Vengan Poosari and Another vs Chinnu alias Patchamuthu

Subrahmania Aiyar, J.—This is not a suit for the establishment of the first plaintiff''s right to the office of Poojari. The claim herein is distinctly

limited to a building called Semmuniswamy temple situated within the boundaries set forth in the plaint and certain articles contained therein. The

defendant inter alia contended that the property was not in the plaintiff''s possession but in that of the defendant and it was with reference to this

contention that the 4th issue was framed, viz., "" Whether plaintiffs are in possession of the plaint temple and the room and articles mentioned in

plaint item No. 2 ''I Can they sue for mere injunction.

While finding upon the evidence that the plaintiffs had been prevented from having access to the place from 1895 and that the place was locked

up by the defendant and continued so ever since, the District Munsif was of opinion that as prior thereto pooja had been performed by the 2nd

plaintiff, possession should be presumed to be still with the plaintiffs. But the District Judge took a different view and 1 take the effect of his finding

to be that the plaintiffs are out of possession and that the defendant is in possession. Indeed it being admitted that from a time at least 4 years

before the plaint the plaintiffs had been prevented from having access to the temple and that the defendant has had it under his lock and key ever

since, it is not easy to see how any other conclusion can be arrived at. It would follow from some of the allegations in the plaint, that the case of the

1st plaintiff is that he is exclusively entitled to the buildings, etc. Assuming that his right is not larger than that of Mallakkal, his alleged adoptive

mother, it is clear from para. 6 of Exhibit E, the judgment of the District Court in the litigation of 1881--1382, that he and the defendant are entitled

to joint possession of the temple etc.

The question therefore is whether a party in the position of the plaintiff can sue for a perpetual injunction.

The observations advisedly made by Handley and Weir, 33., in Kanakambai v. Muttu ILR 13 M. 445 cited, for the respondent, are clearly

against such a suit. (See also Abdulkadar v. Mahomed ILR 15 M. 15. Many of the English authorities which would throw light on questions like

the present were reviewed and fully examined by Kindersley, Y.C. in Lowndes v. Bettle 33 L.J. 451. The result of the authorities as briefly

expressed in Kerr on Injunctions (3rd Edition, page 111) is that """"Where a plaintiff is out of possession, the court will refuse to interfere by granting

an injunction unless there be fraud or collusion or unless the acts perpetrated or threatened to be perpetrated are so injurious as to tend to the

destruction of the estate."" It is scarcely necessary to say that the refusal on the part of courts of Equity to interfere by way of injunction in such

cases is on the ground that the plaintiff, having an adequate remedy at law must pursue it. It must be added that, even in the exceptional cases

mentioned in the passage just quoted, the plaintiff must satisfy the court that there is an action pending at law between him and the defendant which

will try the right as between them. (Kerr on Injunctions, p. 111.) Further even where there is no question of ouster, a mandatory injunction will not

issue against a trespasser whose act is complete. Thus in Deere v. Guest 1 Cr. 516 where the defendants had completed the construction of a

railway on the plaintiff''s land before suit and claimed only a right of way, Lord Cottenham dismissed the bill for an injunction observing, ""The thing

complained of has been done; the tram road has, with the leave of the tenant in possession, been completed and the court is asked by the bill to

restrain the defendants, who, having finished the undertaking, are now in the daily use and occupation of it, from continuing so to use it and from

interrupting the servants and workmen of the plaintiffs in their attempt to destroy it; in other words, the court is virtually asked to eject the

defendants and authorize the plaintiffs themselves to take possession of the tramroad. The case originally may have been a case of waste

occasioned by the cutting of the tramroad and the laying of the iron rails over the plaintiff''s land; but what is now claimed by the defendants is

simply a right of way and if they are not entitled to that right they are mere trespassers and the plaintiffs have their proper legal remedy against them

as such Ibid 522. In Moreland v. Richardson 22 Beav. 596 Sir John Romilly, M.R., expressed his concurrence with the view laid down in Deere

v. Guest 1 Myl. 516 and observed that no injunction would be granted if the trespass were complete and perfect, however clear the original right

might be. No doubt in Goodson v. Richardson L.R. 9 Ch. Ap. 221 Lord Selbourne and Lord Justice James, apparently attach to the facts in

Deere v. Guest 1 Myl. 516 an effect somewhat different from that attributed to them by Lord Tottenham, as they both thought that the possession

was with the defendant Guest, bat the reasons assigned by them for considering that the injunction was rightly refused by Lord Cottenham go only

to support the view of the law as stated in the passage quoted from there; for, according to the judgments of those learned Judges no bill for ma

injunction would lie against a defendant in possession in the absence of any impediment to the institution of an action of ejectment or any equitable

circumstances which would induce Chancery to assume jurisdiction. I have only to add that to allow a plaintiff in this country who is entitled to ask

for possession to ask for an injunction only instead, would be to enable him to evade the pro. visions of the law as to the proper tribunal to try the

right and, as to the court fees payable in suits for possession. The opinion expressed in Kanakasabai v. Muttu ILR 13 M. 445 seems, therefore, to

be correct as a general rule and as there is no question in the present instance of fraud, irreparable damage, continuing trespass or other equitable

grounds warranting the issue of an injunction and as the case is clearly one where the plaintiffs ought to sue for such possession as they are entitled

to, it is not a proper case for the grant of the injunction sought. On these grounds, I come to the conclusion that the appellate decree of the lower

appellate Court dismissing the plaintiffs suit should be sustained and I would dismiss this appeal with costs.