A.N. Paramkusha Bai vs K. Krishna and another

This appeal is directed against the order dated 11-9-1995 in IA No.984 of 1995 in OS No.25] of 1995 on the file of the III Additional Judge, City Civil Court, Hyderabad, wherein the application filed under Order 39, Rules 1 and 2 read with Section 151 of Civil Procedure Code, (for short "CPC"), seeking temporary injunction restraining the respondents-defendants from interfering with peaceful enjoyment of the appellant-plaintiff over the plaint schedule property bearing No. 139/1 (New No.7-3-476), Audaiah Nagar, Secundcrabad or any other part thereof by way of execution of decree dated 7-12-1994 in OS No.369 of 1989, pending disposal of the suit was dismissed.

Brief facts of the case arc as follows:

The appellant herein instituted suit OS No.251 of 1995 u/s 6 of the Specific Relief Act, for declaration that she is the absolute owner of the property and for consequential relief of perpetual injunction on the basis of Ex.A1-registered sale deed dated 9-7-1987. Pending disposal of the suit, the plaintiff filed IA No.984 of 1995 u/s 39, Rules 1 and 2 read with Section 151 of CPC seeking temporary injunction. In support thereof, an affidavit was filed staling that the appellant herein is the absolute owner and possessor of the plaint schedule property by virtue of registered sale deed Ex.Al dated 9-7-1987 executed by the second respondent-municipal corporation and since the date of purchase the appellant is in exclusive possession and enjoyment of the plaint schedule property''.

The respondent No.1 who is the defendant No.l in the suit earlier filed suit OS No.2896 of 1978 for declaration that he is the adopted son of late Baganna and obtained an ex parte decree on 29-7-1982. The respondent No.! filed EP 94 of 1982 and on 6-12-1982 took possession of the plaint schedule property and effected the mutation in Municipal records as tenant. On 18-2-1986 the second respondent herein terminated tenancy of respondent No.l with effect from the end of March, 1986. The said notice, however, was served on the respondent No.l on 3-4-1986. Thereafter, the respondent No.l appears to have paid the arrears of rent and sale price through banker''s cheque. That was acknowledged by the second respondent herein. However, subsequently, it was returned and that despite these, the second respondent attempted to dispossess the first respondent from the suit premises on 9-5-1986, which was resisted by him. Ultimately the first respondent filed suit OS No.369 of 1989 u/s 6 of the Specific Relief Act, challenging the action of the second respondent for illegal dispossession. The said suit on contest was decreed on 7-12-1994, without going into the question of title. The appellant herein preferred AS No.6 of 1995 against the said decree and also filed IA No.110 of 1995 and obtained the stay of operation of the decree in OS No.369 of 1994 dated 7-12-1994. It is stated that during the subsistence of interim direction granted by the appellate Court, on advise that the appeal is not maintainable, he withdraw the appeal and the same was dismissed as withdrawn on 14th July, 1995 and thereafter the appellant-plaintiff instituted the present suit OS No.251 of 1995 u/s 6(4) of the Specific Relief Act seeking relief of declaration that she is the absolute owner of ihe property and for consequential relief of perpetual injunction on the basis of registered sale deed dated 9-7-1987 executed by the second respondent herein in favour of the appellant. Pending disposal of the suit, the appellant herein sought for temporary injunction contending that she got the title in her favour by virtue of Ex.Al, which is a registered sale deed executed by the respondent No.2 in favour of the appellant herein and since the date of registered sale deed she is in peaceful possession and enjoyment of the suit schedule property. In support of her case she marked Exs.Al to A3. Ex.Al is a certified copy of the sale deed dated 9-8-1987, Ex.A2 is a certified copy of the plan attached to Ex.Al and Ex.A3 a copy of the judgment dated 7-12-1994 in OS No.369 of 1989.

The appellant filed CMP No. 13799 of 1999 under Order 41, Rule 27 of CPC seeking permission of the Court to take the documents as additional evidence in the appeal i.e., Exs.A4 to A7. Ex.A4 is a certified copy of the letter dated 9-5-1986 of voluntary delivery of possession written by the first respondent in favour of the 2nd respondent. Ex.A5 is a certified copy of "panchanama" which was drawn on 9-5-1986 in the presence of the witnesses delivering the possession to the 2nd respondent herein. Ex.A6 is the certified copy of the complaint dated 12-5-1986 given by the Municipal Commissioner and Ex.A7 is the certified copy of the registered sale deed document No. 125 of 1987 executed by the Municipal Commissioner in favour of the appellant.

The learned Judge, to decide the controversy in question, framed an issue and after hearing the rival contentions, he found lhat the respondent No.l is the statutory tenant in the suit property and till the tenancy is terminated by valid notice by respondent No.2, he cannot be dispossessed, except in due process of the law and that the decree obtained by him is binding on the second respondent. The learned Judge also observed that no prima facie case is established in favour of the appellant and that balance of convenience also was not in favour of the appellant-petitioner and that if order of injunction is granted it will cause irreparable loss to the respondents herein and the decree obtained by the respondent No.l in OS No.369 of 1989 will become inexecutable. However, it is pertinent to mention that the learned Judge did not consider the scope of Section 6(4) of the Specific Relief Act and also the aspect with regard to the possession while rejecting the petition for interim injunction. Learned Judge merely proceeded on the footing that since a decree has been obtained by the respondent No.l if any injunction is granted it will cause irreparable injury irrespective of Ex.Al and dismissed the IA No.984 of 1995 by order dated 11-9-1995.

Being aggrieved by the said order, the appellant-plaintiff preferred the present appeal.

Smt. C Jayasree Sarathy, learned Counsel for the appellant submitted that the learned Judge was not justified in dismissing the application particularly in view of Section 6(4) of the Specific Relief Act. Section 6 of the Specific Relief Act reads as follows:

"6. Suit by person dispossessed of Immovable property: (1) If any person is dispossessed without his consent of immovcable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof notwithstanding any other title that may be set up in such suit.

(2) No suit under this section shall be brought-

(a) after the expiry of six months from the date of dispossession;

(b) against the Government.

(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof."

She has drawn attention of this Court to a decision reported in P. Venkateswarlu v. A. Venkateswara Rao, 1988 (1) APLJ 39, wherein this Court had an occasion to consider Section 6(4) of the Specific Relief Act, which reads as under:

"Specific Relief Act. 1963, Section 6 sub-section (4) - Person in possession of property is entitled to seek temporary injunction pending suit for title irrespective of a decree obtained by the opposite party u/s 6(4)."

''The relief under the Specific Relief Act is a summary relief under which a decree is obtained and aggrieved against that relief the other party is enabled to avail the right of tiling a suit which is a regular suit and pending the same any interim relief could be sought for. Subsection (4) of Section 6 of the Specific Relief Act is only enabling provision to file a suit and recover possession. It cannot by any implication whatsoever be construed as to create a bar from seeking temporary injunction. The person who has been in possession of the property is certainly entitled to seek the relief of temporary injunction pending the regular suit filed for title though lie has suffered a decree under Specific Relief Act instituted by the opposite party.''"

Learned Counsel contended that the learned Judge without considering the above position in proper perspective lias erroneously dismissed the application for interim injunction. She also relied upon a decision in Chunni and Another Vs. Sullahar and Another, , wherein, while considering the scope of Section 6(4) of the Specific Relief Act, the Allahabad High Court has an occasion to examine the expression "and to recover the possession thereof and considering the provisions of Specific Relief Act the Court has observed as follows:

"These provisions contemplate the institution of a title suit in spite of the decision of a suit u/s 6. Since the decree u/s 6 grants possession to the dispossessed plaintiff sub-section (4) thereof specifically makes it clear that such a decree cannot bar a frcsli suit for recovery of possession. The phrase ''and to recover possession thereof occurring in Section 6 does not, in our opinion, preclude or bar a suit for title which a consequential relief other than the relief for recovery of possession may be taken. It will depend upon the factual position. In a case where the plaintiff is dissatisfied with a decree u/s 6 he can immediately institute a suit for a declaration of his title. He can claim the available consequential relief. If on the date of the suit the plaintiff finds himself in possession of the property, he cannot legitimately ask for recovery of possession. All that he can pray for is that the status quo be maintained and an injunction be issued restraining the defendant from dispossessing him. This consequential relief naturally follows from his claim on title coupled with the reality and the situation. There is nothing in Sections 5 and 6 of the Specific Relief Act to debar the plaintiff from claiming an appropriate consequential relief."....

.....

"The question whether on facts the plaintiff was entitled to an interim injunction of the kind prayed for is entirely a different matter. The Court will have to apply its mind whether the plaintiff has a prima facie case and whether the balance of convenience is in his favour. In that connection the fact that a Court has granted a decree directing the other side to be put back in possession is a relevant circumstance. The Courts below have, however, not applied their minds to the facts of the case."....

She also drew my attention to the decision of the Apex Court reported in Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and Others, , to the effect that the suit filed u/s 6 of the Specific Relief Act is narrow and limited and question of title is irrelevant. She further relied upon a judgment reported in Mohd. Hussain Suleman Sk. v. Batukbhai, 1984 Guj. 66, wherein it was held as under:

"Specific Relief Act (47 of 1963), Section 6-Decree passed against plaintiff-Plaintiff can institute suit for title and claim consequential relief of injunction."....

"In a case where the plaintiff is dissatisfied with a decree u/s 6 he can immediately institute a suit for declaration for the title and can claim the available consequential relief. That is, if he is in possession of the suit property, all that he can pray for is that status quo be maintained and an injunction be issued restraining the defendant from dispossessing him. However, while granting interim injunction the Court is required lo consider all the relevant facts i.e., prima facie case, balance of convenience and irreparable injury to either party, Chunni and Another Vs. Sullahar and Another, Rel. on."

In Gouranga Chandra v. Salish Chandra AIR 1955 Tri 13 considering the judgments in AIR 1922 Bom. 216 and in Chhadek Karikar Vs. Sayad Ali Kaviraj and Others, the Tripura High Court held that:

"It is settled law that a person against whom an order u/s 9, Specific Relief Act is made may sue for a declaration of title and for restraining with his possession. The judgment in a case u/s 9, Specific Relief Act does not come u/s 41 nor u/s 42, Evidence Act and it is relevant only u/s 13 and Sections 40 and 43 as evidence of transaction or instance where the right to possession was claimed or disputed and also as evidence to show that there was such a judgment or decree or in order either to found a further claim or to determine whether cognizance should or should not be taken of a suit, or whether a trial should or could not be held. The use to which the decree may be made in subsequent suit is only to show that a right to possession was asserted and it was denied, and a suit was instituted and it failed. The Legislature did not intend to give the proceedings u/s 9 the character of finality which is essential to invest the decision with character which will make it operative as res judicata"

Sri K. Narasimha Chary, learned Counsel for the respondent No.l, on the other hand vehemently contended that the learned Judge rightly dismissed the application by holding that the respondent No.l herein is the statutory tenant, by considering the conduct of the parties in question and also the effect of the decree passed in OS No.369 of 1989 pursuant to the earlier decree obtained by him in OS No.2869 of 1992. Learned Counsel staled that the respondent No.l took possession of the suit premises on 6-12-1982 and thereafter his name was mutated in the municipal records and he sent two banker''s cheques and it was returned by the municipal authorities. He further stated that the respondent No.2-Municipal Corporation has forcibly took the possession, which led to the institution of the suit OS No.369 of 1989 and contended that dispossession effected forcibly by the second respondent was considered in that suit wherein he obtained a decree and that the learned Judge rightly rejected ihe injunction and therefore no interference is warranted by this Court. In support of his contention learned Counsel for the respondent No.l drew my attention to the decision in Yeshwant Singh v. Jagdish Singh AIR 1968 SC 620 wherein by following the decision of the Privy Council the Apex Court has held as follows:

"Some stress was laid on the words ''in case of proof of trespass'' in Section 326 by the learned Counsel for the respondent. According to him, a landlord does not commit trespass when he forcibly enters on land in the possession of a tenant whose tenancy has expired. In our view, in the context, ihe word "trespass" here would include forcibly entry and dispossession by the landlord.

Reference was made to a number of English authorities in this behalf but it is not necessary to deal with them because the law in India on this subject is different. u/s 9 of the Specific Relief Act it is well settled (hat question of title is irrelevant in a suit under that section. As the structure of Section 326 of Qanoon Mal read with Section 163 of Qanoon Ryotwari, is similar 10 Section 9 of the Specific Relief Act, there is no reason why Section 326 should be interpreted differently.

In Midnapur Zamindary Co. Ltd. v. Naresh Narayana Roy, 51 Ind App 293-at p.299 : AIR 1924 PC 144 at p.147, the Privy Council observed:

''In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court''."

He also relied upon a decision reported in K.K. Verma and Another Vs. Union of India and Another, , the relevant portion of the order reads as follows:

"Under the Indian law the possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy his possession is juridical and that possession is protected by statute. u/s 9 of the Specific Relief Act, a tenant who has ceased to be a tenant may sue for possession against his landlord if the landlord deprives him of possession otherwise than in due course of law, but a trespasser who has been thrown out of possession cannot go to Court u/s 9 and claim possession against the (rue owner. Therefore, the law makes a clear and sharp distinction between a trespasser and an erstwhile tenant. Whereas the trespasser''s possession is never juridical and never protected by law, the possession of an erst while tenant is juridical and is protected by law. Therefore, as far as the Indian law is concerned, an erstwhile tenant can never become a trespasser. It may or may not be that in English law in certain circumstances he can become a trespasser and it does seem that the landlord can enter the premises and deprive the erstwhile tenant of his possession, but in India a landlord can only eject his erstwhile tenant by recourse to law and by obtaining a decree for ejectment."

Learned Counsel also relied upon decisions reported in Yar Muhammad and Another Vs. Lakshmi Das and Others, , Peddinti Gopalacharyulu Vs. Rudraveeranna and Others, , Datla China Appalanarasimha Raju Vs. Nadimpalli Seethayamma Garu and Others, and Bhuma Venkata Seshayya Vs. Bhuma Venkata Satyanarayana and Others, .

In Yarmohammed''s case (supra), it was held as under:

"..... No question of title either of the plaintiff or of the defendant can be raised or gone into in that case. The plaintiff will be entitled to succeed without proving any title on which he can fall back upon and the defendant cannot succeed even though he may be in a position to establish the best of all titles. The restoration of possession in such a suit is however always subject to a regular title suit and the person who has the real title or even the better title cannot therefore be prejudiced in any way by a decree in such a suit. It will always be open to him to establish his title in a regular suit and to recover back possession."

In Gopalacharyula''s case (supra), the Division Bench of this Court has observed as follows:

"Specific Relief Act, (1877), Section 42 - Suit for declaration of right to remain in possession - Defendant if can be restrained from taking proceedings to recover possession - CPC, Order 39, Rules 1 and 2."...

.....

"A suit by the archaka of a temple for a declaration that he has a right to remain in possession of the suit lands as long as he performs archakathvam service and that he cannot during that time be evicted from those lands cannot by any stretch of language be considered to be one for restraining the defendant from committing injury of any kind. It would be inappropriate to describe the suit as one for restraining the defendants in any manner whatsoever. In such a suit therefore no injunction would be granted to the plaintiff to restrain the defendants from taking proceedings to recover possession of the lands in dispute."

In Appalanarasimha''s case (supra), this Court has held as follows:

"For the above reasons, we hold that Order 39, Rule l(c) comprehends only the acts of a party which are wrongful and not the legitimate acts of persons who pursue the remedies allowed to them by law, and the decision in 1957 ALT 90 : AIR 1957 AP 453 has rightly interpreted the scope of that clause. It is not possible to give an exhaustive enumeration of the cases which can be brought within the ambit of clause (c) but illustrative of such cases is the one covered by Peddinti Gopalacharyulu Vs. Rudraveeranna and Others, . We answer the reference accordingly."

In Seshayya''s case (supra) it was observed as follows:

"Civil PC (1908), Order 39, Rule 1 -Decree against father while family is joint - Subsequent disruption of joint status by institution of suit for partition -Execution of decree against sons shares cannot be restrained on account of the disruption."

Having examined the rival contentions of the learned Counsel, the decisions relied upon by both the parties, and having perused the impugned order, in my view, the learned Judge did not consider-the matter in right perspective particularly the purport of suit, which was instituted u/s 6(4) of the Specific Relief Act and the law kid down in P. Venkateswarlu''s case (supra) and in Chiami''s case (supra). In Chunni''s case (supra), it was held that the phrase "and to recover possession thereof occurring in Section 6 does not preclude or bar a suit for title which a consequential relief other than recovery of possession is claimed. In that case, it was specifically stated that where the plaintiff is dissatisfied with a decree u/s 6 he can immediately institute a suit for declaration of his title and that the petitioner-plaintiff can also seek for injunction restraining the defendant from dispossession. In P. Venkateswarlu''s case (supra), this Court also held that the person in possession of property is entitled to seek temporary injunction pending suit for title irrespective of a decree obtained by the opposite party under Specific Relief Act. In the present case, the appellant/plaintiff averred in the plaint that she is in possession from the date of purchase, under Ex.Al, from the second respondent-Municipal Corporation and that there is no dispute with regard to the possession of the appellant as on the date of the application which was filed under Order 39, Rule 1 and 2 CPC. The learned Judge did not consider the scope of Section 6(4) of the Specific Relief Act and also the aspect with regard to the possession and erroneously held that if any order of injunction is granted it will cause irreparable injury to the respondent No.1 herein because he obtained decree u/s 6 of the Specific Relief Act. The approach of the Court below is not proper and is not in accordance with law. The appellant herein has also filed a certified copy of the "panchanama" dated 9-5-1986 and also letter written by the respondent No. 1 herein delivering the vacant possession of the suit schedule property in favour of the respondent No.2. In the facts and circumstances of the case and considering the above material available on record, which was filed along with this CMA in CMP No.13799 of 1995 under Order 41 Rule 27 of CPC, I am satisfied that the appellant-petitioner has fulfilled the criteria as laid down under Order 39, Rules I and 2 CPC. Thus, the appellant-petitioner having prima facie and balance of convenience in his favour is entitled for the order of injunction.

In the circumstances, the impugned order passed by the learned Judge is hereby set aside and appeal is allowed. Consequently, application IA No.984 of 1995 is allowed granting interim injunction as prayed for. However, the trial Court is directed to dispose of the suit expeditiously, preferably by the end of March 2000, uninfluenced by any of the observations made in this order.

With the above directions, the appeal is allowed. In the circumstances, no order as to costs.