Gurcharan Singh vs District/Chief Agricultural Officer and Another

Swatanter Kumar, J.—The present revision has been filed to challenge the order of the learned first Appellate Court dated 8.11.1995.

The plaintiff Gurcharan Singh had filed a suit for injunction on the basis that he was in possession of the suit-land and had constructed a workshop. His undisputed possession for the last twelve years had given him a right in the property and he was not liable to be dispossessed by the department of Chief Agricultural Officer, Jalandhar, who was one of the defendants in the suit. The suit was contested by the defendants. They had taken up a preliminary objection with regard to the maintainability of the suit for want of notice u/s 80 of the Civil Procedure Code. On merits, it was stated that the plaintiff was a trespasser in the premises and as such he had no right in equity or otherwise.

Along with the suit, the plaintiff had filed an application under Order XXXIX, Rules 1 and 2, read with Section.151 of the Civil Procedure Code, which was contested by the defendants. The trial Court allowed the application vide its order dated 3.2.1994 and restrained the defendants from disturbing the possession of the plaintiff and directed the parties to maintain status quo. Against this, the Government preferred an appeal which was allowed by the first Appellate Court and application for injunction of the plaintiff in the suit was dismissed.

The learned first Appellant Court while setting aside the order of the trial Court directed the plaintiff to vacate the premises within 30 days and consequently to give possession to the defendants in the suit. At this stage, it may be relevant to refer to the relief granted by the first Appellate Court in the appeal :-

"In the ultimate analysis of my above discussion I accept the appeal and vacate the impugned order of status quo granted by the learned trial Court and direct the plaintiff/respondent to vacate the site in dispute within 30 days from today. However, it is made clear that my above observations are confined to the disposal of this appeal having no bearing on the merits of the case. Parties are directed to appear before the trial Court on 8.12.1995. File be consigned to record room."

While the decision of the first Appellate Court is in conformity with the law laid down by the Hon''ble Supreme court of India in the case - reported as JT 1994 (6) SC 585 (Premji Ratansey Shahd and Ors. v. Union of India and Ors.), wherein it. has been held as under:-

"It is equally settled law that injunction would not be issued against the true owner. Therefore, the Courts below have rightly rejected the relief of declaration and injunction in favour of the petitioner who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as\\against the owner. Pretext of dispute of identity of the land should not be an excuse of claim injunction against true owner."

There is no dispute to the fact and in fact the plaintiff has also not claimed title or interest in the property. The relief prayed for by the plaintiff was that he should not be dispossessed from the premises, in question, except in due process of law. Granting of an injunction is a discretionary order and discretion has to be exercised in consonance with judicial process and well-settled principles of law. If a person has no interest or right in the property or possession which is lawful giving him a possessory right recognizable in law, it will be difficult for a Court normally to grant such discretionary relief of injunction in favour of such a person. The plaintiff has admitted that the property is of the defendants-Government and certainly the plaintiff has not been in an undisturbed peaceful possession to the knowledge of all concerned including the true owner for the last more than 30 years and as such claim of adverse possession as sought to be established prima facie is of no consequence. Mere acquiescence by itself in the facts and circumstances of the present case cannot give an indefaesible right of protection to the plaintiff. Thus the conclusion of the learned first Appellate Court that plaintiff was not entitled to injunction is a well-reasoned and well-founded view, but where the learned first Appellate Court has erred in law in granting a mandatory order in favour of the appellant and against the respondents to vacate and obvious consequences to hand over the possession to the appellants in appeal (the Government) within 30 days. This part of the relief granted is not only beyond the scope of the suit but is contrary to the settled basis of civil jurisprudence. An interim order has to be within the purview and scope of the suit itself i.e. as pleaded in the plaint and cannot be permitted to travel beyond such limitation. In the present case, in fact, there was no claim of possession faced by the defendants in the suit nor they had filed any other appropriate legal remedy for taking possession of the suit land. In these circumstances, there was no justification in passing the direction in the form of mandatory injunction, directing the appellant before this Court to vacate the premises in dispute within 30 days. Such direction would not be beyond the purview and scope of the appeal, but even that of the suit. Such approach is not permissible in law. It cannot be said that necessary corollary to the dismissal of the injunction application filed by the plaintiff was to direct the plaintiff to vacate the premises. The approach of the learned trial Court is apparently contrary to the settled principles of law as in a suit for injunction filed by the plaintiff, the Ist Appellate Court has practically decreed the suit for possession in favour of the defendants vide impugned direction. It will be an erroneous approach in law to hold that the declining of injunction to the plaintiff in the suit simpliciter that injunction tantamounts to lawful direction to vacate the premises in dispute. The error apparent on the face of record, in the judgment of the Ist Appellant Court is clear case of jurisdictional error and is hit by the doctrine of excessive jurisdiction.

For the reasons aforestated, this revision petition is partly accepted. The application under Order 39 Rules 1 and 2 read with Section 151 of the CPC filed by the plaintiff stands dismissed. However, the direction to vacate the premises within 30 days as contained in the impugned order dated 8.11.1995 is set aside. The order of the Ist Appellate Court shall stand modified to that extent without any order as to costs.