit plot was an agriculture land. He had denied that the suit plot was bearing the number 139 and the same was allotted by Tagore Nagar Girh Nirman Sahkari Samiti Limited to the defendant No.2 Rama Devi. The plaintiffs had also examined one Mr. Raghunandan as PW-2 who had inter alia stated that he had gone with Chand Bihari for taking possession of the said plot. One Lok Chand was also examined by the respondents-plaintiffs as PW-3 to substantiate that the suit plot was vacant when the plaintiffs had purchased the same. The plaintiffs had also examined one Mr. Raghunandan as PW-2 who had inter alia stated that he had gone with Chand Bihari for taking possession of the said plot. One Lok Chand was also examined by the respondents-plaintiffs as PW-3 to substantiate that the suit plot was vacant when the plaintiffs had purchased the same. PW-4 Shri G.L. Badgotri and PW-5 Hajari Lai Gupta were also examined by the plaintiffs in their support to show that suit plot was allotted to plaintiffs by Madhav Nagar Grih Nirman Sahkari Samiti Ltd., Jaipur. 9. The appellants-defendants had examined the appellant No.1 Banwari Lai as DW-1 who had stated inter alia that the plot in question was the plot bearing number 139 and it was allotted by Tagore Nagar Girh Nirman Sahkari Samiti Limited to his wife Smt. Rama Devi on 20.07.1981, and thereafter he had put up the boundary wall and also put up small construction thereon. He had stated in his cross-examination that he had not paid the requisite charges for conversion of land from agriculture to non-agriculture use. He had admitted that he had received the notice given by the plaintiffs. 10. So far as documentary evidence is concerned, the respondents-plaintiffs had produced the allotment letter dated 18th July, 1995 (Ex.A/1) and the Map (Ex.A/2). The plaintiffs had also produced the receipts by which the amount towards conversion charges was deposited by them with the Government. The appellants-defendants to show their possession had produced the allotment letter of Tagore Nagar Girh Nirman Sahkari Samiti Limited (Ex.A/1) and the map (Ex.A/2). 11. From the said oral and documentary evidence produced by the parties it clearly transpires that the respondents- plaintiffs had relied upon the allotment letter (Ex.1) issued by the respondent No.4 Society in favour of the respondent No.2 Smt. Krishna Devi, whereas the appellants- defendants had relied upon the allotment letter issued by Tagore Nagar Girh Nirman Sahkari Samiti Limited (Ex.A/1) in favour of the appellants No.2 Smt. Rama Devi. It also appears that the suit plot was described as plot No.2 by the respondents-plaintiffs allegedly allotted by the respondent No.4 Society, whereas it was described as Plot No. 139 by the appellants-defendants allegedly allotted by the Tagore Nagar Girh Nirman Sahkari Samiti. It also appears that the suit plot was described as plot No.2 by the respondents-plaintiffs allegedly allotted by the respondent No.4 Society, whereas it was described as Plot No. 139 by the appellants-defendants allegedly allotted by the Tagore Nagar Girh Nirman Sahkari Samiti. There is nothing on record to suggest that either of these two societies i.e. the respondent No.4 madhav Nagar Grih Nirman Sahkari Samiti Limited, Jaipur of Tagore Nagar Girh Nirman Sahkari Samiti Limited had any ownership rights over the plot in question. There was also dispute as regards the area and location of the suit plot. Admittedly, the suit plot was part of an agriculture land. Under the circumstances, when the title of the suit plot was not clear and when the ownership rights of the respondents-plaintiffs were also not established, the suit of the respondents-plaintiffs for possession and injunction without seeking declaration with regard to the title of the suit plot was not maintainable in the eye of law. 12. At this Juncture, a very pertinent principles laid down by the Apex Court in Anathula Sudhakar v. P. Budhi Reddy (Dead) By Lrs. & Ors. (2008) 4 SCC 594 are required to be reproduced. The relevant para 21 reads as under:- "21. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under : (a) Where a cloud as 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 consideration, as without a finding thereon it will not be possible to decide the issue of 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 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, 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 refer to plaintiff to a more comprehensive declaratory suit depending upon the facts of the case." (Emphasis supplied) 13. If the afore stated legal position is applied to the facts of the present o case, it clearly emerges that there was no clarity as regards the title of the respondents-plaintiffs in respect of the suit plot. There was no evidence to show the clear title of the respondent No.4 Society and hence, the said Society could not have transferred better title than what it had. There was no evidence to show the clear title of the respondent No.4 Society and hence, the said Society could not have transferred better title than what it had. Hence, there being a cloud created over the title of the respondents-plaintiffs their suit for 15 possession and mandatory injunction would not be maintainable in the eye of law. In the opinion of the Court, the trial Court has committed an error in decreeing the suit of the respondents-plaintiffs, though the plaintiffs had failed to prove their ownership rights over the suit plot. At this juncture, Court does not express any opinion over the ownership rights or any other right of the 50 appellants-defendants over the suit plot. Suffice is to say that respondents-plaintiffs had to prove their case by leading cogent evidence as regards the title over the suit plot, for getting the possession thereof which the plaintiffs had failed to prove in the instant case. 14. In view of the above, it is held that the trial Court had committed an error of law in decreeing the suit of the respondents-plaintiffs and, therefore, the judgment and decree passed by the trial Court deserves to be set aside and are accordingly set aside. The suit of the respondents-plaintiffs is dismissed. 15. The first appeal stands allowed accordingly.Petition allowed. *******