Sohan Singh vs Jhaman

J.V. Gupta, J

This second appeal was heard by me earlier sitting singly when it was urged on behalf of the defendantsappellants that the plaintiff was not entitled to the relief of the permanent injunction when it has been found by the Courts below that his possession was that of a trespasser and that too over a part of the suit property whilst they were the owners thereof. It was also contended that once it is found that they were the owners of the suit property and the plaintiff was a trespasser thereon no relief of permanent injunction could be granted to the plaintiff. Since I found the question involved to be of importance and likely to arise in many cases, I referred the case to a larger Bench to determine as to whether the plaintiff is entitled to the relief of permanent injunction or not in view of the provisions of Section 37 read with Section 38 of the Specific Relief Act (hereinafter called the Act) when it is found by the Court that his possession over the suit property is that of a trespasser and the defendant is held to be the owner thereon. It is under these circumstances that this case has come up for final hearing before us.

The brief facts are that the plaintiffrespondent Jhaman (now deceased) filed the suit for the grant of the declaration and the permanent injunction restraining the defendant from interfering with his possession on the allegations that he was in possession of the nauhra which belonged to him; he constructed the same more than 30 years ago and had been in its peaceful possession since then; over a part of the land, in dispute sugarcane crops were being cultivated for the last more than 30 years and the defendants had never been in possession thereof and that in the jamabandi containing khasra No. 121 the defendants had wrongly got their names entered as owners thereof though they had no right or title therein. A plea was also taken that he had become the owner of the property, in question, by adverse possession. Since the defendants wanted to take forcible possession thereof, hence the present suit for a declaration to the effect that he was in possession of the nauhra, with consequential relief of the permanent injunction restraining the defendants from interfering with his possession. The defendants contested the suit inter alia on the ground that the property, in dispute, formed part of khasra No. 121 measuring 1 kanal 16 marlas and that they were the owners in possession of the same. The trial Court found that the plaintiff was not the owner of the suit property, as alleged. He was only in possession of a part thereof. It was also found that the defendants were the owners of the suit property. In view of these findings, his suit was dismissed. In appeal, filed on his behalf, the only question debated was whether he was entitled to retain possession of portion of the property, in dispute, even though the defendants may be the owners thereof. It was argued on behalf of the defendants that the plaintiff being a trespasser was not entitled to the relief of injunction as held by the trial Court. However, the learned Senior Subordinate Judge with enhanced appellate powers, relying upon the Supreme Court decision in Mohan Lal v. The State of Punjab, 1971 PLJ 338, decreed the plaintiff''s suit qua the relief of injunction on the ground that he had been proved to be in possession of a part of the property and, therefore, the defendants could not interfere with his possession thereon except in due course of law. Dissatisfied with the same, the defendants have filed this second appeal in this Court.

During the course of the arguments before us, it was not disputed by the learned counsel for the parties that no person is entitled to take law in his own hands and a person in unauthorised possession of the property can be dispossessed only in accordance with law and that, to the same effect is the law laid down in Mohan Lal''s case (supra), wherein it was observed,

``Under our jurisprudence even an unauthorised occupant can be evicted only in the manner authorised by law. This is the essence of the rule of law.''''

It was also not disputed before us that a perpetual injunction of the kind prayed for can be granted by the civil Court only under the later part of subSection (2) to Section 37.

That subsection provides that a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit: the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff. (emphasis supplied) Subject to the aforesaid provision, sub section (3) to Section 38 inter alia further provides that a perpetual injunction may be granted to the plaintiff when the defendant invades or threatens to invade the plaintiff''s right to, or enjoyment of, the property. Thus, from a reading of the abovesaid provisions, it is evident that a perpetual injunction can be granted by a decree whereby the defendant is perpetually restrained from the assertion of a right or from the commission of an act which would be contrary to the rights of plaintiff. In other words, there must be some overt act on the part of the defendant to invade or a threat to invade the plaintiff''s right or commission of an act on the part of the defendant which is contrary to the plaintiff''s rights. except insofar as the above contingencies, no perpetual injunction could be granted against the defendant under the Act. Such a decree is in the nature of a preventive relief which is granted at the discretion of the Court by injunction temporary or permanent as contemplated under Section 36 of the Act. That judicial discretion the Court has to exercise only when the plaintiff builds a good prima facie case and the merits of the case so suggest as otherwise an effective remedy is provided to meet such situations under Section 6 of the Act which provides that if any person is dispossessed, without his consent, of 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 filed within six months from the date of the dispossession. Therefore, it was not disputed that a person who is in possession of the immovable property when dispossessed therefrom without his consent otherwise than in due course of law would be entitled to the relief of possession thereof summarily. Thus, relief under Section 36 of the Act, which is of a preventive nature, can in a suitable case be withheld where under Section 6, the plaintiff can get back the possession as a matter of right if he is dispossessed forcibly.

Taking the case of the plaintiff who comes to the Court for the grant of the declaration of ownership on the basis of his title to the property (other than the possessory one) and he fails to prove the same at the trial, then, his suit is ordinarily liable to be dismissed for injunction also, being the consequential relief, because he has come to the Court with the specific plea of his title which he had failed to prove at the trial. But in a given case if it was further found that the defendant too had no better title than the plaintiff in the suit property and the former was interfering with the rights of the latter illegally, in that situation, the plaintiff will be entitled to the relief of permanent injunction on the basis of his possession alone. In M.K. Setty v. M.V.L. Rao, AIR 1972 Supreme Court 2299, both the parties failed to prove their ownership over the suit property though the plaintiff had succeeded in proving his possession thereof. In that situation, it was observed by the Supreme Court in paragraph 5 of the judgment that the plaintiff can, on the strength of his possession, resist interference from persons who have no better title than himself to the suit property. Once it is accepted, then his possession has to be protected as against interference by someone who is not proved to have a better title than himself to the suit property. It was on that basis that the plaintiff''s suit in respect of the second relief, i.e., for the grant of the permanent injunction restraining the defendant from unlawfully and forcibly entering upon the suit land was decreed whereas his suit for the first relief, i.e., for the declaration that he was the absolute owner of the suit property being in its possession, was dismissed by the Supreme Court.

In these circumstances, the answer to the question would be that in case the plaintiff seeks the relief of permanent injunction against the defendant who is held to be the true owner, the same could be granted only if it could be proved by the plaintiff that there was some over tact or threat of any kind or commission of an act contrary to the plaintiff''s rights on the part of the defendant to illegally or forcibly dispossess him. In the absence of any such plea and its proof at the trial and a finding thereto, no such relief would be granted to the plaintiff. It is also made clear 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 defendant.

Now adverting to the facts of the present appeal, it may be recapitulated that the plaintiff came to the Court for the grant of the declaration to the effect that he was the owner in possession of the nauhra, in dispute. He failed to prove his ownership thereto in both the Courts below. As regards his possession, only on a small part of the suit property he was found to be in possession. There was neither any issue nor any finding that the defendants invaded or threatened to invade the plaintiff''s rights and, thus, tried to dispossess him forcibly. In the absence of any such finding the plaintiff was not entitled to the relief of permanent injunction; particularly when he failed to get the relief of declaration. The approach of the lower appellate Court in this behalf was wrong and illegal.

As a result of the above discussion, this appeal succeeds and is allowed. The judgment and decree of the lower appellate Court are set aside and those of the trial Court dismissing the plaintiff''s suit are restored with costs.