ORDER 2.7.2004 — Though this matter was listed for further orders on Misc. Case No.225 of 2004 filed by the appellant- petitioner for an interim order of injunction, with consent of parties, the same is taken up for final disposal. Heard Mr. Mohapatra, learned counsel for the appellant and Mr. Mukherjee, learned Senior Counsel on behalf of the respondents. The respondents have entered appearance by filing a caveat petition. The present appeal has been filed against the impugned under dated 13.5.2004 passed in I.A. No.150 of 2004 arising out of C.S. No.212 of 2004 pending in the Court of Civil Judge, Senior Divi¬sion, Bhubaneswar. By the said order the learned trial Court has rejected the application of the appellant-petitioner filed under Order 39, Rules 1 and 2 C.P.C. for an order of interim injunction during pendency of the suit. The appellant as plaintiff has filed a suit for declaration of right, title, interest and confirmation of possession and for permanent injunction against the respond¬ents. The appellant plaintiff’s case is that M/s. Konark Cement and Asbestos Ltd. was allotted a land measuring Ac. 20.20 deci¬mals in revenue plot No.69 appertaining to Khata No.612 in mouza Chandrasekharpur in Chandaka Industrial Estate, Bhubaneswar in the year 1981 followed by delivery of possession. Subsequently, the IDCO executed a lease deed for an area of Ac.17.15 decimals out of the said land allotted to the said Company. It is further contended that the appellant is an Educational Trust established by the said Company and after allotment of the land as aforesaid, the infrastructure consisting of pucca buildings have been raised over the land leased out by the IDCO. The appellant claims in the plaint that over and above the lease hold property in its posses¬sion the adjacent plot measuring more than Ac.3.00 acres is being used as a play ground for the Institution running over the lease hold property. The allegation made is that the IDCO attempted to demolish the boundary wall constructed around the play ground over which the appellant-Institution is in possession for which the appellant was compelled to file the suit. The allegation made is that the IDCO attempted to demolish the boundary wall constructed around the play ground over which the appellant-Institution is in possession for which the appellant was compelled to file the suit. Along with the plaint an application under Order 39, Rules 1 and 2, C.P.C. was filed by the appellant which was registered as I.A. No.185 of 2004 wherein it was prayed that the respondents should be in¬juncted from interfering with the peaceful possession of the plaintiff-appellant over the disputed property measuring Ac.3.05 decimals marked as Plot No.3. The appellant has filed this appeal against the order rejecting the prayer for interim injunction during the pendency of the suit. Misc. Case No.225 of 2004 has been filed by the appellant in this appeal praying for a similar order for injunction during pendency of the appeal. The respond¬ents have filed a counter affidavit to the said Misc.Case, inter alia, stating that the suit property was never leased out nor allotted to the appellant and IDCO has already allotted a portion of the said plot No.3 to the National Council Cement & Building Material vide allotment order dated 21.2.2004. Subsequently, the appellant by letter dated 17.3.2004 requested the IDCO to allot plot No.3 in their favour and enclosed a draft for Rs.5,000/-. The request of the appellant for allotment of plot No.3 was turned down by the IDCO on the ground that the balance part of plot No.3 has been allotted by way of public auction as per the decision of the Board and as such, the same cannot be given to the appellant and the draft for Rs.5000/- was returned to the appellant. It is further stated in the counter that the appellant is a rank tres¬passer over plot No.3 and when the appellant trespassed into the said plot and started construction of the boundary wall, the respondents went to pull down the construction raised by the petitioner for which the petitioner by making false averments and misrepresentation obtained a restraint order from the Executive Magistrate, Bhubaneswar against the respondents. Mr. Mohapatra, learned counsel for the appellant-petitioner submits that the disputed property was part and parcel of the property initially allotted to M/s. Konark Cement and Asbestos Ltd. and possession was delivered to the said Company and subse¬quently only Ac.17.15 decimals was leased out in favour of the said Company. Mr. Mohapatra, learned counsel for the appellant-petitioner submits that the disputed property was part and parcel of the property initially allotted to M/s. Konark Cement and Asbestos Ltd. and possession was delivered to the said Company and subse¬quently only Ac.17.15 decimals was leased out in favour of the said Company. He submits that in view of this fact, the plain¬tiff-appellant which is an Educational Trust established by the above-named Company has right under law and equity to get an order of injunction. Mr. Mukherjee, learned Senior Counsel appearing for the respondents submitted that the three conditions required to be satisfied for entertaining an application for interim injunc¬tion, i.e. a prima facie case, balance of convenience and irrepa¬rable loss is not at all made out by the appellant and as such the impugned order is not liable to be interfered with. In sup¬port of his contention, Mr. Mukherjee has placed reliance on a decision reported in 98(1985) CLT 464 (Naba Kishore Sahoo and another-v-East India Arms Company). In the above cited decision this Court while considering the scope and principles of granting an interim order of injunction under Order 39, Rules 1 and 2, C.P.C. reiterating the settled position of law has held that grant of interim injunction is a discretion of the Court and is an equita¬ble remedy and should be granted depending on the facts and circumstances of each case. It has been further held that unless all three conditions as stated above are fulfilled, no order of interim injunction can be passed in favour of a party seeking such relief. It is a settled position of law that no injunction can be granted against the true owner at the instance of a person in unlawful possession. Keeping the above position in view no illegality or error of law can be found from the impugned order. However, if the peculiar facts and circumstances of this case is taken into consideration this Court is bound to arrive at a different con¬clusion than what has been decided by the learned trial Court in the impugned order. To appreciate this peculiarity it is profitable to quote paragraph 9 of the counter affidavit filed by the respondent-defendants before this Court to Misc.Case No.225/2004 which is as follows : “9. To appreciate this peculiarity it is profitable to quote paragraph 9 of the counter affidavit filed by the respondent-defendants before this Court to Misc.Case No.225/2004 which is as follows : “9. The petitioner is a rank trespasser over plot No.3 and surreptitiously trespassed the land and started construction of a boundary wall over plot No.3.” From the above statement on oath made on behalf of the respondents it is an admitted fact that the appellant-petitioner is in possession over plot No.3 even though the respondent- IDCO might be the true owner of the same. In the case of Krishna Ram Mahale-v-Mrs. Sobha Venkat Rao ( AIR 1989 SC 2097 ) the Supreme Court being posed with a similar question held that it is a well settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. The Supreme Court has cited with approval the well known passage from the leading Privy Council case of Midna¬pur Zamindary Co. Ltd. -v- Naresh Narayan Roy (51 Indian Appeal 293) wherein it has been observed as follows : “In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court.” This proposition was also accepted in the case of Ram Tattan -v- State of Uttar Pradesh ( AIR 1977 SC 619 ) where it has been held that a true owner has every right to dispossess or throw out a trespasser while he is the act or process of trespassing but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowl¬edge of the true owner. In such circumstances, the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies under the law. The Supreme Court has thus held that possession of a trespasser in these circumstances can be protected by grant of an interim order of injunction during pendency of the lis even against the true owner till he is evicted in due process of law. The Supreme Court has thus held that possession of a trespasser in these circumstances can be protected by grant of an interim order of injunction during pendency of the lis even against the true owner till he is evicted in due process of law. Applying the above principles to the facts of this case, as already stated above, since the appellant is admittedly in pos¬session over plot No.3 which is disclosed from the statement made by the respondent in the counter affidavit, the respondent- IDCO even if held to be true owner of the suit land cannot forcibly evict the appellant and has to take recourse to law for evicting the appellant from the suit property. In this view of the matter, while setting aside the impugned order I direct that the respondents are injuncted from interfering with the possession of the appellant-plaintiff over the disputed land till the respondents evict the appellant from the said land in due process of law. The appeal is accordingly allowed. No costs. Appeal allowed.