Ravinder vs Virender Singh, Narender Singh, Vijender Singh and Yogender Singh

J.M. Malik, J.—The trial court vide the impugned order dated 31.1.2007 has refused to grant temporary injunction on an application moved

by the appellant/plaintiff under Order XXXIX Rules 1 and 2 CPC and has permitted the defendants''/respondents'' application under Order

XXXIX Rule 4 CPC. Aggrieved by that order, the present appeal has been preferred by the appellant.

The appellant/plaintiff filed a suit for specific performance as well as for permanent injunction for restraining the respondents from dispossessing

him from the suit land. As a matter of fact, the parties have entered into an Agreement to Sell dated 22.10.1996. The appellant/plaintiff was the

vendee. The relevant stipulations in the Agreement to Sell are reproduced as under:

And whereas the first party have agreed to sell and the second party has agreed to purchase the above mentioned property with all rights, title,

interest, etc. thereto Along with all fixtures and fittings attached thereto, free from all encumbrances, at the rate of Rs. 5,25,000/- (Rs. five lakhs

and twenty five thousand only) per acre, i.e. land measuring 4 bighas and 16 biswas, out of which the first party has today received a sum of Rs.

4,50,000/- (Rs. four lakhs and fifty thousand only), from the second party in case in advance as earnest money and the part payment and the

receipt of which the first party hereby admits and acknowledges and the balance amount as per rate mentioned above, will be paid by the second

party to the first party within six months from the date of this Agreement to Sell, at the time of registration of the sale deed, to be executed by the

first party in favor of the second party or his nominees after obtaining all the necessary sale permissions, N.O.C. etc. required under law and shall

get the Sale Deed registered in the office of the Sub-Registrar, concerned to the entire satisfaction of the second party, after the receipt of the

balance consideration amount.

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That the first party will be bound to apply and obtain the N.O.C. I.T.C. etc. or any other sale permissions required under law for the sale of the

said land in favor of the second party or his nominee''s.

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That the first party will deliver the actual physical vacant possession of the said land which is under sale to the second party at the time of

registration of sale deed.

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That hereafter the second party shall be fully entitled to enter into any agreement to sell with any person/s for the sale and transfer of the said land

and to receive the advance money from the intending purchaser, and for this the first shall have no objection.

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That if the first party do not perform their part of contract within the stipulated period or backs out with the terms and conditions of this Agreement

to Sell, then the second party shall have full right to get the said transaction completed through the court of law under the suit for specific

performance at the the costs, expenses and damages of the first party.

Learned Counsel for the appellant has vehemently argued that the respondents have failed to apply and obtain NOC, ITC, etc. or any other sale

permission required under the law for the sale of the said land in his favor. He further submitted that the appellant is still willing and ready to

perform his part of contract. He also pointed out that the appellant has already entered into an agreement to sell with the other party and

consequently, the balance of convenience lies in his favor. He has also drawn my attention towards the order passed by this Court, while it was

pending here and before it was transferred to the learned District Judge due to enhancement of jurisdictional value, to prove that the appellant is in

possession of the suit property. The relevant portion of the said order dated 24.07.2001 is reproduced as follows:

It is also submitted by Mr. Gupta that in case the land in question has vested in Gaon Sabha and the plaintiff is not interested in getting the Sale

deed of the land in question, the defendant is willing to refund the earnest money provided the plaintiff hands over the possession of the land in

question to the defendants. Learned Counsel for the plaintiff wants to seek instruction from the plaintiff on this aspect.

At his request, adjourned to 7th August, 2001.

Learned Counsel for the appellant also pointed out that the appellant has already spent a colossal amount and Therefore, he is in possession of the

suit property.

Counsel for the respondents, on the other hand, submitted that the land in question consists of four acres, out of which 3 acres are lying vacant

but on the fourth acre the appellant has constructed some jhuggis. He further submitted that the appellant is in unauthorised possession of one acre

of land. He alleged that appellant is a property dealer and took law in his own hands. He also pointed out that NOC cannot be obtained by one of

the parties. Both the parties must sign the NOC. He further argued that the respondents have been asking the appellant to sign the NOC but he put

off the matter on one pretext or the other.

It goes beyond the pale of my comprehension as to how did the appellant got the possession of the suit land, particularly, when it was agreed

between the parties that the respondents would deliver the actual physical vacant possession of the said land in favor of the appellant at the time of

registration of the sale deed. The appellant has failed to explain as to how he came into the possession of the suit land. He is not supposed to take

the possession of the land by hook or by crook. The Court never appreciates when the subject takes the law in its own hands. If somebody has

got grouse, he should knock at the doors of the Court. This is the paramount duty of the court to put a ring of protection towards weak and meek.

In case there was any default on the part of the respondents, they should have been warned the opposite party by serving a legal notice. The

agreement authorises the appellant to enter into an agreement to sell with any other person for the sale and transfer of the said land and to receive

the advance money from the intended purchaser but it nowhere states that he will be entitled to trespass upon the land in question.

In Sopan Sukhdeo Sable and Others Vs. Assistant Charity Commissioner and Others, , it was held that:

There are two different sets of principles which have to be borne in mind regarding course to be adopted in case of forcible dispossession.

Taking up the first aspect, it is true that where a person is in settled possession of property, even on the assumption that he has no right to remain in

property, he cannot be disposed by the owner except by recourse of law. This principle is laid down in Section 6 of the Specific Relief Act, 1963.

That Section says that if any person is dispossession without his consent from immovable property otherwise than in due course of law, he or any

person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. That a person

without title but in ""settled"" possession - as against mere fugitive possession - can get back possession if forcibly dispossessed or rather, if

dispossessed otherwise than by due process of law, has been laid down in several cases. It was so held by this Court in Yashwant Singh v. Jagdish

Singh AIR 1968 SC 620 , Krishna Ram Mahale (Dead), by his Lrs. Vs. Mrs. Shobha Venkat Rao, ; Ram Rattan and Others Vs. State of Uttar

Pradesh, and State of Uttar Pradesh and Others Vs. Maharaja Dharmander Prasad Singh and Others, The leading decision quoted in these rulings

is the decision of the Bombay High Court in K.K. Verma and Another Vs. Union of India and Another,

Now the other aspect of the matter needs to be noted. Assuming a trespasser ousted can seek restoration of possession u/s 6 of the Specific

Relief Act, 1963 can the trespasser seek injunction against the true owner? This question does not entirely depend upon Section 6 of the Specific

Relief Act, but mainly depends upon certain general principles applicable to the law of injunctions and as to the scope of the exercise of discretion

while granting injunction? In Mahadeo Savlaram Shelke and Others Vs. Puna Municipal Corporation and Another, , it was held, after referring to

Woodrofe on ""Law relating to injunction: L.C. Goyal ''Law of injunctions'': David Bean ''Injunction'' Jaycee on injunctions and other leading

Articles on the subject that the appellant who was a trespasser in possession could not seek injunction against the true owner. In that context this

Court quoted Shiv Kumar Chadha and Others Vs. Municipal Corporation of Delhi and Others, wherein it was observed that injunction is

discretionary and that:

Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court.

Reference was also made to Dalpat Kumar and Another Vs. Prahlad Singh and Others, in regard to the meaning of the words ''prima facie

case'' and balance of convenience'' and observed in Mahadeo''s case (supra) that:

It is settled law that no injunction could be granted against the owner at the instance of a person in unlawful possession.

In view of the discussion above, I find no merit in the appeal. FAO 86/2007 and CM Nos. 3275-3276/2007 are accordingly dismissed.