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2002 DIGILAW 277 (ALL)

KISHAN LAL v. RADHEY SHYAM

2002-02-14

B.K.RATHI

body2002
B. K. RATHI, J. ( 1 ) THE appellant filed a suit for injunction for restraining the respondents from dispossessing him from the disputed premises otherwise than by due process of law. The premises in disputed is first floor portion consisting of two kotharis, latrine etc. of house No. 338 situated at Boora Bazar, Deputy Ganj, Bulandshahr. The appellant claimed that he is tenant of the same since last about 30 years at the rate of Rs. 10. 00 per month. ( 2 ) THE respondents contested the suit and alleged that the appellant is trespasser. Both the Courts below have held that the appellant is trespasser and he is not the tenant of the premises in dispute; that he is illegal occupant. Therefore, he is not entitled to the relief of injunction. Aggrieved by it, the present appeal has been preferred. ( 3 ) I have heard Sri B. D. Mandhyan, learned counsel for the appellant and Sri Syed Mahmood, learned counsel for respondents 1 to 6. ( 4 ) IT is contended by the learned counsel for the appellant that he is in possession of disputed premises since last more than 30 years; that in the sale deed, it has been mentioned that he is in possession of the disputed portion; that the rent receipts have also been issued to him by Sri Suresh Chandra Manglik. ( 5 ) IN this case, the respondents purchased 3/4th share of the premises from Amichand. 1/4th share of the premises was sold by Sri Suresh Chandra Manglik son of Amichand in favour of respondents 8 and 9. In that sale deed, Suresh Chandra Manglik has mentioned that the appellant is in possession of the disputed premises and also issued rent receipts in his favour. However, there was no rent receipt issued by Amichand in favour of the appellant nor in the sale deed executed in favour of the contesting respondents, it has been mentioned that the appellant was in possession of the disputed portion. Therefore, the Courts below held that there is collusion between appellant and Suresh Chandra Manglik. ( 6 ) SRI B. D. Mandhyan, learned counsel for the appellant has argued that even if the appellant is in possession without any right, he cannot be thrown out by force as he is in settled possession of the premises. Therefore, the Courts below held that there is collusion between appellant and Suresh Chandra Manglik. ( 6 ) SRI B. D. Mandhyan, learned counsel for the appellant has argued that even if the appellant is in possession without any right, he cannot be thrown out by force as he is in settled possession of the premises. Therefore, the injunction that he may not be dispossessed otherwise than in due process of law should have been issued. Learned counsel in support of the argument has referred to the following decisions : ( 7 ) THE first case is Ram Rattan v. State of U. P. , AIR 1977 SC 619 . It was observed that"a true owner the every right to dispossess or throw out a trespasser, while the trespasser is in the act or process of trespassing, and has not accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law". ( 8 ) ON the basis of this authority, it has been argued that the trespasser can be thrown out by force only when he is in process of trespassing and not thereafter if his possession is settled and he accomplished his possession. ( 9 ) THE other case referred to is Krishna Ram Mahale v. Mrs. Shobha Venkat Rao, AIR 1989 SC 2097 . In this case, it was observed that in India persons are not permitted to take forcible possession, they must obtain such possession as they are entitled to through a Court. ( 10 ) THE next case referred to the Full Bench decision of this Court in Yar Muhammad v. Lakshmi Das, AIR 1959 All 1 . In this case, it was observed that the possession is prima facie evidence of title and if the person who is in possession is dispossessed he was right to claim back possession from the person dispossessing him. It was further observed that"law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a Court. It was further observed that"law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a Court. No person can be allowed to become a Judge in his own cause". ( 11 ) ON the basis of these authorities, it has been argued that as the appellant is in settled possession, he is entitled to remain in possession unless evicted by undue process of law and cannot be evicted by force; that therefore, on admitted fact the Courts below have erred in law in not issuing injunction. ( 12 ) ON behalf of Sri Syed. Mahmmod, it has been argued that in no case, it has been laid down that an injunction can be issued in favour of trespasser against the true owner. On the other hand, learned counsel has referred to the Division Bench decision of this Court in Municipal Board v. Abdul Hammed, 1981 All LJ 376. It was held that "if the plaintiff fails to establish his legal right to the property or his legal right to continue in possession, he cannot be granted perpetual injunction against the owner or the manager of the property. ( 13 ) IN view of this decision, the Courts below have rightly refused the order of injunction in favour of the appellant. ( 14 ) NO substantial question of law arise for decision in this appeal. The appeal is without merit and is hereby dismissed. Appeal dismissed.