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2011 DIGILAW 1051 (MP)

Surya Din v. Narayan Das

2011-09-06

A.K.SHRIVASTAVA

body2011
JUDGMENT 1. The plaintiff-appellant taking the aid of section 100 of CPC has preferred this second appeal against the judgment of reversal. The suit for permanent injunction was decreed in his favour and first appeal, which was filed by the defendant, the judgment of trial Court has been reversed. 2. No exhaustive statement of facts are required to be narrated for the purpose of disposal of this second appeal. Suffice it to say that suit for injunction has been filed by the plaintiff-appellant praying that agriculture land which he is possessing and the description whereof is mentioned in the plaint and which is the subject matter of the suit, in that land the defendant-respondent is trying to take possession. Hence, he filed suit for injunction. 3. Plaint averments were denied by the defendant in his written statement According to the defendant plaintiff is not in possession of the suit property rather he (defendant) is in possession of the same and, therefore, suit for injunction be dismissed. 4. The learned Trial Court framed the necessary issues and after recording the evidence, decreed the suit of plaintiff holding that he is in possession of the suit property. The defendant assailed the judgment and decree by filing first appeal before the appellate Court, which has been allowed by the impugned judgment and decree and the appellate Court had directed the plaintiff to deliver the possession of the suit property to the defendant. In this manner, this second appeal has been filed by the plaintiff. 5. This Court on 6.9.1995 admitted this appeal on the following substantial question of law: "Whether under the facts and in the circumstances of the case the first appellate Court was justified in ordering delivery of possession in favour of the respondents defendants in view of its findings that under the grab of the injunction the plaintiffs dispossessed the defendants, and as to whether the Court below was justified in passing such order in absence of any cross suit or any counter claim? 6. 6. Vehemently it is put forth by Shri V.S. Choudhary and Shri Ashutosh Tiwari learned counsel for the appellant that the learned first appellate Court erred in gross error of law in directing the plaintiff-appellant to deliver the possession of the suit property and the said decision cannot be given for the simple reason that neither the defendant filed any counter-claim or the cross-suit for seeking decree for the restoration of possession of the suit property and, therefore, passing of such type of order by learned first appellate Court is without jurisdiction. Hence, it has been prayed that this appeal be allowed and judgment and decree passed by the leraned first appellate Court be set aside and the judgment and decree passed by the learned Trial Court be restored. 7. Per contra, Shri Amit Nagpal, learned counsel appearing for defendant-respondent has argued in support the judgment and decree and submitted that during the pendency of suit, an application for issuance of temporary injunction was submitted by the plaintiff on the averment that he is in possession of the suit property, although, he was not in possession of the same. However, the learned Trial Court issued temporary injunction in favour of plaintiff restraining the defendant not to interfere in his possession. Since, the plantiff was not in possession, he under the grab of temporary injunction order in his favour by taking law in his hands and by muscle power dispossessed the defendant from the suit property and, therefore, on merits when the learned first appellate Court found that on the date of institution of the suit the plaintiff was not in possession, rightly the suit of plaintiff has been dismissed by allowing the appeal of the defendant and learned first appellate Court further rightly directed the plaintiff to deliver the possession because by unlawful means and by taking law in his hands which is not permissible in law he took the possession. To bloster his submission heavy reliance has been placed by the learned counsel for the respondent on the decision of this Court in Bhagwan v. Manibai 1994 (II) MPWN 36 . On these premised submission, it has been propounded by learned counsel for the respondent that the plaintiff -appellant is not entitled to any relief. The impugned judgment has rightly been passed by the learned first appellate Court and therefore, this appeal be dismissed. 8. On these premised submission, it has been propounded by learned counsel for the respondent that the plaintiff -appellant is not entitled to any relief. The impugned judgment has rightly been passed by the learned first appellate Court and therefore, this appeal be dismissed. 8. Having heard learned counsel for the parties, I am of the view that the appeal deserves to be dismissed. Regarding substantial question of law framed 9. The appeal has not been admitted on any other substantial question of law, except the question which I have referred herein above. Hence, I am required to answer that question only. 10. More than 26 years ago on 13.3.1985 the suit was filed by the plaintiff for injunction on the averments that he in possession of the suit property and hence prayed for decree of injunction against the defendant because it has been alleged that the defendant is trying to interfere in his possession. The learned First appellate Court allowed the appeal of the defendant by holding that the plaintiff is not in possession of the suit property since the year 1969-70. The plaintiff's witness Rakhan Prasad (PW-2) has admitted in his cross examination that the defendant is in possession of the suit property. Although he has further stated that later on the plaintiff came into the possession of the suit property. Defendant witnesses have also deposed that the suit property is being possessed by the- defendant. Thus, the learned First appellate Court had arrived at a pure findings of fact that the defendant was in possession of the suit property at the time of institution of suit, which was filed on 13.3.1985. No substantial question of law has been framed on the point of possession of defendant on the date of filing of the suit and, therefore, the said finding of learned appellate Court holding that defendant was in possession of the suit property and he has been dispossessed by the plaintiff during the pendency of the suit had attained finality. 11. On perusal of the impugned judgment, this Court finds that after issuance of temporary injunction order in favour of the plaintiff he by taking law in his hands, by unlawful means and dehors to the law and procedure prescribed under the law has taken the possession of the suit property. 11. On perusal of the impugned judgment, this Court finds that after issuance of temporary injunction order in favour of the plaintiff he by taking law in his hands, by unlawful means and dehors to the law and procedure prescribed under the law has taken the possession of the suit property. Thus, this type of practice should not only be deprecated but if it is affirmed, it would jeopardize the judicial system and people will loose faith from the Court. Since, the plaintiff was not at all in possession of the suit property on the date of filing of the suit and he took possession by illegal means under the grab of temporary injunction, I am of the view that the possession of the suit property can be given back to the defendant without there being any cross suit or counter-claim filed by him. In this context I may profitably place reliance on the legal maxim "actus curiae neminem gravabit", which means that a party should not be prejudiced by the action or inaction of any Court. In the facts and circumstances, of the present case this maxim is squarely applicable. Hence, I am of the view that the learned first appellate Court did not err in passing the order of the impugned judgment that the plaintiff should deliver the possession of the suit property to the defendant- respondent. Indeed the plaintiff -- appellant cannot take advantage of his own wrong. 12. This Court in Bhagwan (supra) has also taken the same view. In the said case similar type of substantial question of law was framed and I would like to apt to quote the said question of law which reads thus :"Whether in a suit for declaration and injunction the Court can pass a decree for possession against the plaintiff without there being any cross suit or counter-claim by the defendants? While answering the said substantial question of law, R.C. Lahoti, J. as His Lordship then was, answered the question of by holding that: "It is well settled that no person shall suffer by a wrong order of the Court. The lower appellate Court has formed an unhesitating opinion that the plaintiff-appellant did not deserve any interim injunction order being passed in his favour as he was certainly not in possession of the suit property on the date of the suit. The lower appellate Court has formed an unhesitating opinion that the plaintiff-appellant did not deserve any interim injunction order being passed in his favour as he was certainly not in possession of the suit property on the date of the suit. It is the wrong injunction order of the trial Court which became instrumental in plaintiff depriving the defendants of their possession over the suit property. When the Court superseded that interim injunction order it was not only empowered but was duty-bound to undo the wrong done under its order which had ceased to exist. No exception can be taken to the relief allowed by the Court to the defendants." 13. The substantial question is thus answered that without filing any counterclaim or cross suit seeking relief of possession of the suit property by the defendant-respondent, the learned first appellate Court has rightly passed the order to deliver the possession of the suit property to the defendant while allowing his appeal. 14. Resultantly, this appeal fails and is hereby dismissed with costs, counsel fee Rs. 3,000/- if pre-certified. V.S. Choudhary and Ashutosh Tiwari for appellant; Amit Nagpal for respondent.