Daljeet Singh and Others vs Chhagani Ram and Others

Dr. Vineet Kothari, J.—The present second appeal under Section 100 of the Code of Civil Procedure has been filed by the plaintiff-appellant-Daljeet Singh S/o. Tara Singh against the defendant-respondent-Chhagani Ram S/o. Achalu Ram being aggrieved by the reversal of the decree by the first appellate court by the impugned order dated 05.02.2002 allowing the defendant-Chhagani Ram''s appeal, namely Civil Appeal (Decree) No. 2/2002 : Chhagani Ram & Anr. Vs. Daljeet Singh.

The learned Trial Court had decreed the suit (Civil Original Suit No. 230/2000 (287/1995) for permanent injunction in favour of the plaintiff-Daljeet Singh on 21.12.2001. The relevant findings of the learned Trial Court narrating the facts in brief are quoted herein below for ready reference:-

The first appeal filed by the defendant-Chhagani Ram, however, came to be allowed by the first appellate court of learned Additional District Judge No. 2, Jodhpur allowing the defendants-Chhagani Ram''s appeal, namely Civil Appeal (Decree) No. 2/2002 : Chhagani Ram & Anr. Vs. Daljeet Singh with the following observations:-

Being aggrieved, the plaintiff-Daljeet Singh has filed the present second appeal in this Court on 02.04.2002 in which, the following substantial questions of law were framed by the co-ordinate Bench of this Court on 11.01.2007 which read as under:-

"(a) Whether in the facts and circumstances of the case and on the basis of material on record, it can be held that the plaintiff was/is not in possession of the land in question?

(b) Whether in absence of ownership of an open plot, only on the basis of some movable material, it can be said that defendant was/is in possession of the land in question?

(c) Whether the finding of the learned First Appellate Court about possession is based on mis-reading of the evidence?

(d) Whether even as per the report given by the Court Commissioner, possession of the plaintiff has been proved or not?"

The learned counsel Dr. A.A. Bhansali appearing for the appellant-plaintiff-Daljeet Singh urged that though the learned First Appellate Court concurring with the learned Trial Court also found that the Plot Nos. 38 and 39 in question purchased by the real brother of the plaintiff-Daljeet Singh namely, Paramjeet Singh, was situated in khasra No. 1880 in village Mandore, Jodhpur whereas, the patta issued in favour of the defendant No. 2-Krishna Kumar S/o. Ganga Shankar was for Plot Nos. 44 and 45 and, therefore, the defendant No. 1-Chhagani Ram claiming through the defendant No. 2-Krishna Kumar could not claim any possession or right to interfere with the Plot Nos. 38 and 39 of the brother of the plaintiff, namely, Paramjeet Singh on whose behalf the plaintiff had filed the present suit for permanent injunction, since the brother of the plaintiff, namely, Paramjeet Singh, was living in England.

The learned counsel Dr. A.A. Bhansali also submitted that the learned Appellate Court has erred in recording the finding in para-16 of the order that in the sale-deeds in favour of the plaintiff''s brother, there was no mention of construction in the form of ''Oriya'' whereas, the sale-deeds Exhibits-1 & 2 would clearly reveal that there was a construction of a room in the said plot of lands purchased by the purchased by the Paramjeet Singh. The learned counsel further submitted that the defendant-Chhagani Ram, who was a contractor, admittedly, claimed his possession on the disputed plot of lands with effect from 24.06.1995 whereas, the sale-deeds in favour of the Paramjeet Singh was two years'' prior to that in the year 1993 and the seller of plot to Paramjeet Singh, namely, Suman Devi D/o. Shiv Ratan Soni had put him in possession of the said plot of lands in question, which were illegally encroached by the defendant No. 1-Chhagani Ram. The learned counsel Dr. A.A. Bhansali further submitted that merely because, the learned First Appellate Court wrongly found that the plaintiff himself was not in the possession of the said plot of lands in question, therefore, he was not entitled to claim any injunction against the defendant and on that basis, the appeal filed by the defendant-Chhagani Ram was allowed even though the suit filed by the plaintiff-Daljeet Singh was decreed by the learned Trial Court.

The learned counsel Dr. A.A. Bhansali relied upon the decision of this Court in the case of Smt. Rakheli Bai Vs. Pyare Lal reported in 2006 WLC 763 in support of his contention that mere illegal encroachment by putting the stone-slabs on the plot of lands in question which were, admittedly, belonging to the plaintiff/his brother, it cannot be said that the defendant-Chhagani Ram was in possession of the plot of lands in question and no injunction could be granted in favour of the plaintiff-Daljeet Singh.

The learned counsel also relied upon the decision of the Hon''ble Supreme Court in the case of Rame Gowda (D) by Lrs. Vs. M. Varadappa Naidu (D) by Lrs. and Another, and submitted that the plaintiff was in settled possession of the plot of land in question and, therefore, he was entitled to claim injunction against the defendant for not interfering with his possession. The relevant portion of the observations of the Hon''ble Supreme Court is quoted herein below for ready reference:-

"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. The owner of any property may prevent 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, 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 the cases, the possession of the trespasser just entered into would not be called as one acquiesced to by the true owner. 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 Court laid down the following test 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 useful tests to determine the quality of settled possession in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown up by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession. Therefore, when title of either party was not prove and plaintiff was found to be in settled possession he would be entitled to relief of injunction restraining defendant from interfering with his possession."

The learned counsel Dr. A.A. Bhansali appearing for the appellant-plaintiff-Daljeet Singh also relied upon the decision of the Hon''ble Supreme Court in the case of Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead) through L. Rs., and the decision of the Hon''ble Punjab & Haryana High Court in the case of Rajinder Kumar Saini Vs. Municipal Committee, Hisar, in support of his contention that a trespasser cannot claim retention of his possession against the true owner of title-holder of the property.

On the other hand, the learned counsels Mr. R.K. Thanvi, Senior Advocate with Mr. V.L. Thanvi and Mr. Narendra Thanvi appearing for the respondents-defendants relied upon the decision of the Hon''ble Supreme Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, and urged that in the present suit, admittedly, the plaintiff-Daljeet Singh himself was not the owner of the plot of land in question and the same were purchased by his brother namely, Paramjeet Singh, therefore, the plaintiff could not claim any injunction against the defendants and, if at all, Paramjeet Singh was aggrieved, he could have claimed possession of the plot of land in question. The learned counsel Mr. R.K. Thanvi, however, submitted that since it has been held by the Courts below that the title of the plot of lands in question was not with the defendant-Chhagani Ram and there is no cross-objection or counter claim filed by the defendant-Chhagani Ram, the defendant-Chhangani Ram is not claiming any title of the property in question but he is entitled to protect his possession over the said plot of land in question. The learned counsel Mr. R.K. Thanvi also submitted that the right to sue in the present suit of the plaintiff-Daljeet Singh, brother of the Paramjeet Singh, the actual purchaser of the property, has not been challenged by the defendant-Chhagani Ram.

Having heard the learned counsels for the parties and upon perusal of the record of the case, including the findings of both the learned Courts below recorded in the judgments and decrees dated 21.12.2001 and 05.02.2002, this Court is of the opinion that the First Appellate Court has clearly fallen into an error in allowing the defendant-Chhagani Ram''s appeal, while recording the finding that the title of the plot of lands in question namely, Plot Nos. 38 and 39, was admittedly with the brother of the plaintiff, namely, Paramjeet Singh and there was no right, title or interest with the defendant-Chhagani Ram. It is also noticed that the defendant-Chhagani Ram has no document of title in his favour in respect of these plot of land, namely, Plot Nos. 38 and 39 and no document of title was produced by him before the learned Trial Court. The defendant-Chhagani Ram could not have claimed a legal possession over these plot of land (Plot Nos. 38 and 39) by illegally encroaching upon the same and by putting the stone-slab on the plot which was admittedly belonging to the plaintiff/his brother. The judgment relied upon by the learned counsel Mr. R.K. Thanvi, Senior Advocate is of no avail to him, since the said judgment clearly says that a person in wrongful possession is not entitled to an injunction against the rightful owner whereas, in the present case, both the Courts below have found that the defendant-Chhagani Ram is not the owner of the said plot of lands in question. The right to sue of the plaintiff-Daljeet Singh is unquestionable and the same has rightly been not challenged by the defendant at any point of time. The possession over the said plot of lands in question of the plaintiff-Daljeet Singh as well as his brother namely, Paramjeet Singh right from the year 1993 when the registered sale-deeds were executed by the seller Smt. Suman Soni D/o. Shiv Ratan Soni was with them de facto and de jure. It is also noticed that while the learned Trial Court had found that the title and possession over the said plot of lands in question (Plot Nos. 38 and 39) is with the plaintiff-Daljeet Singh/his brother - Paramjeet Singh, the First Appellate Court clearly slipped into an error in recording the finding that the plaintiff was not in possession of the plot of land in question while holding that the title in favour of Paramjeet Singh was duly proved whereas, it was clearly established by the plaintiff-Daljeet Singh that while his brother Paramjeet Singh had purchased the said plot of land and because of the reason that he (Paramjeet Singh) lived in England, the plaintiff-Daljeet Singh was put in possession of the said plot of land and was taking care of the same. In the opinion of this Court, the plaintiff-Daljeet Singh has a right to seek injunction against a trespasser, who by encroaching over the property, comes in possession, like in the present case, the defendant-Chhagani Ram. The case laws cited by the respondents at the Bar do not require any discussion, as they are not directly on the point involved.

Therefore, in view of the discussion made herein above, the present second appeal filed on behalf of the appellant-plaintiff-Daljeet Singh S/o. Tara Singh deserves to be allowed with costs and the above quoted substantial questions of law deserves to be answered in favour of the plaintiff-appellant.

Accordingly and in view of the above, the present second appeal is allowed with costs of Rs. 10,000/- (Rupees Ten Thousand only); and the judgment and decree of the learned Trial Court dated 21.12.2001 is restored, while setting aside the judgment and decree dated 05.02.2002 passed by the First Appellate Court and the substantial questions of law are answered in favour of the appellant-Daljeet Singh accordingly.

The defendants-Chhagani Ram & Krishna Kumar shall remove their encroachment/construction(s) from the Plot Nos. 38 and 39 in question within a period of two months from today and if they themselves do not remove the encroachment/construction (s), the Municipal Authorities shall remove the same at their costs and restore the peaceful and vacant possession of the plot of land in question (Plot Nos. 38 and 39) in favour of the plaintiff-appellant-Daljeet Singh. The costs of Rs. 10,000/- will be paid to the appellants within three months from today.