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1995 DIGILAW 813 (RAJ)

Gurubachan Singh v. Premlata

1995-09-05

MOHINI KAPUR

body1995
Honble KAPUR, J. – The plaintiff filed a suit for grant of permanent injunction and alongwith the suit he has also filed an application for grant of temporary injunction which was dismissed by the trial court namely the Additional Munsif and Judicial Magistrate, Ajmer (West) by his order dated 12.8.1987. He has preferred an appeal against this order which was dismissed by the Additional District Judge No. 2, Ajmer by order dated 17th August, 1993. Against the concurrent findings of both the courts below the petitioner has filed this revision petition. According to him the courts below have failed to exercise the jurisdiction vested in them and on this ground, the revision can be entertained before this Court and relief can be granted. (2) The facts in brief are that the petitioner purchased a portion of the property belonging to Ram Niwas in the year 1969 and after some time he constructed a room on this plot. Towards the south of this property there was open plot of Ram Niwas and the petitioner started using this land for storing firewood etc. Subsequently, in the years 1980 Ram Niwas sold the remaining land to the four non-petitioners. The petitioner filed a suit in the year 1986 claiming protection from dispossession without due process of law on the ground of long possession. He also pleaded that Ram Niwas treated him as a tenant in this open land. Both the courts below have considered the material and arrived at the conclusion that under Section 41 B of the Specific Relief Act, injunction cannot be granted restraining a person from taking legal proceedings and that a trespasser cannot be given an in- junction in his favour against the true owner of the property. (3) I have heard the learned counsel for the parties. (4) The learned counsel for the petitioner has contended that he is in possession over the land for a long period and he cannot be dispossessed except by due process of law and for this purpose the relief of temporary injunction should be granted during the pendency of the suit. According to him, his long possession is sufficient to make out a prima facie case in his favour. He has placed reliance on M/s. Chandra & Com. According to him, his long possession is sufficient to make out a prima facie case in his favour. He has placed reliance on M/s. Chandra & Com. vs. State of Rajasthan (1), wherein it was held that a person in possession of public premises cannot be dispossessed by State Officers without due process of law. The government should first initiate proceedings as provided in Public Premises (Eviction of Unauthorised Occupants) Act, 1964 (Rajasthan). In M/s. Wire Netting Stores vs. Delhi Development Authority (2) it was held that the unauthorised occupants can be evicted by following procedure of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958 as an opportunity of showing cause against the proposed eviction was not given. In both these cases, relief was granted in writ petitions. Relying on T.N. Indrani Devi vs. Municipal Board Imphal (3) it is contended that while considering whether the plaintiff has prima facie case for grant of temporary injunction it only means whether there is serious question to be tried and where there is a probability of success if the allegations of fact made by the plaintiff are proved, then injunction should be granted.. (5) The learned counsel for the non-petitioners has contended that a trespasser cannot be granted eqitable relief as against the real owner. He is a wrong doer and should not be allowed premium over it. According to him, grant of injunction is an equitable as well as discretionary relief and when the courts below have refused to grant temporary injunction this Court should not interfere in revi- sion petition to grant such relief. In K.V. Narayan vs. S. Sharana Gowda and another (4) it has been held that a tres-passer in possession is not entitled to injunction against a true owner. Quoting Nelsons Law of Injunctions, Sectond Edition, page 157 it has been stated : "Trespasser cannot seek injunction against State to protect his posse- ssion. Trespasser has no equities in his favour nor is the owner of the property trespassed under any legal obligation. An owner has therefore, every right to enter upon his property and restrain the trespasser from perpetuating his illegal occupation of the property. Trespasser has no equities in his favour nor is the owner of the property trespassed under any legal obligation. An owner has therefore, every right to enter upon his property and restrain the trespasser from perpetuating his illegal occupation of the property. It is not necessary for him to take recourse to legal proceedings in order to vindicate his rights of ownership and possession in respect of his property which has been taken into possession by another without any right or title......a person in unlawful possession is not entitled to be protected against the lawful owner by an order of injunction direc- ted against him." (6). In M. Kallappa Setty vs. M.V. Lakshminarayana Rao (5) it has been observed that the plaintiff can on the strength of his possession, resist interference from a person who has no better title than him in the suit property. The inference from this principle is that a plaintiff in unlawful possession cannot be protected by grant of equitable relief of injunction against true owner. In Nair Service Society Ltd. vs. K.C. Alexander and others. (6) it has been held that the plaintiff can maintain a possessory suit under the provisions of Specific Relief Act in which title would be immaterial or against a person who has no better title and possessory right will not be available as against the true owner of the property. (7). In the latest decision of the Supreme Court in Premji Ratansey Shah and others vs. Union of India and Ors. (7) it has been stated that grant of injunction is a discretionary and equitable relief and no injunction can be issued in favour of a trespasser or a person who gained unlawful possession as against the true owner. It was observed : "It is equally settled law that injunction would not be issued against the true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who had no interest in the property. Even assuming that they had any possession, their possession was wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Even assuming that they had any possession, their possession was wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner." This principle has laid down at the time of final decision of the suit but where the relief claimed cannot be granted at the time of deciding the matter at the final stage then the same relief cannot be granted by way of temporary relief. (Cotton Corporation of India Ltd. vs. United Industrial Bank Ltd. & Ors. (8). (8). On the basis of the principle laid down in the cases cited above it can be said that there is no specific procedure laid down in the various Acts for purposes of evicting unauthorised occupants from the Public premises and they cannot be dispossessed without following the procedure but the same principle cannot be made applicable to disputes not covered by the Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 for claiming the equitable relief of a temporary injunction. It is to be shown that the plaintiff cannot be granted the relief by way of a permanent measure. A wrong doer cannot be assisted by the Court in continuance of the wrong by means of the grant of equitable relief. A trespasser may be entitled to claim some relief against a third party not having a better title than him but the same cannot be sought against a true owner. (9). Both the courts below have discussed the matter about the grant of tem- porary injunction and the question of interfering with the orders does not arise, even on an examination of the matter by me. In the result this revision petition has no force and is, dismissed. Any observation made in this order about the rights of the parties will not affect the decision of the learned trial court.