Kanwar Pal and another vs Om Parkash and others

Gokal Chand Mital, J.—After hearing the Learned Counsel for the parties I am of the view. that this appeal deserves to succeed.

Kanwar Pal and Ashok had come to Court to injunct the Defendants from interfering in, their peaceful possession of the land in dispute as it was apprehended that the Defendants'' wanted to forcibly dispossess the Plaintiffs. It was added that the Plaintiffs were in posisesssion as tenants. In the written. statement the Defendants pleaded that the Plaintiffs were neither tenants nor were in possession and claimed that the Defendants were in possession. The matter was tried by the trial Court. On the basis of the evidence the trial Court gave a definite finding that the Plaintiffs were in possession and the Defendants were not in possession. The trial Court also found that the Plaintiffs were not proved to be the tenants. In view of the findings that the Plaintiffs were in possesion, by judgment and decree dated, 10th December, 1983. It restrained the Defendants from forcibly disposseasing the Plaintiffs from the suit land except in due course of law. The Defendants went up in appeal. Before the appellate Court the finding of the trial Court about the Plaintiffs''. possession was not challenged. Para 7 of the appellate Court judgment is relevant in this behalf and is reproduced below:

The finding of the trial Court to the effect that the Respondents were in forcible possession of the land as trespassers was not challenged, by either party.

Thereafter the lower appellate Court proceeded to held that since Plaintiffs pleaded tenancy, which they failed to prove, injunction which was an equitable relief could not be granted to them since they had not come to Court with clean hands and concealed material facts. It also observed that the trial Court was in error in making out a case for the Plaintiffs, which they had not pleaded. In this behalf the lower appellate Court observed that the simple question before the Court was whether the Plaintiffs were in occupation of the land as tenant and once they failed to prove tenancy, the suit was liable to be dismissed. In this view of the metter, the appeal was allowed and the suit was dismissed. This is Plaintiffs'' second appeal 3. After hearing the Learned Counsel for the parties I am of the view that the judgment and decree of the lower appellate Court cannot be sustained in law. Once it is accepted that the Plaintiffs are in peaceful possession of the land, although as tres-passers, in view of Division Bench judgment of this Court in Sadhu Ram v. Gram Panchayat Pastana 1984 P.L.J. 217, the Courts have no option but to issue injunction to the Defendants from disturbing the Plaintiffs'' possession except in due course of law.

In Mohan Lal v. State of Punjab 1971 R.L.R.370, relief was granted by the Supreme Court to the persons, who were found to be in un authorised possession of Gram Panchayat land. It set aside the order of this Court dismissing the writ petition. this Court had dismissed the writ petition of the occupants on the ground that when they had not put forward correct facts before this Court they were not entitled to any relief. In view of established possession of the writ Petitioners, the Supreme Court granted relief to them after making the following observations:

Under our jurisprudence even the un authorised occupant can be evicted only in the manner authorised by law. This is the essence of the rule of law.

The Division Bench in Sadhu Ram''s case (supra) took notice of the aforesaid decision along with various other decisions in coming to the conclusion that even the ties-passer would be entitled to protection of Court.

Referring to the matters dealt with by the lower appellate Court, it is true that the Plaintiffs raised a false plea of tenancy. It is equally true that the Defendants raised false plea of their possession, When both the parties have been found to be false, the Court has to mould the relief on that basis. When the Plaintiffs have been found to be in possession they would be entitled to a decree for permanent injunction, not to remain in possession for all times to come, but till such time they are dispossessed in accordance with law.

Adverting to the second aspect, the Plaintiffs have pleaded their possession as also tenancy. On the basis of tenancy they can not protect their possession but as trespassers they would be entitled to protect their possession in view of Sadhu Ram''s cast (supra)- In this view of the matter, it cannot be said that any new case is being made out for the Plaintiffs or that it would be beyond the pleadings The relief has to be moulded by the Courts in accordance with the fact ultimately found. The technical rule about the matter being beyond the pleadings is not attracted on these facts.

For the reasons recorded above this appeal is allowed, the judgment and decree of the lower appellate Court are set aside and those of the trial Court are restored. However, parties are left to bear their own costs.