Moola vs Smt. Ram Payari and Others

N.K. Kapoor, J.—This revision-petition is against the order of the Additional District Judge, Hissar, whereby interim injunction granted by the trial court restraining the respondents from dispossessing the plaintiff forcibly and illegally and from interfering with the tenancy rights of the plaintiff by alienating the suit land has been vacated.

The case set up by the plaintiff is that the land in dispute has been in possession of his forefathers since 1985. At the time of partition of the country, plaintiff''s father was in possession of the land as a marusi tenant. After partition, the land vested in custodian. Since the land was allotted to defendants father, plaintiff filed a suit in the court of the Assistant Collector 1st Grade, Hissar, in the year 1966 for grant of occupancy rights. The suit was decreed by the Assistant Collector 1st Grade but this order was set aside in appeal. In short, the matter went up to the apex Court and the case was remitted back to be decided on merits which is pending before the Special Collector, Hissar The present suit was filed seeking a restrain order against the defendants preventing them from dispossessing the plaintiff forcibly and illegally as well as restraining them from alienating the property to any other person. The trial court on perusal of material placed on record prima-facie came to the conclusion that balance of convenience is in favour of the plaintiff and so restrained the defendants from dispossessing the plaintiff and from alienating the land in dispute till the disposal of the suit. The appellate court despite having come to a finding that the petitioner is in possession of the suit land as a tenant has, for the reasons best known to him, declined to hold that the plaintiff has a prima-facie case or balance of convenience also lies in his favour and so accepted the appeal thereby reversing the order of the trial court. The broad facts which have been narrated in the earlier paragraph of this order have been admitted to be correct by the parties, i e., the suit under Sections 4, 6 and 8 of the Punjab Tenancy Act was filed by the present petitioner in the year 1966 and his claim was decreed by the court of the Assistant Collector 1st Grade. It is also admitted case of the parties that matter was remitted by the apex Court judgment reported as Moola v. Financial Commissioner 1981 P. L. J. 406 and is yet pending for a decision before the Special Collector, Hissar. Possession of the petitioner as a tenant is also admitted by the respondent Whether or not the petitioner has acquired occupancy rights has yet to be determined by the revenue court. Be that as it way, there is no denying the facts that the petitioner is in possession of the suit land as a tenant and this way the observation of the lower appellate court that there is no prima facie case in favour of the petitioner is palpably wrong. Similarly, the lower appellate court has erred in observing that balance of convenience is also not in favour of the petitioner. How and in what manner the lower appellate court has come to this conclusion is indeed difficult to comprehend Law protect possession of a trespasser even. Examined thus, the impugned order is palpably illegal. The lower appellate court despite having noticed the well known principles for grant of interim injunction, i. e. prima-facie case, balance of convenience and irreparable loss or injury, has vacated the interim injunction.

However, the learned counsel for the respondent; with his usual alertness yet stressed that even if be taken that the lower appellate Court has gone stray while evaluating the respective contention of the parties on the well laid tests of a prima-facie case ; balance of convenience and an irreparable injury, the same is not amenable to the revisional power of the court. Counsel relied upon the judicial pronouncement of this Court reported as Indian Oil Corporation Limited v. Uppal Engineering Private Limited 1991 P. L. J. 554 and Secretary to Government v. Krishan Kumar 1985 88 P. L. R. 535 which, in turn, are based on the judgment of the apex Court in The Managing Director (MIG) Hindustan Aeronautics Ltd. and Another, Balanagar Vs. Ajit Prasad Tarway, .

Before examining the matter on the basis of various judicial pronouncements of the apex Court and this Court, it would be beneficial to refer to the following observations of the Additional District Judge :-

"I find force in the contentions of learned counsel for the appellants. The respondent is recorded to be in possession of the suit land as a tenant whereas the appellants are admittedly the owner. Whether or not the respondent is occupancy tenant or whether propriety rights had vested in him are yet to be decided by the court. Merely because the suit has been filed for such declaration which is still pending in the revenue court cannot by itself fetter the ownership rights of the appellants in the suit land The appellants as owners can . deal with their property in any manner they like. I, therefore hold that the respondent does not have a prima-facie case. The balance of r convenience is also not in favour of the respondent. It is instead in favour of the appellants who are owners of the suit land and can enjoy their property in the manner they like. The respondent would not be subjected to irreparable loss or injury in case he is declined ad interim injunction".

The lower appellate court vide the above reproduced paragraph came to the conclusion that the petitioner is recorded to be in possession of the suit land as a tenant under respondent ; yet observed that he has no prima-facie case or balance of convenience and his dispossession would not occasion any irreparable injury.

On these premises, it is indeed difficult to hold that such an order cannot be interfered with u/s 115 of the Code of Civil Procedure. The lower appellate court has simply glossed over the admitted fact of petitioner''s possession and necessary inference that such a person is entitled to remain in possession till evicted in due course of time.

The matter was settled way back in 1971 by apex Court in Mohan Lal v. State of Punjab 1971 P. L. J. 338 that "under our jurisprudence even an unauthorised occupant can be evicted only in the manner authorised by law. This is the rule of law." To the similar effect is the observation of D. B. judgment of this Court Guru Nanak Ex-serviceman Cooperative Tenant Farming Society v. State of Haryana (1971) 73 P. L. R. 860.

Ignoring of the dictum of the apex Court by the lower appellate court is nothing but perversity in its approach. Impugned order is whimsical.

On facts of the case, non-interference by the court by taking shelter u/s 115 of the C. P. C. would amount to denial of justice besides giving further fillip to landlord''s designes to create hurdles in suit of the petitioner for acquisition of occupancy rights pending since 1966. Accordingly, I am of the opinion that order of lower appellate court so far as it deprives the petitioner to remain in possession of the suit land without any interference is unsustainable and the same is accordingly reversed. However, the respondent alienating the suit land.

Resultantly, I partly accept the revision petition, modify the order of the lower Appellate Court thereby restraining the respondents from interfering in possession of the petitioner or dispossessing him forcibly during the pendency of the suit. No costs.