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2000 DIGILAW 437 (PNJ)

Jiya Lal v. Muni Lal

2000-04-25

M.L.SINGHAL

body2000
JUDGMENT M.L. Singhal, J. - Jiyal Lal filed suit for permanent injunction against Muni Lal, Kewal Krishan Pardhan, Harbans Singh and Arya Samaj Mandir/School, Budhlada through Dwarka Dass restraining the latter from interfering with his ownership and possession of house/site as described in the head note of the plaint situated in the abadi of Ward No. 4 within the municipal limits of which he has been in possession for the last more than 15 years as also from dispossessing him from the house/site shown in red lines in the plan attached to the plaint and also from demolishing the construction of three rooms/huts lying constructed there. It was alleged in the plaint that he is owner in possession of the site for the last more than 15 years where he has constructed three rooms/huts and is residing with his family. He has obtained an electric connection from Punjab State Electricity Board. He has also built up a toilet there. He has planted trees and flowers. It was alleged in the plaint that defendants are bent upon amalgamating the house/site in suit into the school premises as also to demolish rooms/huts constructed by him there. Alongwith the plaint, they moved an application for the grant of temporary injunction to the desired effect. 2. Defendants resisted the prayer of the plaintiff urging that one Sunder Lal son of Karta Mal had donated portion ABCD shown in the site plan Annexure A to Arya Samaj Mandir/School by way of registered Hibanama dated 12.5.1930. At present, Krishna Lal legal heir of Sunder Lal donated the suit land, which is a piece of land marked as AEFG in the site plan shown in Annexure A to the Arya Samaj Mandir/School. Pursuant to Hibanama dated 21.8.1997, Arya Samaj Mandir/School (defendant No. 4) came in possession of land shown by letters AEFG. Earlier with the consent of the legal representative of Sunder Lal, Arya Samaj Mandir/School had constructed a toilet which is shown as Mark-L in the portion of the land with the laying of pacca toilets for school children opening through wall A-C of the school was closed. General public used to visit that place to worship peepal tree standing there, so respondent No. 4 had built up a platform under the tree since long. It was denied that there is any room/hut in the said portion of the suit property. General public used to visit that place to worship peepal tree standing there, so respondent No. 4 had built up a platform under the tree since long. It was denied that there is any room/hut in the said portion of the suit property. There is no access to the said place. It was urged that the plaintiff after constructing huts towards wall E to A of the site plan Annexure A filed this suit. Towards north east side of the portion AEFG falls the land of Darshan Kumar, Ashok Kumar and Amritpal consisting of khasra No. 326/2. Kacha huts were constructed by said Darshan Kumar etc. for tethering their cattle and for providing shelter to the cattle. It was further urged that this suit was filed by the plaintiff with the intention to grab site AEFG. 3. Vide order dated 31.3.1998, Addl. Civil Judge, Senior Division, Mansa allowed temporary injunction to the plaintiff restraining the defendants from interfering in the possession of the plaintiff in respect of the disputed property otherwise than in due course of law. 4. Aggrieved from the order dated 31.3.1998 passed by Addl. Civil Judge, Senior Division, Mansa, Muni Lal etc. went in appeal, which was allowed by Additional District Judge, Mansa vide order dated 7.1.1999 and he vacated the temporary injunction granted in favour of the plaintiff by Additional Civil Judge, Senior Division, Mansa. 5. Aggrieved from this order dated 7.1.1999 of Additional District Judge, Mansa, Jiya Lal has come up in revision to this Court. 6. I have heard both the sides and have gone through the record. Learned Counsel for the petitioner submitted that petitioner is in possession and he is entitled to protect his possession even if he is not shown to be owner thereof. It was submitted that he has three rooms/huts constructed there and he is residing with his family there and he has obtained an electric connection from Punjab State Electricity Board. He has constructed toilet and has planted trees and flowers. It was submitted that these are acts of possession and not mere acts of user. He is entitled to retain possession till he is dispossessed in due course of law. He has constructed toilet and has planted trees and flowers. It was submitted that these are acts of possession and not mere acts of user. He is entitled to retain possession till he is dispossessed in due course of law. It was submitted that in our system of jurisprudence even a trespasser and an unauthorised occupant is entitled to protect his possession against unwarranted onslaughts against his possession because that is the essence of the rule of law. It was submitted that a person in possession need not show his title and a person in possession in entitled to protect his possession even against a true owner. In support of his submission, he drew my attention to Walter Louis Franklin (dead) through L.Rs. v. George Singh (dead) through LRs., 1997(2) Recent Civil Reports 41 and Govindbhai Ramjibhai Chauhan v. Gukul Chand Juthalal Agarwal and another, 1997(1) Civil Court Cases 7. In 1997(2) RCR 41 (supra), Honble Supreme Court observed that "a person in possession of immovable property is entitled to injunction even against the true owner. The true owner is entitled to seek possession only by dispossessing such person in accordance with law by filing a suit for possession." This observation was made Honble Supreme Court on the following facts : Appellant filed suit for perpetual injunction to restrain the respondent from interfering with his possession and enjoyment of 10 feet/65 feet land towards east of his house No. 15/45 situate in Kanpur. According to him, he purchased the plot No. 15/45 from the Church under a sale deed in the year 1937 and ever since has been in possession and enjoyment of his property. He had enclosed the disputed property by putting up a wall using it for poultry farming and during summer for sleeping in the open area. It was also his case that he had paid najrana to the Church and became its owner. The plea of payment of najrana and of becoming owner was given up. The respondent pleaded that the respondents predecessor-in-title by name S.W. Lawrence had purchased plot No 15/44 from the church in 1965, and as owner of the property, was in enjoyment of the property. He later on claimed to have purchased plot No. 15/43. He contended that no perpetual injunction could be granted against him; he being a true owner. The respondent pleaded that the respondents predecessor-in-title by name S.W. Lawrence had purchased plot No 15/44 from the church in 1965, and as owner of the property, was in enjoyment of the property. He later on claimed to have purchased plot No. 15/43. He contended that no perpetual injunction could be granted against him; he being a true owner. Both the trial Court and the appellate Court found that the appellant was in possession of the disputed property and in enjoyment thereof, they also held that he perfected title by prescription. The High Court has set aside the judgments and decrees of the Courts below on the finding that the appellant had not proved his adverse possession as against the respondent. Mere continuous possession does not constitute adverse possession. Therefore, the courts below are not right in finding that he was in adverse possession. There was clear recital which is an admission which binds the respondent that the appellant was in possession of the disputed property. Though he had purchased it from the Church, he could not take its possession from the appellant. It was specifically pleaded that it would be open to the respondent to obtain possession from the appellant, if he could. Admittedly, the respondent had not filed any suit for possession of the property. On the other hand, the appellant filed the suit for perpetual injunction to restrain the respondent from interfering with his possession of the property. In view of the admission in the title deed obtained by the respondent himself and a concurrent finding recorded by the courts below that the appellant has been in possession, the injunction shall follow. Under these circumstances, trial Court and appellate Court had rightly granted the perpetual injunction. The High Court is, therefore, not right in reversing that finding. 7. It was further submitted that temporary injunction should have been granted to the petitioner because the non-grant of temporary injunction will work havoc against him and he will be put to the risk of being ousted forcibly at the hands of the defendant/respondents, who might take the law into their own hands. Learned counsel for the respondents, on the other hand, submitted that petitioner is out and out a trespasser. Injunctions belong to the domain of equity. There is no equity in favour of a trespasser. Learned counsel for the respondents, on the other hand, submitted that petitioner is out and out a trespasser. Injunctions belong to the domain of equity. There is no equity in favour of a trespasser. If injunction is granted in favour of a trespasser that would tantamount to perpetuating a wrong. Arya Samaj Mandir/School lays claim to site ABCD on account of registered gift deed dated 12.5.1930 alleged to have been executed in its favour by one Sunder Lal son of Karta Mal. At present, school building is situated there. Arya Samaj Mandir/School lays claim to site AEFG on account of gift deed said to have been executed in favour of Arya Samaj Mandir/School by Krishan Lal LR of Sunder Lal on 21.8.1997 where the Arya Samaj Mandir/School is setting up hibanamas for laying claim to portion ABCD and AEFG, the plaintiff is not laying any such claim. Plaintiff is merely coming on the basis of possession. He has stated that he has constructed a toilet. Besides he has grown plants and trees. These acts are not acts of possession but are acts of user. Possession of a vacant site goes with the owner. It was held in Gurcharan Singh v. District/Chief Agricultural Officer, Jalandhar, 1997(1) Civil Court Cases 201 that "a person having no interest or right in the property or his possession not lawful, is not entitled to injunction." In Premji Ratansay Shah and others v. Union of India and others, JT 1994(6) S.C. 585 it was held by the Honble Supreme Court that "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 have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or against one who gained unlawful possession as against the true owner. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or against one who gained unlawful possession as against the true owner. Pretext of dispute of identity of the land should not be an excuse of claim to injunction against true owner." In Tamil Nadu Housing Board v. A. Viswam (dead) by LRs., 1996(8) Supreme Court Cases 259 the Honble Supreme Court observed that "a trespasser cannot claim injunction against the owner." In Sri Hanumanthappa v. Sri Muninaryanappa, 1997(1) CCC 90 the Honble Supreme Court observed that "no injunction can be issued against the lawful owner of the property." In Smt. Gur Dai v. Arjan Singh (died) through LRs., 1997(1) PLR 666 it was held that "no injunction can be claimed against the owner." In M/s. G.M. Modi Hospital and Research Centre Medical Science v. Sh. Shankar Singh Bhandari and others, AIR 1996 Delhi 1 it was held that "while considering the question of grant of injunction the Courts are bound to come to some tentative conclusion on facts and it cannot be said that they would be decided at the time of the trial of the case. If that is the position in every case a person in possession of a property on the date of the suit would be entitled to injunction ex debito justitiae on the basis of his possession whatever the nature of the possession. It is fundamental that if a person asserts that he can be dispossessed only through Court of law he must show that he has a right under law to remain in possession till his rights are determined by Court of law. Grant of an injunction is a matter of discretion and in its exercise the Court has to satisfy itself whether the petitioners have a triable case. Before invoking the jurisdiction of the court to seek temporary injunction the petitioners are bound to show that they have a legal right and that there was an invasion of that right. It is a basic principle of law that right to an interlocutory injunction is dependent on the enforcement of a substantial right and they cannot be considered in isolation." Petitioner (respondent) is claiming injunction without any semblance of right or title to the property. It is a basic principle of law that right to an interlocutory injunction is dependent on the enforcement of a substantial right and they cannot be considered in isolation." Petitioner (respondent) is claiming injunction without any semblance of right or title to the property. Should injunction be granted to him even if he is exercising the certain rights on the property, which fall short of the attributes of possession but which are mere acts of user. 8. Faced with this position, learned counsel for the petitioner submitted that where is the proof that the Arya Samaj Mandir/School is owner of these properties because of hibanamas and till Arya Samaj Mandir/School is proved to be the owner in possession of these properties by proving these hibanamas, there can be no opposition to the petitioners prayer for the grant of injunction. Suffice it to say, hibanamas set up will have to be taken up as correct at this stage. Even otherwise, plaintiff is required to stand on his own legs. It is for him to prove that he has prima facie case in his favour for the grant of temporary injunction and that balance of convenience is also in his favour and further if no injunction is granted to him, he will suffer an irreparable loss. These are three requirements, which govern the grant of temporary injunction. If he fails to satisfy any of these requirements, his claim to injunction will fall to the ground. If temporary injunction is granted to a trespasser that would mean driving the true owner to go to the Civil Court and ask for possession against the wrong-doer. Injunction is granted to enforce same right against one, who is bound in law to respect that right. In this case, learned counsel for the respondents submitted that there is no right inhering in the plaintiff which they are required to respect. Grant of injunction or non-grant of injunction is discretionary with the Court. Learned Appellate Court has exercised the discretion vesting in it in accordance with the well settled principles governing the grant of temporary injunction in such matters. For the reasons recorded above, this revision fails and is dismissed. No order as to costs. Revision dismissed.