Nagahi Ram vs Hari Ram

K. Kannan, J.—The suit in the appeal had been dismissed by the courts below, rejecting the claim of the plaintiffs for declaration that they are owners in possession of the property. The plaintiffs had claimed that the property belonged to the their grand father. The contention was that the same had been abandoned by the defendant''s predecessors in favour of the plaintiffs predecessors. The plaintiffs relied on revenue entries from the year 1975-1976 showing that the property was being cultivated by the plaintiffs but against the ownership column the defendant''s name had been entered. The two courts have held that the plaintiffs had not been able to establish their ownership and they themselves did not raise any objection with regard to the revenue entry showing the defendant as owner. The plaintiffs contented that they had put up construction and they had been living there for more than 15-16 years and that they had also sunk a bore well. The suit was resisted by the defendant on a contention that he and his ancestors never abandoned the property in the village and they remained owners of the same, but they had been coming to the village to mortgage the property and to take the produce. It was also in defence that the suit land had for some time been given on lease to the plaintiffs who used to pay batai to the defendant and that plaintiffs had always recognized the defendant as owner of the land. It was also contended that the land measuring 2 kanal and 13 marlas compromised in Khasra No. 156/224 and Rectangle No. 16 in Khasra No. 1/2 had been mortgaged by the defendant''s predecessors to the plaint ill''s'' predecessors. It was also stated that the property which was held in ownership of the defendant had been sold during the pendency of the suit to one Amar Singh on 24.6.1992. The suit was dismissed holding that the revenue entries themselves refer to the property as the property belonging to the defendant. They had not also pleaded adverse possession. Consequently, the plaintiffs could not claim themselves as owners. The trial court held in issue No. 3 that although the plaintiffs were not owners of the property, but they were the persons in possession of the suit land and decided accordingly in favour of the plaintiffs and against the defendant. However, he ultimately dismissed the suit holding that the defendant is the owner and question of declaration does not arise. It was against that judgment that the plaintiffs had preferred an appeal, which was also dismissed, finding that the ownership of the defendant cannot be denied and the plaintiffs had not produced any abandonment of the rights of the ownership to the plaintiffs or his predecessors.

The following substantial questions of law arise for consideration in this second appeal:--

Whether the courts below were justified in rejecting the evidence of possession for a continuous period of more than 12 years prior to the suit and declining the relief of declaration and injunction?

Whether the courts below could have declined the relief of injunction of the plaintiffs who were in settled possession and who were admitted by the defendant himself to be in possession and be denied at least a lesser relief of injunction against the defendant?

I find that the courts below were justified in finding that there had been no proof of abandonment and no plea of adverse possession. The claim of declaration was unjustified. The revenue entries clearly showed that the ownership of the property vested with the defendant only. The relief of declaration declined to the plaintiffs was, therefore, perfectly justified and I, therefore, answer the first question raised against he appellants. It is fundamental principle of law that an injunction will not be granted to a party who denies the ownership of the defendant and seeks for injunction against an owner. Exceptions do exist that a person who seeks for declaration to the property as person in possession for several decades from the date of his grand father and, the defendant also admits that the plaintiffs'' predecessors were in possession as mortgagee with reference to some portion and as lessees with reference to some other portion, then the possession settled in their hands cannot be disturbed otherwise than in due process of law. In Rame Gowda (D) by Lrs. Vs. M. Varadappa Naidu (D) by Lrs. and Another, , the Supreme Court has observed that while normally a person in possession could be protected by injunction against the whole world except the true owner, it explained that if the plaintiff is in settled possession he can maintain an action even against a true owner and leave it to the owner to secure possession through the process of court. The courts could not have failed to grant at least a lesser relief. The power of the court to grant a lesser relief than what is sought for is too well recognized principle to be doubted. The suit could not have been dismissed in full. The plaintiffs'' possession ought to have been protected and the defendant and his successors ought to have been left to an independent right for taking possession, if so advised, in accordance with law. The decrees of the courts below are partly modified and the plaintiffs shall have a decree of injunction from the defendant and his successors from interfering in the plaintiffs'' possession otherwise than in due process of law. The second appeal is allowed to the above extent.

No costs.