Balineni Sivoni Devi vs Boddula Kommaiah and Another

Syed Shah Mohammed Quadri, J.—The 2nd defendant in O.S. 116 of 1982 on the file of Subordinate Judge, Kothagudem is the appellant. The first respondent herein, the plaintiff filed the sit for permanent injunction restraining the defendants from interfering with the possession of the plaint schedule land situated at Kothagudem village. The plaintiff sold the said land to the third defendant under Ex. B. 1 dated 11.12.1967. His case is that notwithstanding the sale in favour of the third defendant he wanted the plaintiff to continue in possession by cultivating the land. The third defendant sold the said land to the 2nd defendant under Ex. B-4 on 30.1.1980. The 1st defendant is the father of the 2nd defendant. Alleging that defendants 1 to 3 started interfering his possession of the land, the suit was laid for permanent injunction.

The 2nd defendant filed written statement stating,/were alia that he has been in possession of the land from the date of the agreement for sale entered into by him with the 3rd defendant on 1.1.1979; the sale-deed in her favour was executed on 30.1.1980. She denied that the plaintiff was in possession of the suit land after the execution of the sale-deed Ex. B-1; She stated that after the purchase of the land from the plaintiff the third defendant was having a poultry farm in the said land and that due to the death of the 3rd defendant''s son he could not manage the same and sold away the land to the 2nd defendant. She further alleged that having influenced the Patwari the plaintiff got entered his name in column 16 of the Pahani even though he sold the same in 1969.

On these pleadings the trial Court framed the following issues:

Whether the plaintiff is in possession of the suit property on the date of the suit?

Whether the plaintiff is entitled to permanent injunctions as prayed for?

To what relief?

On the first issue the trial Court found that the plaintiff was in possession of the suit land on the date of the suit. On the second issue it held that the plaintiff was entitled to the injunction and decreed the suit on 11.10.1985.

Aggrieved by the judgment and decree of the trial Court, defendants 2 and 3 filed A.S.25/85 before the District Court, Khamman. The appellate Court held that the 3rd defendant lost title to the suit land by not being in possession of the same for the last 13 years from 1967 to 1980 and as such the 2nd defendant could not have derived any title to the suit land under Ex. B-4. It further observed that the 2nd defendant did not file any document to prove his possession. It recorded a further, finding that the plaintiff has been in possession and enjoyment of the land from the date of Ex. B-1 till 1980 and that in that view of the matter, confirmed the judgment and decree of the trial Court and dismissed the appeal on 17.7.1986.

Dissatisfied with the judgment and decree of the appellate Court the 2nd defendant has filed this second appeal.

Sri Ella Reddy, the learned counsel appearing for the appellant, contends that in view of the pleadings of the parties the Court below erred in recording the finding that the plaintiff was in possession of the land on the date of the suit, whereas in fact, the 2nd defendant was in possession of the land. I am afraid I cannot entertain the contention of the learned counsel. Whether the plaintiff was in possession of the suit land on the date of the suit or whether defendants 1 and 2 were in possession on the relevant date, is a question of fact which cannot be agitated in the second appeal.

It is next contended by Sri Ella Reddy that the finding recorded by the courts below that the 3rd defendant lost title by adverse possession is unwarranted and that the possession of the plaintiff was permissive possession and therefore he cannot seek permanent injunction against the true owner. Sri Agasthya Sarma, the learned counsel appearing for the first respondent-plaintiff, submits that the appellant court was right in recording the finding of title and that in any event the possession of the plaintiff even assuming it to be permissive possession cannot be worse than that of a tenant or trespasser. When a tenant or a trespasser in possession is entitled to injunction against true owner, the same relief cannot be denied to a person in permissive possession of the land.

In so far as the first limb of the submission made by the learned counsel for the appellant is concerned, it is well settled that for claiming title by adverse possession two things have to be established - (i) animus to possess property in question adverse to the true owner and (ii) actual possession of the property which should be overt and without attempt at concealment. The classical requirements of adverse possession are ''nee vi nee clam nee precario'', that is, possession must be adequate in continuity, in publicity and in extent. Question of adverse possession is a mixed question of fact and law. These basic facts which constitute adverse possession were neither alleged nor established; obviously for the reason that the suit is a suit for injunction and not for declaration of title. In my view the first appellate Court committed a gross error of law in holding that the second defendant lost title by adverse possession and in coming to the conclusion that mere because the 3rd defendant was not in possession of the land for over 13 years, the plaintiffs possession became adverse to that of the 3rd defendant. Possession and adverse possession are different and distinct concepts. Mere possession, however long, is not per se enough to constitute adverse possession; it is only one of the requirements of adverse possession. In adverse possession, the possessor''s claim is necessarily inconsistent with the claim of the true owner while in possession it is in conformity with the true owner''s claim. In any event, the impugned finding of the appellate Court in a suit for injunction is unwarranted. For these reasons the concurrent finding of the Courts below that the 3rd defendant lost title by adverse possession, is set aside.

The question that remains to be considered is whether a person in permissive possession is entitled to prohibitory injunction against a true owner.

Section 38 and 41 of the Specific Relief Act are relevant to the question of granting perpetual injunctions. Sub-section (1) of Section 38 provides that a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. Sub-section (3) of Section 38 provides that when the defendant invades or threatens to invade the plaintiffs right to, or enjoyment of, property, the Court may grant a perpetual injunction, -

(a) where the defendant is trustee of the property for the plaintiff;

(b) where there exits no standard for ascertaining the actual damage caused, or likely to be cause, by the invasion;

(c) where the invasion is such that compensation in money would not afford adequate relief;

(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.

Section 48 of the Specific Relief Act enumerates cases where injunction cannot be granted. It cannot be legitimately contended that after the permission to remain in possession is withdrawn, the possessor of the land has an obligation in his favour which requires to be protected, or the true owner after withdrawal of permission to occupy the land is invading or threatening to invade any right of the plaintiff or enjoyment of the property. Indeed, after the permission to occupy the land is withdrawn by the defendant, there is no legal or equitable right in the plaintiff to remain in possession or enjoyment of the land which has to be protected by the Court by granting equitable remedy of injunction. In such a case, in my view, clause (i) of Section 41, which provides that when she conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the Court an injunction cannot be granted is attracted.

A combined harmonious reading of Sections 38 and 41 of the Specific Relief Act leaves no doubt in my mind that a person in permissive possession of the land is not entitled to any injunction the true owner.

On the question of granting injunction against a true owner, Sri Agasthya Sarma relied upon the two judgments of this Court. The first is the decision in M. Annapurniah v. M. Narasimha Rao, AIR 1982 A.R253. In that case the tenant after the expiry of the period of lease, claimed injunction against the owner of the land. A division Bench of this Court held that possession of the tenant after the expiry of the lease is that of a tenant holding over and, therefore, the owner cannot evict him forcibly, and granted injunction. That case has no application to the facts of the present case as the possession of the plaintiff in this case is permissive. He has no right to continue in possession of the land after the permission to occupy the land is withdrawn. A person in permissive possession is not in the position as a tenant. The second case-Saraswati v. Veerahadra Rao, 1985(1) ALT 1, is a case of trespasser. A learned single Judge of this Court held that even the real owner cannot take forcible possession of property from trespasser. If the real owner obtains possession peacefully and without force, he would probably be entitled to injunction for protecting his possession. But where he uses force to get into possession he cannot claim injunction as he has approached the Court with unclean hands for an equitable relief. In my view, this judgment also had no application to the facts of this case. Every owner is expected to protect his possession against a trespasser. Having failed to protect the possession of the land and having allowed the same to be occupied by a trespasser, the owner cannot seek to dispossess him forcibly. It was in that view that the trespasser was held entitled to injunction against a real owner. But in case of permissive possession the licence is in possession by virtue of the permission granted by the real owner. He cannot be allowed to turn round and say that even if the permission is withdrawn he will not vacate the land is entitled to protect his possession by obtaining injunction against the real owner on the ground that owner''s only remedy is to file a suit and evict the licence. As stated above, there is no legal or equitable right in a licence after licence is withdrawn to remain in possession of the land and the owner has right of re-entry. Equitable relief of injunction is granted to protect a legal right or an equitable right, but not to defeat them. The plaintiff who is in permissive possession, cannot be granted injunction against the true owner. For this reason also, the judgment and decree of the appellate Court confirming the judgment and decree of the trial Court granting injunction in favour of the plaintiff, cannot be sustained. That would surely be inequitable and a relief inequity cannot be granted to bring about an inequitable result.

In this view of the matter, the judgments and decrees of the Courts below granting injunction in favour of the plaintiff against the true owner, the second defendant, are set aside. The second appeal is accordingly allowed, but having regard to the circumstances of the case, without costs.