Bakshish Singh vs Barinderjit Singh and Others

Vinod K. Sharma, J.—This Regular Second Appeal has been filed against the judgments and decrees by the learned Courts below vide which the suit filed by the plaintiff-appellant was ordered to be dismissed.

The plaintiff-appellant filed a suit for declaration claiming that he is owner in possession of house of 8 marlas comprised in Khasra No. 49/11, Khata-Khatauni No. 1427/1887 as per Jamabandi for the year 1989-90. As a consequential relief, permanent injunction was prayed for restraining the defendants from forcibly and illegally dispossessing the plaintiff from the said house.

The learned trial Court, on appreciation of evidence, came to the conclusion that defendants were the owners of the property in dispute. The trial Court also recorded a finding that the plaintiff-appellant in cross-examination admitted that the defendants never threatened to dispossess the plaintiff from the suit property forcibly. It was observed that the relief of injunction claimed by the plaintiff is a consequential relief only. Thus, the suit was dismissed.

The appeal against the judgment and decree passed by the learned trial Court was also dismissed by the learned lower Appellate Court.

Mr. M.L. Saggar, senior counsel, appearing on behalf of the plaintiff-appellant, did not challenge the finding of the learned lower Courts below in declining his prayer for declaration of plaintiff being owner of the property. However, the contention of the learned Counsel for the appellant was that as the possession of the plaintiff appellant over the suit property was not disputed, the Courts below should have restrained the respondents from dispossessing the plaintiff except in due course of law.

Mr. B.R. Mahajan, learned Counsel, appearing on behalf of the respondents, however, contested the claim raised by Mr. M.L. Saggar, learned senior counsel appearing on behalf of the appellant, by placing reliance on the Division Bench judgment of this Court in the case of Sohan Singh and Anr. v. Jhaman (deceased) now represented by his LRs. 1986 P.L.J. 168, wherein this Court was pleased to lay down as under:

Taking the case of the who comes to the Court for the grant of the declaration of ownership on the basis of his title to the property (other than the possessory one) and he fails to prove the same at the trial, then, his suit is ordinarily liable to be dismissed for injunction also, being the consequential relief, because he has come to the Court with the specific plea of his title which he had failed to prove at the trial. But in a given case if it was further found that the defendant too had no better title than the plaintiff in the suit property and the former was interfering with the rights of the latter illegally, in that situation, the plaintiff will been titled to the relief of permanent injunction on me basis of his possession alone. In M. Kallappa Setty Vs. M.V. Lakshminarayana Rao, , both the parties failed to prove their ownership over the suit property though the plaintiff had succeeded in proving his possession thereof. In that situation, it was observed by the Supreme Court in paragraph 5 of the judgment that the plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property. Once it is accepted, then his possession has to be protected as against interference by someone who is not proved to have a better title than himself to the suit property. It was on that basis that the plaintiff''s suit in respect of the second relief, i.e. for the grant of permanent injunction restraining defendant from unlawfully and forcibly entering upon the suit land was decreed whereas his suit for the first relief i.e. for the declaration he was the absolute owner of the suit property being in its possession, was dismissed by the Supreme Court.

In these circumstances the answer to the question would be that in case the plaintiff seeks the relief of permanent injunction against the defendant who is held to be the true owner, the same could be granted only if it could be proved by the plaintiff that there was some overt act or threat of any kind or commission of an act contrary to the plaintiffs rights on the part of the defendant to illegally or forcibly dispossess him. In the absence of any such plea and its proof at the trial and a finding thereto, no such relief would be granted to the plaintiff. It is also made clear that in case the plaintiff comes to the Court on the basis of his title to the, suit property (other than his possession thereto) and fails to prove the same at the trial, then the relief of permanent injunction on the basis of his possession alone will have to be ordinarily refused unless there was a further specific finding by the court that he was being forcibly dispossessed by the defendant.

Now adverting to the facts of the present appeal, it may be recapitulated that the plaintiff came to the Court for the grant of the declaration to the effect that he was the owner in possession of the naura in dispute. He failed to prove his ownership thereto in both the Courts below. As regards his possession, only on a small part of the suit property he was found to be in possession. There was neither any issue nor any finding that the defendants invaded or threatened to invade the plaintiffs rights and, thus, tried to dispossess him forcibly. In the absence of any such finding the plaintiff was not entitled to the relief of permanent injunction; particularly when he failed to get the relief of declaration. The approach of the lower appellate Court in this behalf was wrong and illegal.

Thus, it would be seen in the present case that there was a clear admission by the plaintiff-appellant that the defendants have not threatened to forcibly dispossess the plaintiff. Thus, in view of the Division Bench of this Court, learned Courts below were justified in declining the relief of injunction also.

Learned senior counsel for the appellant also contended that the Courts below have failed to notice that the defendant-respondent by their conduct were estopped to seek possession as they were hot entitled to the same. In support of this contention, be placed reliance on the judgment of this Court in the case of Food Corporation of India and Ors. v. Dayal Singh 1991 (2) Rev.L.R. 10 : 1991 P.L.J. 425, wherein this Court was pleased to hold as under:

It has been found by the appellate Court that no valid title passed to the Food Corporation of India, in pursuance of the offer made by the Rehabilitation Department, as the money was to be deposited on a particular date, which was not done and, therefore, the offer made by the Rehabilitation Department, stood cancelled. It has further been found that no proper negotiation was there between the Food Corporation of India and the plaintiff Dayal Singh pertaining to the land in dispute. On the point of adverse possession, the appellate Court has recorded a firm finding that all the ingredients constituting adverse possession were not specifically, pleaded by the defendant-appellants and, therefore, the mere fact the plaintiff-respondent did not take any step before the filing of the suit in the year 1985, does not mean that the possession of the Food Corporation of India, ripened into ownership by way of adverse possession. The plaintiff stands recorded as owner in the Jamabandi of the year 1980-81, and on the basis the trial Court found the plaintiff to be the owner of the disputed property. This finding of ownership was not challenged before the first appellate Court by the appellants.

The ratio in R.S. Muthuswami Gounder''s case (supra), applied with full force'' to the facts of the present case, in view of the finding recorded by the Additional District Judge, which is based upon evidence produced in the present case. A judicial notice was taken by the Additional District Judge that village Dalla, where the plaintiff resided was at a distance of about 1 km. from Urmar Tanda. It was not the case of theplaintiff that he had resided at a distance place for a long period from the place of construction and, therefore, in the ordinary course, he should have known about the construction of godowns, to which no objection was raised. There is nothing wrong with the view of the appellate Court that such a person to whom the principles of acquiescence apply is not entitled to a decree for possession, but only for a decree of recovery of money. The appellate Court ultimately remanded the case to the trial Court, for ascertaining the market value of the suit land. The finding recorded by the appellate Court, in my view, is unexceptional and deserves to be endorsed. I was told, at the time of hearing, that after the case was remanded, the trial Court has granted a decree. Be that as it may, if any of the parties is aggrieved from such a decree, the matter can be agitated in appeal. The counsel for the State has submitted before me that the Rehabilitation Department, has been paid the price of the land. It has been found by both the Courts below that the offer made by the Rehabilitation Department, stood cancelled. In any case, if payment has been accepted, it is between the Food Corporation of India and the Rehabilitation Department to sort out their rights. As regards the plaintiff-respondent, his land having been built upon, by raising godowns, he is certainly entitled to a decree for compensation at market value, as has been done by the appellate Court.

However, this plea of the learned senior counsel for the appellant is totally misconceived as in the present case, there was no plea of estoppel nor any evidence has been recorded by the learned Courts below as was held in the case of Food Corporation of India (supra). The judgment relied upon by the learned senior counsel for the appellant, thus, has no application to the facts of the present case

Learned senior Counsel for the appellant also placed reliance on the judgment of the Hon''ble Supreme Court in the case of Walter Louis Franklin (dead) through LRs. v. George Singh (dead) through LRs. 1997 (2) R.C.R. (Civil) 41 to contend that a person in possession of immovable property is entitled to injunction even against the true owner. It is also his case that even true owner is entitled to possession only by dispossessing such person in accordance with law by filing a suit for possession.

Learned senior Counsel also placed reliance on the judgment of the Hon''ble Supreme Court in the case of Prataprai N. Kothari Vs. John Braganza, to contend that long and continuous possession can be protected against any person except true owner.

Learned Counsel for the respondents besides relying on the judgment of the Division Bench of this Court in Sohan Singh''s case (supra), also placed reliance on the judgments of this Court in the case of Lekh Ram v. Jhandu (1988) 93 P.L.R. 699 : Dewaki and Ors. v. Dayawanti and Ors. 2006 (2) R.C.R. (Rent) 19 (P & H) and Bhim Singh and Others Vs. Zile Singh and Others, , wherein this Court was pleased to lay down as under:

The learned First Appellate Court has itself observed that the plaintiffs were not entitled to seek any protection of the possession against true owners. Besides aforesaid fact, it may be noticed that the plaintiffs had filed the suit seeking declaration of their title as owners. Once they had failed in the declaration and the suit filed by them is held as not maintainable, then no relief can be granted in their favour.

The judgments of the Hon''ble Supreme Court in the case of Walter Louis Franklin (supra) and Prataprai N. Kothari (supra), can also be of no help to the learned senior Counsel for the appellant as in the case in hand, a concurrent finding of fact has been recorded that the plaintiff-appellant has failed to prove his ownership over the property in dispute and the defendants have proved on record that they were owner of the disputed property. It was also proved on record that there was no threat of forcible dispossession of the plaintiff-appellant. The findings recorded by the learned Courts below, therefore, are in consonance with the settled law of the Division Bench of this Court in the case of I Sohan Singh and others (supra). The appeal, thus, raises no substantial question of law for adjudication by this Court in the regular second appeal.

No merit.

Dismissed.