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Judgment
P.S. Narayana, J.—The 3rd petitioner-Guntur District Milk Producers Mutually Aided Cooperative Union Limited (Sangam Dairy), represented by its in-charge Managing Director N. Jagan Mohan Rao came on record today by virtue of an order made by this Court in SAMP No. 23299 of 2003.
This Court on 19.9.1997 made the following order:
In view of the substantial questions of law raised under clauses 1 to 3 in ground No. 6 of the Memorandum of Grounds of Appeal, Second Appeal is admitted.
Further in CMP No. 12137 of 1997, this Court made the following order:
There shall be status quo as to the topography of the land, and both parties shall not make any constructions or alterations, until further orders.
The substantial questions of law which had been pointed out by Sri M. Srinivasa Rao, learned Counsel for the appellants are as hereunder:
In view of the law laid down by Supreme Court in 1994(3) ALT 25 that there cannot be an injunction against the true owner of the property, whether the order of the lower appellate Court in reversing the judgment of the trial Court and in granting injunction against the true owner in this case is not sustainable and liable to be set aside.
Whether the plaintiff has come forward with a false claim suppressing the fact whether he can be granted the equitable relief of injunction.
When the plaintiff is a licensee whether he is entitled to maintain the suit for injunction against the true owner.
The learned Counsel for the appellants had taken this Court through the respective pleadings of the parties and also the evidence available on record and the findings recorded by the Court of first instance and the findings recorded by the appellate Court and would maintain that in the facts and circumstances of the case, at the best the possession may be termed as permissive possession and inasmuch as the appellants are the lawful owners of the property in question, there cannot be a decree for perpetual injunction against the lawful owner. The learned Counsel also would contend that in view of the same, the Court of first instance arrived at the correct conclusion and dismissed the suit, but the appellate Court reversed the judgment and decree of the Court of first instance recording improper findings and hence the said findings cannot be sustained and the Second Appeal to be allowed. The learned Counsel also would submit that for sufficiently a long time the contesting respondent No. 1-first plaintiff has been in possession of this property and even otherwise even if the possession of such a party to be treated as that of a licensee, the same cannot be protected. The learned Counsel placed strong reliance on certain decisions.
Per contra, Sri G. Pedda Babu, learned Counsel representing the 1st respondent-1st plaintiff, the contesting party, would submit that the fact that this party has been in possession of the property in question is not in serious dispute. The learned Counsel also would contend that it is not as though this party entered into possession of the property unauthorisedly, but when once entering into possession is lawful, the mere fact that the possession is just permissive and it would not seriously alter the situation and in view of the same, atleast an obligation is cast on the appellants not to disturb such possession except by due process of law. The learned Counsel also pointed out to the findings, which had been recorded by the appellate Court, and would comment that the appellate Court specifically observed that such disturbance of possession by force of law cannot be permitted and in the light of the same liberty may be given to the appellants to take possession in accordance with law and till then the possession of this party to be protected. The learned Counsel placed strong reliance on certain decisions to substantiate his submissions.
Heard both the learned Counsel.
The substantial questions of law, which had been argued by the counsel on record, had already been referred to supra.
The 1st respondent as the first plaintiff along with certain others filed a suit OS No. 405 of 1988 on the file of II Additional Munsif Magistrate, Guntur as against defendants 1 to 3 praying for temporary injunction restraining the defendants and its men from in any way interfering with the possession and enjoyment of the plaint schedule property of the plaintiffs and their Union members. It was averred in the plaint as hereunder:
The plaintiffs are employees of the Guntur Co-operative Milk Supply Union Limited, situated at Amaravati Road, Guntur and the employees of the above Society formed themselves a registered Union called under the name of the Guntur Co-operative Milk Supply Union Limited, Guntur. The above Union purchased sale deed from Desu Venkaiah, s/o. Ramaiah, Guntur. The Union was in possession of the scheduled property. The members of the Union had raised huts and were living therein. The plaintiffs are among the members of the Union. The plaintiffs are applied for permission to build 20 pucca houses in 1971. The plans were approved. The scheduled property is by the western of the main building of the defendants society. The members of the plaintiff Union are now working under A.P. Dairy Development Co-operative Federation. Rumours are afloat that the defendants had purchased the scheduled property. The plaintiff Union did not sell the scheduled property to the defendants. The sale if any is void and is ignored since a month all the defendants are trying to dispossess the plaintiffs from the scheduled property and occupy the same. The defendants are continuing to threat the plaintiffs of dispossession. The defendants have no manner of right in the schedule property. The plaintiffs are constrained to take shelter in a Court of law because the defendants are powerful body.
The defendant No. 2 filed Written Statement with the following averments:
Previously there was a Milk Project at Vijayawada, which was catering to the needs of the consumers in milk in Krishna and Guntur Districts. The Guntur Co-operative Milk Supply Union Limited, Guntur, was registered as a cooperative society under the provisions of Co-operative Societies Act with registration No. 1 of 1886. The main object of the said Union was to give loans to the Milk Supplying Cooperative Societies in the District, collecting milk from them and supplying the same to the consumers. The said Union purchased the plaint schedule site under a registered sale deed dated 19.11.1963 from Desu Venkaiah and the adjacent site belonging to Hindu College under another registered sale deed. The Union constructed a building in the site purchased from Hindu College Committee, whereas the plaint schedule site was vacant and has been in possession of the Union. Later the said Union became defunct in the year 1971 and stopped business in the year 1973. After it became defunct, the plaint schedule site and the adjacent building in the site purchased from Hindu College Committee were taken over by the Vijayawada Milk Project with a view to supply milk to the consumers in Guntur town. Thus, the Vijayawada Milk Project was in possession of the plaint schedule site along with the building in the adjacent site, referred to above. After the formation of Sangam Dairy the Milk Project, Vijayawada, handed over the plaint schedule site along with the building in the adjacent site purchased from Hindu College Committee to Sangam Dairy for the purpose of preservation of the property and also for temporarily locating their office. At that time the plaintiffs 1 to 7 were working in the Milk Project, Vijayawada. They are not members of Guntur Cooperative Milk Supply Union at any time. The first plaintiff requested the Management of Milk Project, Vijayawada to permit him to raise a thatched shed in about 50 or 60 square yards of site on south-western corner of plaint schedule site promising to vacate the same whenever directed by the Milk Project authorities. The management, on humanitarian consideration, permitted him to raise a thatched shed with the condition to vacate the same as and when directed by them or the persons to whom the management of the site will be handed over by them subsequently or by a person representing the Milk Supply Union. Having agreed for the condition stipulated above, the 1st plaintiff raised a thatched shed in about 50 or 60 square yards of site in the plaint schedule property and has been living there. The other plaintiffs did not raise any house nor were they are in possession of any portion of the site. Later plaintiffs 3 to 7 ceased to be workers of Milk Project. When this defendant was appointed as liquidator of the Guntur Co-operative Milk Supply Union, he visited the place and found a thatched shed in plaint schedule site. When he questioned the 1st plaintiff, the later represented to the former that he raised the shed with the permission of the Milk Project, Vijayawada and that he would vacate the same as and when directed by the authorities. This defendant informed that he was appointed as a liquidator for the Union, that he has to realize the assets and pay the dues to the Government and that the 1st defendant should vacate the premises as early as possible. The adjacent site purchased from Hindu College along with the building therein was leased out to Sangam Dairy under an unregistered lease deed dated 3.2.1988 for 11 months and they are in possession of the building and site. The Sangam Dairy has located their Milk supply sales office in the said building. The plaint schedule site adjacent to the said building and the entire plaint schedule site, except 50 to 60 sq. yards of site in which the 1st plaintiff raised the thatched shed, has been in possession and enjoyment of the Union and later Milk Project, Vijayawada and later under Sangam Dairy on behalf of the Union. Therefore, the Sangam Dairy authorities have been keeping their milk lorries in the vacant portion of the plaint schedule site and have been in possession of the same. Thus, the other plaintiffs except plaintiff No. 1 have not been in possession of any portion of the plaint schedule site nor did they raise any houses there. Thus, this plaintiff alone has been in possession of about 50 to 60 square yards of site in which he raised a thatched shed originally and recently, about 3 months back, it was changed into asbestos shed. The rest of the plaint schedule property is vacant and has been in the possession of this defendant and the Sangam Dairy people have been using the same for keeping milk lorries.
When things stood thus, plaintiffs 1 to 7 filed the suit as if they raised7 houses in the plaint schedule site and that they have been in possession of the entire plaint schedule site. They have no legal title to the plaint schedule site. In IA No. 314 of 1988 filed for the temporary injunction by the plaintiffs, the lower Court passed an order that the status quo as on that date should be maintained. The plaintiffs did not get any Advocate appointed as Commissioner to find out the status as on that day. This defendant filed CMA No. 52/1988 and got a Commissioner appointed. He visited the suit site and filed his report.
As stated above, it is only the Guntur Co-operative Milk Supply Union, Guntur who is the owner of the plaint schedule site and this defendant has been in possession of the plaint schedule site except 50 or 60 square yards covered by the 1st plaintiff''s house, as liquidator. The plaintiffs have no title or possession of the suit site. The first plaintiff who raised a thatched shed in about 50 or 60 square yards of site on the southern side with the permission of the authorities of Milk Project, Vijayawada with a condition to vacate the same as and when directed by the Milk Project, Vijayawada or the authorities to whom they handedover possession of the remaining property or the proper person who represents the Milk Supply Union has not title to the said site and he has to vacate the above site. This defendant who was appointed as Liquidator of the Guntur Co-operative Societies Act demanded the 1st plaintiff to remove the house and deliver vacant possession of the same. Thus, the 1st plaintiff did not acquire any title to the site in which he raised the house and he is not entitled to continue in possession. Therefore, the plaintiffs have no valid title or possession of the suit property and the suit is a frivolous and vexatious one. The petitioners raised a fencing around the remaining site after the visit of the Commissioner. This suit is bad for want of notice u/s 126 of Guntur Co-operative Milk Supply Union Limited, Guntur, is a proper and necessary party to the suit.
Defendants 1 and 3 adopted the written statement of the 2nd defendant, which had been referred to above.
Before the Court of first instance the following issues were settled:
Whether the plaintiffs are in possession of the date of filing of the suit?
Whether plaintiffs are entitled to permanent injunction as prayed for?
To what relief?
The Court of first instance recorded the evidence of PWs.1 to 4, DWs.1 to 3, marked Exs.A1 to A9 and also Exs.B1 and B2 and recorded certain findings to the effect that the possession of the first plaintiff cannot be said to be legal possession and even assuming that the first plaintiff is in possession, he was either in permissive or authorized possession and hence he cannot maintain a suit for permanent injunction and accordingly negatived the relief. Aggrieved by the same, the first plaintiff preferred appeal AS No. 41 of 1991 on the file of II Additional District Judge, Guntur, and the appellate Court at paragraph 6 framed the following point for consideration:
Whether the appellants are entitled for grant of injunction as prayed for.
The appellate Court proceeded to discuss the oral and documentary evidence commencing from paragraphs 11 to 13 and observed that the appellant-first plaintiff is entitled to claim injunction and he can be dispossessed by the owner of the property only by due process of law and not otherwise and ordered accordingly and allowed the appeal to the said extent setting aside the judgment and decree of the Court of first instance. Aggrieved by the same, the present Second Appeal is preferred by defendants 2 and 3.
It is needless to say that the present proposed party, the 3rd appellant came on record, who is at present managing the affairs of the Milk Supply Union in question.
PW.1, the first plaintiff, narrated all the facts and also deposed that the site was purchased for the use of the Union and this witness also deposed that the office in which he is working is popularly known as Milk Supply Office and the said office was abolished in 1978 and all the plaintiffs were transferred to Vijayawada in 1979 and they constructed each one house in the said site in or about 1971. This witness also deposed that all of them sent an application to the Municipality for approval of the plan-Ex.A3, but the plan was not approved by the Municipality and it was shown that the plan was prepared by the Town Surveyor on 7.9.1975. PW.1 also deposed that the defendants never issued any notice to them calling upon to vacate, but one D. Koteswar Rao, Co-operative Sub-Registrar, came from Sangam Dairy and asked him to vacate the site and hence they filed the site. In the cross-examination of PW.1, no doubt certain admissions were made. Likewise, PWs.2, 3 and 4 also were examined, who deposed on similar lines to show that these parties have been in possession of the property. Exs.A1 to A9 also had been relied upon. As against this evidence, the evidence of DWs.1 to 3 is available on record and Ex.B1, the Commissioner''s Report and Ex.B2, the Commissioner''s plan also had been marked. In the light of the clear evidence available on record, the factum of possession as such appears to be not in serious controversy, but whether such possession can be protected by way of perpetual injunction, in the facts and circumstances, appears to be the question in controversy between the parties.
Section 38 of Specific Relief Act, 1963 deals with Perpetual injunction when granted and Sub-section (1) specifies "subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication". The words ''to prevent the breach of an obligation existing in his favour'' would assume some importance. It is no doubt true that in the light of the language employed in Section 38 of the Act aforesaid, "perpetual injunction may be granted" would go to show that granting of relief no doubt is discretionary, but in accordance with the settled judicial principles.
Strong reliance was placed on the decision of this Court in Regional Manager, APSRTC Vs. H.S. Sudhindra Aras, , wherein the learned Judge of this Court while dealing with Sections 62 to 64 of Easements Act, 1882 and permitting licencee to use premises without any legal right to possession thereof, and the licence if for specific period is deemed to have been revoked on expiry of the said period. A licence once revoked by operation of law or act of parties does not get revived merely because licence fee was received after such revocation and licence granted to respondent to run canteen at bus stand owned by petitioner for five years from 1997 to 2002, the licence gets revoked on expiry of said period unless renewed, and the order of injunction against eviction of respondent from licensed premises after expiry of licence period granted by trial Court and upheld by lower appellate Court, being illegal and unsustainable, liable to be set aside.
Strong reliance was placed on the decision of the Apex Court in Premji Ratansey Shah and Ors. v. Union of India and Ors. 1994(3) ALT 25, wherein the Apex Court held that issuance of an order of injunction is absolutely a discretionary and equitable relief and in a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession and it is not mandatory that for mere asking such relief should be given. Injunction is a personal right u/s 41(j) of the Specific Relief Act, 1963 and the plaintiff must have personal interest in the matter. The interest or right not shown to be in existence, cannot be protected by injunction. It was also held that injunction would be issued against the true owner 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 to claim injunction against the true owner....
However, reliance was placed on a decision of Nagpur Bench in Smt. Sarladevi Bandawar Vs. Shailesh Namdeo, , wherein while granting or refusing temporary injunction, the principles to be followed, the learned Judge of the said Nagpur Bench observed that person in possession of the property can claim temporary injunction even as against everyone including rightful owner and the rightful owner cannot evict him by force, but he has to follow due process of law. The view expressed in Karthiyayani Amma Vs. Govindan, was followed and the ratio in Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and Others, and M. Kallappa Setty Vs. M.V. Lakshminarayana Rao, also had been referred to.
As can be seen from the facts of the present case, initially the possession appears to be one of permissive possession, but subsequent thereto, for the reasons best known, the first plaintiff is not interested in vacating the property. In such circumstances, a suit for perpetual injunction had been thought of. As can be seen from the nature of relief, which had been granted by the appellate Court while reversing the judgment and decree of the Court of first instance, limited relief of injunction was granted that such possession can be disturbed only by due process of law. The facts in Regional Manager, Apsrtc, Sangareddi''s case (supra) and Premji Ratansey Shah and Ors.''s case (supra) are of in a slightly different context, however, strong reliance was placed on the principles which had been laid down in those decisions. In the facts and circumstances, though it is not clear as to whether any specified period as such had been agreed upon and what is the actual nature of transaction between the parties, in view of the fact that the lis is being continued for sufficiently a long time and instead of driving the appellants to yet another round of litigation, it would be just and proper to make appropriate orders in this Second Appeal, granting a period of six (06) months time to the 1st respondent-1st plaintiff to vacate the premises. This Court is making this order both in the light of the language employed in Section 38 of the Specific Relief Act, 1963 and inasmuch as only there is a limited obligation on the part of the appellants not to disturb the possession and also in the peculiar facts of the case and further on the ground of equity.
Accordingly with the above direction, the Second Appeal is hereby allowed negativing the relief of perpetual injunction as granted by the appellate Court and modifying the same and granting six (06) months time to the 1st respondent-1st plaintiff to vacate the plaint schedule property. The parties are directed to bear their own costs.