Shankar vs Ram Kala and others

J. V. Gupta, J.

This is defendant''s second appeal against whom suit for permanent injunction has been decreed by both the Courts below.

The plaintiff filed the suit for permanent injunction alleging that he was the owner of the site in dispute and the defendant without any right, title or interest in the suit property wanted to dispossess him forcibly and illegally. In the written statement it was pleaded that the plaintiff had no right or title in the suit property. It was a public street and vests in the Gram Panchayat, Kakrala. The plaintiff was in its illegal possession and had encroached upon the same forcibly. The defendant also challenged the jurisdiction of the Civil Court to adjudicate the dispute, the site being vested in the Gram Panchayat under the Punjab Village Common Lands (Regulation) Act, 1961.

Both the Courts below have concurrently found that the plaintiff has failed to prove that he is the owner of the site in dispute. However, the plaintiff''s suit has been decreed on the ground that since he is in occupation thereof, he could not be dispossessed forcibly. Dissatisfied with the same, the defendants have filed the second appeal in this Court.

At the time of motion hearing, it was contended that the Courts below were in error in granting an injunction in favour of the plaintiff and against the defendants when they were merely exercising a public right over the passage.

Learned counsel for the appellant contended that when it has been found that the plaintiff was not the owner of the site in dispute but was rather in forcible occupation thereof, the suit could not be decreed for injunction and was liable to be dismissed on that ground alone. It was further contended that since the plaintiff himself has encroached upon the public street, he was not entitled to any injunction against the defendants who were also entitled to use the same being the public street. In support of this contention he referred to Zahara Bi v. Sheik Dawood, 1966(1) ILR Mad. 550.

On the other hand, learned counsel for the plaintiffrespondent submitted that even if the plaintiff was not the owner of the site in dispute, he was entitled to the decree for injunction as he could not be dispossessed forcibly. In support of his contention he referred to Sadhu Ram v. Gram Panchayat Pasthana, 1984 PLJ 217 : 1984(1) R.C.R.(Rent) 483 : 1984 R.R.R. 23 and Kanwar Pal v. Om Parkash, 1985 RLR 221.

After hearing the learned counsel for the parties, I am of the considered view that on the facts and circumstances of the present case, the plaintiff was not entitled to any decree for injunction. He came to the Court with a specific plea that he was the owner of the property in dispute. Having failed to prove the same, the suit was liable to be dismissed on that short ground alone. Apart from that, according to the defendants, it was a public street and it has been so found by the Courts below as well. Once it is so found the plaintiff''s suit could not proceed in the absence of the Gram Panchayat because the suit property vested in it. The plaintiff did not implead the Gram Panchayat intentionally because in that situation, the jurisdiction of the Civil Court would have been barred under Section 13 of the Punjab Village Common Lands (Regulation) Act, 1961. Thus the plaintiff could only succeed if he could prove that he was the owner of the site in dispute and not otherwise. The defendants are not the trespassers interfering with the right of the plaintiff. The plaintiff has himself encroached upon the public street and the defendants have every right to use the same and therefore, no injunction could be issued against them as such. The authorities relied upon by the learned counsel for the respondents have absolutely no bearing on the facts of the present case. It was held in Zahara Bi''s case (supra) that by the present application the plaintiff in effect sought to obstruct the defendants from their obtaining access from their premises to the highway. The injunction which the plaintiff claimed, if granted, would deprive the defendants of their lawful right of access to the public street. The defendants could have even as against the municipality claimed the removal of the encroachment, even if the municipality had authorised the same. The defendants ought not to be restrained by a permanent injunction from exercising their lawful right. The plaintiffs had no right in themselves to be maintained in that encroachment. Perpetual injunction could be granted only on the merits of the case on final determination of the rights of the parties, and here the plaintiffs had no title or right in the property in question to be maintained in their possession even as against the defendants.

Apart from that the Division Bench of this Court in R.S.A. No. 1633 of 1976, Sohan Singh and another v. Jhaman and others decided on 18.12.1985 (1986 RRR 579) has laid down 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 the 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 defendants. No such finding has been given in the present case. On that ground also, the plaintiff was not entitled to any decree for permanent injunction.

In these circumstances, the appeal succeeds and is allowed with costs. The judgments and decrees of the Courts below are set aside and the plaintiff''s suit is dismissed.