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2011 DIGILAW 303 (ORI)

GUNJAR BEWA v. NAKULA LENKA

2011-05-17

ARUNA SURESH

body2011
JUDGMENT : Aruna Suresh, J. - Impugned in this appeal is the judgment dated 24.12.1985 and decree dated 10.1.1986 of the First Appellate Court whereby the judgment dated 17.3.1981 and decree dated 2.4.1981 of the Munsif, Dhenkanal(Civil Judge, Junior Division) has been reversed. 2. Appellant herein (plaintiff) filed a suit being T.S. No.26 of 1976 for permanent injunction in respect of property in Plot No.3906 Khata No.2099 of last settlement situated in Dhenkanal town measuring an area of Ac.0.42 decimals against the respondents herein (defendants) seeking following reliefs: (a) for a decree of permanent injunction restraining the defendants not to dismantle the house of the plaintiff standing on the suit plot either by themselves or through any of their agencies. (b) for a decree directing the defendants not to go over the suit land till the title to the suit land is declared by competent authority. 3. Case of the plaintiff is that the suit land is a Government land. In the remark column of last settlement (Ext.3-khatian), he has been shown in forcible possession of the land since 1944. An encroachment Case No.50 of 1966 was initiated by Tahasildar, Dhenkanal against him. Vide order dated 27.12.1967, Tahasildar observed that he was in unauthorized possession for about 23 years and impose penalty of Rs.462.30 and Rs.231.15 u/s 3 & 5 of the Orissa Prevention of Land Encroachment Act with the directions to vacate the encroachment at once. 4. He had constructed a residential house on the impugned plot about 35 years back. He had also enclosed that area and had grown some trees and other plantation etc. and had been using the same as a Bari. He also claimed adverse possesory rights in the property in suit. 5. The defendants are alleged to have broken the fence, destroyed the plants and damaged the vegetables on 23.8.1976 and started leveling the ground to erect houses. He immediately filed a complaint before the SDJM, Dhenkanal. However, the defendants constructed seven temporary huts. When plaintiff came to know from the defendants that they intended to dismantle his house and throw out his family who are living there, he apprehended dispossession from his house at the hands of the defendants. Hence, he filed the suit. 6. Defendants no. He immediately filed a complaint before the SDJM, Dhenkanal. However, the defendants constructed seven temporary huts. When plaintiff came to know from the defendants that they intended to dismantle his house and throw out his family who are living there, he apprehended dispossession from his house at the hands of the defendants. Hence, he filed the suit. 6. Defendants no. 1, 2, 3 & 5 contested the suit by completely refuting the assertions made by the plaintiff in the plaint including his claim of possessory rights over the impugned land. The contested defendants also challenged the maintainability of the suit on various grounds like non-joinder and mis-jointer of parties, non-maintainability of the suit for non-implementation of Govt. of Orissa as co-defendants and also having not claimed the relief of possession, in view of his assertion in the plaint that defendants had encroached upon part of the impugned land. 7. The suit was decreed by the trial Court on 21.9.1977 against which respondents went in appeal. The Appellate Court set aside the judgment and decree of the trial Court and remanded back the case vide judgment dated 4.7.1978 for fresh disposal. 8. The trial Court after framing of additional issues, recorded. fresh evidence of the parties and after giving due opportunity of hearing, decreed the suit of the plaintiff vide judgment dated 17.3.1981. 9. Aggrieved by the said judgment and decree, defendants filed T.A No.7 of 1981. The Appellate Court vide impugned judgment dated 24.12.1985 allowed the appeal and set aside the judgment and decree of the trial Court holding that a suit for permanent injunction in the absence of relief for possession and declaration of title was not maintainable. 10. In this appeal, following substantial question of law as framed on 6.5.1986 needs adjudication. Whether a suit for permanent injunction only would be maintainable in respect of land in possession of the plaintiff where he has no title on the allegation that others having no better interest than him are interfering with his possession? 11. None has appeared on behalf of the respondents despite matter having been listed for final hearing in the regular list for about more than a month. Under the circumstances, in the absence of respondents' counsel, Mr. R.C. Rath, appearing for the appellant has been heard. 11. None has appeared on behalf of the respondents despite matter having been listed for final hearing in the regular list for about more than a month. Under the circumstances, in the absence of respondents' counsel, Mr. R.C. Rath, appearing for the appellant has been heard. He has submitted that the Appellate Court went wrong in holding that the suit for permanent injunction in the absence of relief of declaration of title and possession was not maintainable. He has argued that defendants had no better title in the suit property than that of the plaintiff as both of them admit that the impugned land is owned by the Government and, therefore, their status is not more than a trespasser. He has further submitted that since plaintiff is in prior possession of the suit property and defendants are subsequent alleged encroachers, plaintiff is entitled to protect his possession against them. He has emphasized that the trial Court was right in holding that suit as filed by the plaintiff was maintainable. 12. I find much force in the submissions made by the learned counsel for the appellant. Admittedly, Government of Orissa is the owner of the impugned land and plaintiff is an encroacher since 1944. Therefore, the plaintiff has claimed only possessory rights in the suit land qua the defendants. There is no dispute that possession of the plaintiff over the suit land is not disturbed by the State Government but has been disturbed by the defendants by subsequent encroachment. 13. It is no longer res integra that first trespasser can protect his possession against everyone except the true owner. This principle of law was conceded to by the learned counsel appearing for the defendants before the trial Court. A trespasser has no right to disturb peaceful possession of long time of any person on any suit property and he cannot reap benefits of his illegal act. Relief of permanent injunction accordingly cannot be refused to the plaintiff to protect his possession against interference of defendants and for that the latter could also be injuncted not to interfere in any manner with peaceful possession of the suit land by the plaintiff including construction by him of any structure on that land. 14. In Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and Others, the Supreme Court reaffirmed the proposition of law laid down in Perry Vs. 14. In Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and Others, the Supreme Court reaffirmed the proposition of law laid down in Perry Vs. Clissold:- It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has perfectly good title against all the world but the rightful owner.------ 15. In M. Kallappa Setty Vs. M.V. Lakshminarayana Rao, while examining the question of possession of the plaintiff in the said case, the Apex Court observed :- 5.------- Plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property. Once it is accepted, as the trial Court and the first appellate Court have done, that the plaintiff was in possession of the property ever since 1947 then his possession has to be protected as against intereference by someone who is not proved to have a better title than himself to the suit property. Similar are the observations of the Supreme Court in Krishna Ram Mahale (Dead), by his Lrs. Vs. Mrs. Shobha Venkat Rao. It was held that since the appellant was found to be in possession of the suit property, he was entitled for a decree of permanent prohibitory injunction against the respondent from trespassing upon that property and interfering with his peaceful possession and enjoyment of the same, as respondent did not claim any title in the disputed property. 16. In Gadadhar Sahu V. Karsanbasta Patel ILR 1963 Cuttack 482 as referred to by the counsel for the appellant, it was held:- 7. The position of law is now well-settled that a person in possession of land without title has an interest in the property which is heritable and good against all the world excepting the true owner. This interest, unless the true owner interferes, is transferable.------- 17. This proposition of law has been followed by this Court in E. Mangulu and others Vs. Paddili Sriramlu 1974 (1) CWR 568. 18. In the instant case, plaintiff has only claimed possessive rights. True that he has also averred title by adverse possession against the Government for which he had served a notice u/s 80 C.P.C, however, that is not the subject matter of the present suit. The defendants have not claimed any better title than that of the plaintiff in the impugned land. True that he has also averred title by adverse possession against the Government for which he had served a notice u/s 80 C.P.C, however, that is not the subject matter of the present suit. The defendants have not claimed any better title than that of the plaintiff in the impugned land. The trial Court while deciding issue no.3 & 4, on analysis of the evidence of the parties oral as well as documentary, held that plaintiff was the trespasser first in time on the impugned land and since thereafter remained in continuous possession, and therefore, was entitled to hold his possession against the defendants, who had no right to dispossess him from the impugned land. The Appellate Court did not interfere in the finding of fact by the trial Court that plaintiff was in possession of the land in suit prior in time and defendants were subsequent encroachers. In fact, the Appellate Court did not give any specific finding against the fact finding of the trial Court on issues no.3 & 4. The Appellate Court only considered the findings of the trial Court on issue of maintainability of the suit and while disagreeing with it, allowed the appeal. The relevant findings of the appellate Court are in para 8 of the judgment. It reads : The dispute appertains to Ac.0.42 decimals of land under Plot No.3906, Khata No.2099 situated in Dhenkanal town. The plaintiff has filed the suit merely for permanent injunction on the allegations that the defendants are threatening to dispossess him there from without any manner of right. At the same time, he also avers in paragraph 9 of the plaint that the defendants have constructed seven numbers of temporary thatched huts on the disputed land. The defendants have raised an objection to the maintainability of the suit as framed. In view of this admission in para 9 of the plaint, they have also raised this question of maintainability of the suit in the trial Court which the trial Court has decided under issue no.1. The trial Court has held in favour of the plaintiff on the ground that both being trespassers, one who has been dispossessed can file a suit for permanent injunction against the other without seeking declaration of title, recovery of possession. This view is clearly erroneous. The trial Court has held in favour of the plaintiff on the ground that both being trespassers, one who has been dispossessed can file a suit for permanent injunction against the other without seeking declaration of title, recovery of possession. This view is clearly erroneous. The plaintiff has not only admitted in his plaint that the defendants are in possession of some portions of the disputed land, but also, it is in the evidence that the plaintiff is not in possession of the entire land. Plaintiff as P.W.1 admits that the defendants have forcibly occupied the suit land. P.W.2 Banchhanidhi Naik also says that the defendants are in forcible possession of the suit land. Therefore, in view of the admission in the plaint, as well as the admission in the evidence of the witnesses, the plaintiffs should have amended the relief sought for and made the suit one for declaration of title and recovery of possession. That no having been done, the plaintiff who is not in possession of the land, cannot maintain a suit for permanent injunction simplicitor.----- 19. The aforesaid observations of the Appellate court are apparently against the settled principle of law as discussed above. The Appellate Court adopted erroneous approach while considering the maintainability of the suit and observing that trial Court had wrongly held in favour of the plaintiff that both being trespassers, one who has been dispossessed, can file a suit for permanent injunction against the other without seeking declaration of title and recovery of possession. It is pertinent to note that relief claimed by the plaintiff in the suit for permanent injunction was to restrain the defendants from dismantling his house standing on the suit plot either by themselves or through any of their agencies and further for directing the defendants not to visit the suit land till the title to the same was declared by the competent authority. Plaintiff did not claim any relief of permanent injunction as regards part of the open land ban which was allegedly encroached by the defendants. Defendants as per their own case had claimed possession of Ac.0.10 decimals of land out of total disputed land of Ac.0.42. decimals. Therefore, the trial Court rightly held that plaintiff was entitled to file a suit for permanent injunction against the defendants for protecting his possession in respect of the suit land which was not trespassed by the defendants. 20. Defendants as per their own case had claimed possession of Ac.0.10 decimals of land out of total disputed land of Ac.0.42. decimals. Therefore, the trial Court rightly held that plaintiff was entitled to file a suit for permanent injunction against the defendants for protecting his possession in respect of the suit land which was not trespassed by the defendants. 20. Hence, I conclude that the suit for permanent injunction without claiming any relief of possession and declaration in respect of the land in suit in which plaintiff has not claimed any title, is maintainable against the defendants. Since the defendants had threatened to trespass the land in plaintiff's possession, he had the right to seek relief of perpetual injunction against the defendants to protect his possession in the property in suit. 21. In view of my discussion as above, the impugned judgment and decree of the appellate court is accordingly set aside. There are no orders as to cost. Trial Court record as well as First Appellate Court's record be sent back along with an attested copy of this order forthwith.