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2013 DIGILAW 934 (MP)

Sohan Yadav v. Mehmuda

2013-08-07

Alok Aradhe

body2013
Judgment : This appeal is by the plaintiff, which was admitted on the following substantial question of law :- “Whether the appellant is entitled to protect his possession against his dis-possession except by due process of law ?” 2. Facts giving rise to filing of the appeal briefly stated are that the plaintiff filed a suit inter-alia on the ground that the plaintiff had taken the suit plot on lease on monthly rent in the year 1983 from one Ayub Khan, who had inimical relations with his family and therefore, he used to reside with the plaintiff. It is the case of the plaintiff that aforesaid Ayub Khan by oral gift dated 15.12.1994 conveyed the suit plot to the plaintiff. After death of Ayub Khan on 12.4.1995, his widow namely defendant No.1 obtained the suit plot on lease for a period of one year. The Nazul Officer passed the order dated 9.1.1996 and directed dispossession of the plaintiff. In the circumstances aforesaid, the plaintiff filed a suit seeking relief of permanent injunction and damages. 3. The defendant No.1 filed written statement in which inter-alia it was denied that the suit plot was let out to the plaintiff on lease. It was further pleaded that infact the plaintiff was employed as their servant and the alleged oral gift was neither made by the husband of the defendant No.1 nor the same could be made in favour of a Hindu. It was also pleaded that defendant No.1 is the lessee of the suit plot and therefore, is entitled to possession of the same. 4. The trial Court vide judgment and decree dated 7.8.2000 inter-alia held that the plaintiff failed to prove that he was in possession of the suit plot as tenant since 1983. However, it was held that since the plaintiff is in possession of the suit plot, therefore, he should not be dispossessed except in accordance with the law. Accordingly, the suit was partly decreed. The aforesaid decree was reversed by the lower appellate Court on the ground that an encroacher is not entitled to an injunction. 5. However, it was held that since the plaintiff is in possession of the suit plot, therefore, he should not be dispossessed except in accordance with the law. Accordingly, the suit was partly decreed. The aforesaid decree was reversed by the lower appellate Court on the ground that an encroacher is not entitled to an injunction. 5. Learned counsel for the appellant submitted that the plaintiff is in possession of the suit plot since 1983 and therefore, even if he is treated to be an encroacher, he is in settled possession of the suit plot and was therefore entitled to injunction to the limited effect that he shall not be dispossessed except in accordance with the law. In support of his submissions, learned counsel for the appellant has placed reliance on the decision in the case of Puran Singh and Others Vs. The State of Punjab, (1975) 4 SCC 518 , Krishna Ram Mahale (dead) by his LRs. Vs. Mrs. Shobha Venkat Rao, AIR 1989 SC 2097 . 6. I have considered the submissions made by learned counsel for the appellant and have perused the record. In case of Lallu Yeshwant Singh Vs. Rao Jagdish Singh, AIR 1968 SC 620 , it has been held that law respects possession even if there is no title to support it and even an encroacher cannot be dispossessed by the owner of the property except in accordance with law. Similar view has been taken in case of Puran Singh and Krishna Ram (supra). 7. Admittedly, both the Courts below have found that the appellant is in possession of the suit plot. Thus, in view of aforesaid enunciation of law by the Supreme Court, the appellant cannot be dispossessed except in accordance with the law. 8. For the aforementioned reasons, the substantial question of law framed by this Court is answered in affirmative and in favour of the plaintiff. The judgment and decree passed by the lower appellate Court is set aside and that of the trial Court is restored. 9. In the result, the appeal is allowed. However, there shall be no order as to costs.