Tej Kaur (Deceased) through her L.Rs. and Others vs Baldev Parshad and Others

Rakesh Kumar Jain, J.—This is defendants'' appeal in which the substantial question of law involved is as to ""whether prohibitory injunction

can be granted to a person who himself is not in actual physical possession"".

In brief, the plaintiffs filed a suit for declaration that plaintiff No. 1 (Baldev Parshad) is the owner in possession of land measuring 17 Kanals 01

Marla comprised in Rectangle No. 28 Killa Nos.l6(8-0), 17/1(1-0), 24/3(0-14), 25(7-7), Khatauni No. 21, Khewat No.l, situated in village

Kamagar alias Machhiwara, Tehsil and District Ferozepur and plaintiff No. 2 (Ajay Kumar) is the mortgagee with possession under plaintiff No.l

and that the sale deed executed by defendant No. 5 in favour of defendant Nos. l to 4 on 05.06.1981 in respect of the land in dispute is ineffective

on the rights of the plaintiffs, is subject to the right of adjustment at the time of partition of the suit land and a consequential relief was sought to

restrain defendant Nos. l to 5 from interfering in their possession. It was alleged by the plaintiffs that the land in dispute is jointly owned by plaintiff

No.l and defendant No. 5. Plaintiff No.l is in established possession as a co-sharer since long who had mortgaged it with possession with Tara

Singh S/o Sham Singh vide mortgage deed dated 08.03.1961 and Tara Singh had transferred his mortgagee rights to plaintiff No. 2 who is now in

possession of the suit land as mortgagee of plaintiff No.l. On 05.06.1981, defendant No. 5 executed a sale deed in respect of the suit land in

favour of defendant Nos. l to 4 though he had no right to do so as he had already sold more than his share in the joint land. Thus, the said sale is

void, illegal, ineffective on the rights of the plaintiffs and subject to the right of adjustment at the time of partition and the defendants have no right to

interfere with possession of plaintiff No. 2 over the suit land as mortgagee of plaintiff No.l. Defendant Nos. l to 4 and defendant No.5 filed their

separate written statements. Defendant Nos. l to 4 had alleged that plaintiff No.l along with his other children were the owners of 5000 Kanals of

land in village Kamagar. He had transferred the land to various persons by way of sale, gift and mortgage etc., which has been reproduced in detail

in the written statement, and regarding possession it was alleged that plaintiff No. 2 is related to plaintiff No.l who has never been in possession of

the suit land as a mortgagee. They claimed their possession over the suit land. In the written statement filed by defendant No. 5, the various

transfers made by plaintiff No.l were mentioned and regarding possession it was averred that neither plaintiff No.l nor plaintiff No. 2 is in

possession of the suit land. Plaintiffs filed replication to the written statement filed by defendant No. 5. On the pleadings of the parties, following

issues were framed: -

Whether the plaintiff No. 1 is the owner of the suit land? OPP

Whether the impugned sale by defendant No. 5 in favour of defendants No.l to 4 is void being in excess of the share of the vendor in joint

property as well as being for specific khasra numbers? OPP

Whether the said sale is subject to the right of the adjustment at the time of the partition of the suit property along with other lands of the various

co-sharers of the vendor? OPP

Relief.

The learned Trial Court, vide its judgment and decree dated 06.10.1983, decreed the suit of the plaintiffs observing that ""on the basis of the

decision on various issues, the suit of the plaintiffs succeeds and is hereby decreed for a declaration that 17 kanals 01 Marla of land which is the

subject matter of this suit as well as transaction of sale dated 05.06.1981, would be subject to a final adjustment amongst various co-sharer at the

time of any future partition of the entire joint khata"". However, this judgment and decree was set aside in appeal on 15.04.1985 and the suit was

remanded for fresh trial after framing an additional issue to the effect that ""whether the plaintiffs are in possession of the suit land and are entitled to

the relief of injunction as prayed? OPP"". The parties led some more evidence after the framing of the additional issue. The learned Trial Court,

while deciding issues Nos. l and 2, had observed that ""the parties made a statement at the final stage to the effect that issue No. 2 may be treated

as redundant while issue No.l may be decided declaring plaintiff No.l and defendants No. 5 being co-sharers in the suit property along with the

other land in the joint kehwat. Hence, both these issues stands disposed of accordingly"". Insofar as the issue No. 3 is concerned, it was observed

that ""after the decision on issue No.l declaring plaintiff No. 1 and defendant No. 5 to be co-sharers in the suit property, it is a necessary corollary

that the land in question is subject to right of adjustment at the time of partition of property amongst various co-sharers. There was no contest

between the parties at the final stage at least on this point too. Hence, this issue stands decided accordingly in favour of the plaintiffs. It was the

additional issue which took prominence in this suit to find out as to who is in possession of the suit property for the purpose of injunction. Plaintiff

No.l had alleged plaintiff No. 2 is in possession of the suit property as a mortgagee, but at the same time it has come on record that plaintiff No.l

had mortgaged the suit property with Tara Singh vide mortgage deed Ex.P5 in respect of which a mutation (Ex.P3) was also sanctioned but it was

redeemed on 08.03.1967 which is reflected in the jamabandi. Thereafter, he sold the mortgagee rights of Tara Singh to plaintiff No. 2 vide sale

deed Ex.P6 on 29.07.1977 and since then Ajay Kumar (plaintiff No. 2) is in possession of the suit property as a mortgagee. In this regard, the

learned First Appellate Court has observed that ""consequently the said sale of mortgagee rights by Tara Singh in favour of Ajay Kumar seems to

be a paper transaction so far as the factum of actual possession of the land is concerned"". It was rather observed that as per Khasra Girdawari

Ex.P8, the possession on the suit property is of Parjinder Singh son of Tara Singh from Khariff 1977 to Rabi 1981 and in the subsequent copy of

jamabandi Ex.P9, similar entry has come in the record and in the year 1982 change of cultivation took place in favour of vendee/defendant No. 4

on 21.10.1982 subsequent to the filing of the present suit on 23.04.1982. The learned Trial Court did not take into account the entry in favour of

defendant Nos. 1 to 4 pursuant to the sale deed executed by defendant No. 5 which is reflected in the revenue record during the pendency of the

suit and had rather observed that ""as such I am of the considered view that neither the vendee defendants nor mortgagee Ajay Kumar plaintiff No.

2 were in actual possession of the suit property at the time of commencement of the suit"". ""Instead the cultivating possession of the land in suit was

with Parjinder Singh and Sukhdev Singh. But Ajay Kumar plaintiff No. 2 being the mortgagee of the suit property, the possession of Parjinder

Singh etc. is indeed under him though this fact is not indicated in the revenue record"". The learned Trial Court, thus, partly decreed the suit to the

effect that plaintiff No.l and defendant No. 5 are the co-sharers of the suit land which was held under the possession of Ajay Kumar plaintiff No. 2

as mortgagee through Parjinder Singh and Sukhdev Singh and the transaction of sale in favour of defendant Nos. l to 4 was made subject to final

adjustment amongst the various co-sharers at the time of final partition. It was also ordered that till then the defendants would be restrained

permanently from interfering in any manner in the said possession of Ajay Kumar plaintiff No. 2 through Parjinder Singh etc. except in due course

of law.

Aggrieved against the judgment and decree of the learned Trial Court, defendants Nos. l to 4 came up in appeal in which the learned First

Appellate Court had observed that ""the only point which required determination was as to whether the plaintiffs are in possession of the same"". The

learned First Appellate Court has categorically observed that ""in this context, the plaintiffs'' case is that Ajay Kumar mortgagee has been in

possession of the suit land. This fact is not established on the record because the revenue entries are otherwise"". It was also observed that ""it is

also a fact that Ajay Kumar resides at Delhi. So, khasra girdawari Ex.P8 establishes the possession of Parjinder Singh etc. on the suit property

from Khariff 1977 to Rabi 1981. The learned First Appellate Court observed that the defendants/appellants are not in possession of the suit

property and maintained the decree of the learned Trial Court.

Aggrieved against the judgment and decree of the Courts below, the defendants have filed this appeal which was admitted on 20.05.1986 and

execution of the decree was stayed.

In this appeal, the question of taw framed by learned counsel for the appellants is as to whether the learned Court below have committed a

serious error of law in granting injunction to plaintiff No. 2 though he himself is not found to be in actual physical possession nor he had pleaded in

the suit that he is in possession of the suit property through Parjinder Singh and Sukhdev Singh sons of Tara Singh. Plaintiff No.l had redeemed the

suit land and sold the mortgagee rights to plaintiff No. 2. In this manner, the possession of Parjinder Singh and Sukhdev Singh are of unauthorized

persons who have not come forward in the present suit to seek injunction against the defendants on the ground that they are interfering in their

possession, otherwise then in due course of law. Learned counsel for the appellant has relied upon various decision in the cases of Sri Thimmaiah

Vs. Shabira and Others, ; Ramji Rai and another v. Jagdish Mallah (Dead) through L.Rs. and Another, AIR 1996 SC 900; Sant Lal v. Johri Lal,

(2004-1) 136 P.L.R. 388 and Anathula Sudhakar v. P. Buchi Ready (Dead) by L.Rs. and Others, 2008 AIR SC 2033 to contend that in order to

claim decree for permanent injunction, the plaintiff has to establish that he is in possession.

In reply, learned counsel for the respondents has argued that the suit property is still joint between ''the parties and it has rightly been held by the

learned Courts below that the sale deed executed by defendant No. 5 in favour of the appellants shall be subject to final partition between the

parties. He has further submitted that plaintiff No. 1 '' has executed mortgage deed in favour of plaintiff No. 2 and as such, he is in possession

through Parjinder Singh and Sukhdev Singh sons of the earlier mortgagee in possession and since the defendants have not found to be in

possession by the Courts below despite the fact that they have claimed it on the basis of entry in Khasra Girdawari which has been effected during

the pendency of the suit, the learned Courts below have granted injunction in favour of plaintiff No. 2 restraining the defendants from interfering in

his peaceful possession through Parjinder Singh and Sukhdev Singh.

I have heard both the learned counsel for the parties and perused the available record.

The facts are not much in dispute inasmuch as the suit property is a joint property. Both the Courts below have only dealt with the additional

issue with regard to the permanent injunction which was to be proved by the plaintiffs. The learned Trial Court has observed that mortgage by

plaintiff No.l in favour of plaintiff No. 2 is only a paper transaction. The learned First Appellate Court has observed that plaintiff No. 2 is not in

possession as there is no revenue entry in his favour. The concurrent finding has been recorded that possession over the suit property is of

Parjinder Singh and Sukhdev Singh sons of Tara Singh who are neither plaintiffs before the Court nor mere is any pleading by plaintiff No. 2 that

he had handed over possession to those persons or they are in possession with his consent and disturbance of their possession would be deemed

to be the disturbance of possession of plaintiff No. 2. In the absence of any such pleading or the case set up by plaintiff No. 2 in his plaint, learned

Courts below have committed the serious error of law by granting injunction to plaintiff No. 2 who is not found to be in actual physical possession

of the property in dispute. In Sri Thimmaiah''s case (supra), the Supreme Court has held that in order to seek permanent injunction, the plaintiff has

to establish that he is in possession. In the case of Ramji Rai and Another (supra), the Supreme Court has held that if the plaintiff is not found to be

in possession in a suit for permanent injunction, the necessary orders which is to be passed by the Court is to dismiss the suit. In Sant Lal''s case

(supra), the plaintiff filed a suit for permanent injunction. They were proved to be owner but defendants were proved to be in possession on the

date of filing of suit. The plaintiffs were neither held entitled to a decree for permanent injunction nor to a decree for possession as neither they

pleaded nor proved that they have been dispossessed during the pendency of the suit. In Anathula Sudhakar''s case (supra), it was held by the

Supreme Court that in order to seek injunction, plaintiff has to establish that on the date of suit he was in lawful possession. It was also held mat in

the absence of pleadings, no amount of evidence or arguments can be looked into.

Thus, from the resume of the aforesaid discussion, I have found that the Courts below have committed a patent error of law in decreeing the

suit of plaintiff No. 2 for permanent injunction inspite of the fact that neither plaintiff No.l nor plaintiff No. 2 were in actual physical possession of

the suit property and the persons who were in actual physical possession have not applied to the Court for seeking injunction against the

defendants, therefore, the Courts below could not have decreed the suit of the plaintiffs for restraining the defendants from interfering in their

possession which is claimed by memo through someone else who is not a party before the Court. Thus, the substantial question of law framed in

the beginning of the judgment is answered in favour of the appellants and in view thereof, the present appeal is hereby allowed and the judgments

and decrees of the Courts below are hereby set aside accordingly.

No costs.