Lekh Ram vs Jhandu

J.V. Gupta, J.—This is Defendant''s appeal against whom suit for injunction has been decreed by both the Courts below.

The Plaintiff Jhandu brought the suit for declaration to the effect that he was the owner in possession of plot No. 847/673 measuring 10 Marlas, gair mumkin. He also claimed the relief of permanent injunction restraining the Defendant from forcible possession of the suit plot and from claiming ownership of the same. According to the Plaintiff, the suit plot was never allotted to the Defendant by the Consolidation Department nor he could be an allottee of this plot according to the Scheme The entry in the column of ownership in the Jamabandi for the year 19-2-73 in favour of the Defendant is without any effect on the rights of the Plaintiff The suit was contested on the plea that the Defendant was the owner of the plot, in dispute. It was also denied that the Plaintiff was in possession thereof. The Defendant alleged that he had got the foundation filled up at his expenses about 30 years back on the plot, that he had been storing batoras and bricks and tethering his cattle for the last more than 30 years on that plot and that he had put up fence around the said plot for the last more than 20 years The trial Court found the Plaintiff has failed to prove his ownership of the suit land. However, on the question of possession, the trial Court found that the Plaintiff was in possession and on that basis alone, decree for perpetual injunction was passed restraining the Defendant from interfering with the possession of the Plaintiff over the plot in dispute. The suit so far it related to relief of declaration was dismissed. In appeal, the learned Additional District Judge confirmed the said findings of the trial Court and thus maintained the decree regarding prepetual injunction passed in favour of the Plaintiff.

Learned Counsel for the Defendant-Appellant submitted that once it was found that the Defendant was the owner of the suit land, no decree for perpetual injunction could be passed against him. In support of his contention, he referred to a Division Bench judgment of this Court in Sohan Singh and Anr. v. Jhaman (1986) 89 P. L. R. 326. It was also contended that the Plaintiff was never in possession of the suit land. Moreover, it being a vacant piece of land, the possession will go with the ownership.

No one is present on behalf on the Plaintiff Respondent in spite of issuance of actual date notice for 28-9-1987.

After hearing the learned Counsel for the Appellant, I find force in his contention. Admittedly, in the present case, the Plaintiff came to the Court for a declaration that he was the owner of the suit land. This claim of the Plaintiff has been negatived by both the Courts below and the suit for declaration has been dismissed. Once it is so found then the Plaintiff was not entitled to the relief of injunction on the basis of possession, if any in Sohan Singh''s case (supra), it was held 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''s that there was some overt act of threat of any kind of commission of an act contrary to the Plaintiff''s rights on the part of the Defendant to illegally 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 was also made clear therein 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 he fails to prove the same at the trial, then 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.

In the present case, there was neither any such plea of forcible dispossession nor is there any such finding by the Court below. In the circumstances, the appeal succeeds the judgment and decree of the Court below are set aside and the Plaintiff''s suit is dismissed with no order as to costs.