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2019 DIGILAW 1504 (ALL)

Nand Lal v. Ram Autar

2019-05-30

RAJAN ROY

body2019
JUDGMENT : Rajan Roy, J. 1. Both the aforesaid matters are between the same parties involving a dispute pertaining to the same land, therefore, they were clubbed and have been heard together. It is the second appeal which is being decided first. Second Appeal No. 315 of 2011: 2. The second appeal has been filed by the legal heirs of the defendant, against the judgment and decree dated 29.5.2008 passed by the Addl. Civil Judge (Jr. Div.), Unnao, in Regular Suit No. 73 of 2003, Ram Autar v. Kanchan, and the judgment and decree of the First Appellate Court dated 26.7.2011 passed by the Additional District Judge (Court No. 1), Unnao. 3. The respondent-plaintiff filed a suit for permanent injunction against Kanchan, the defendant and predecessor-in-interest of the appellants herein. The suit was filed on 26.3.2003. The plaint was accompanied by a certified copy of a "Khasra" dated 17.3.2003 of 1410F. pertaining to Gata Nos. 393 and 394 measuring 0.130 Hect. And 1.320 Hect., the land in dispute as proof of the plaintiff being in possession. 4. A written statement was filed by the defendant denying the possession of the plaintiff and annexing therewith a "Dakhalnama' dated 2.2.2003 by which it was said that on conclusion of proceedings under section 145, Cr. P.C. in which a receiver had been appointed on the land in dispute by the Magistrate, the officials handed back possession to the defendant. The "Dakhalnama' bore the signature of the plaintiff Ram Autar. The following issues were framed by the Trial Court: "1. Whether the plaintiff was the owner in possession of the disputed land bearing Gata No. 393 (0.130 Hec.) and Gata No. 394 (0.320 Hec.) as also the trees existing thereon? 2. Whether the suit had been valued on the lower side and the stamp paid was inadequate? 3. Whether the plaintiff is entitled to any other relief?" 5. The Trial Court on consideration of the facts and evidence on record found that the Will on the basis of which the defendant claimed title could not be proved. The Trial Court also considered the fact that during mutation proceedings the Will had been found to be proved and the marginal witnesses had testified and proved the execution of the Will, but, during the trial before the Civil Court it found that they testified to the contrary. The Trial Court also considered the fact that during mutation proceedings the Will had been found to be proved and the marginal witnesses had testified and proved the execution of the Will, but, during the trial before the Civil Court it found that they testified to the contrary. One of the witnesses became hostile and the other deposed in favour of the plaintiff, therefore, in view of section 32 of the Indian Evidence Act the Trial Court was of the view that their evidence in mutation proceedings under section 34 of the Act, 1901 (hereinafter referred as 'Act, 1901') was inadmissible in the trial before it. 6. The documentary evidence adduced by the defendant relating to the proceedings under section 145, Cr. P.C., to show his possession, was not accepted on the ground that in proceedings under section 145, Cr. P.C. possession of the two preceding months alone is seen and the said proceedings relating to possession are based on facts i.e., de facto possession, and not in law i.e., de jure possession as had been held in a report Smt. Jarawati Devi and others v. State of U.P. and others 2007 (6) ALJ NOC 1083 (Alld). If possession is given during proceedings under sections 145 and 146, Cr. P.C., then it does not prove the fact that the defendant is owner in possession of the land in dispute. The Will on the basis of which title was being claimed could not be proved. The Trial Court also opined that the orders passed during miscellaneous proceedings under section 145, Cr. P.C. are not binding on the Civil Court. It found that the land belonged to Mani Ram and after his death the plaintiff, his son, became its owner in possession and his name was also recorded in the revenue records. Accordingly, it came to the conclusion that it is the plaintiff who was the owner in possession of the land in dispute. Issue No. 1 was decided accordingly and the suit was decreed. 7. Being aggrieved the appellant filed a first appeal. The First Appellate Court framed the following three points for determination: "1. Whether the plaintiffs father Mani Ram had executed a Will dated 1.3.1993 in favour of the defendant? If so, its effect? 2. Whether any rights have accrued to the parties based on the orders passed by the Revenue Courts? If so, its effect? 3. The First Appellate Court framed the following three points for determination: "1. Whether the plaintiffs father Mani Ram had executed a Will dated 1.3.1993 in favour of the defendant? If so, its effect? 2. Whether any rights have accrued to the parties based on the orders passed by the Revenue Courts? If so, its effect? 3. Whether any rights have accrued to the parties based on the proceedings under section 145, Cr. P.C.? If so, its effect?" 8. On Point No. 1 it opined that the Will alleged to have been executed by Mani Ram in favour of the defendant Kanchan was not proved and that the finding of the Trial Court that the plaintiff was in possession was liable to be affirmed. As regards Issue No. 2 proceedings before the Revenue Court under section 34 of the Act, 1901 were held to be summary in nature. Moreover, it was found that the name of the plaintiff was recorded in the revenue records in view of the order of the Board of Revenue dated 18.12.2002 staying the implementation of the order of the Addl. Commissioner. It also took note of the fact that the Board of Revenue had set aside the order of the Addl. Commissioner and affirmed the order of the Tehsildar dated 12.2.1998, but in a writ petition filed against the order of the Board of Revenue dated 22.9.2004, the said order and the said order of Tehsildar dated 12.2.1998 had been stayed by the High Court on 17.12.2004. Consequently the name of the plaintiff continued to be recorded in the revenue records. It opined that mutation proceedings being summary in nature did not involve declaration of any title, but were only for the purposes of payment of land revenue, but even in the said proceedings it was the plaintiff who was recorded in respect of the lands in question, therefore, the finding of the Trial Court that the plaintiff was the owner in possession did not require any interference. On Point No. 3 the First Appellate Court opined that the proceedings under section 145, Cr. P.C. are summary in nature and are based only on possession. On Point No. 3 the First Appellate Court opined that the proceedings under section 145, Cr. P.C. are summary in nature and are based only on possession. Moreover, vide order of the Magistrate dated 14.8.2002 the land which had been earlier handed to the Receiver had been released, which did not mean that the possession had been handed over to the defendant, as, there was no such mention in the said order dated 14.8.2002 (wrongly mentioned as 18.8.1999'), therefore, no benefit of it could be given to the defendant. 9. The First Appellate Court affirmed the judgment of the Trial Court. It found the name of the plaintiff recorded in the revenue records in respect of the lands in dispute in the Khatauni (Ext. 10Ga) pertaining to 1410F. and also that the crop of the plaintiff had been shown as existing on the said lands in the Khasra (11Ga) pertaining to 1410F. Thus, it found that being the son of Mani Ram who was the earlier recorded tenure holder the plaintiff became the owner on his death, whereas, the defendant who was the maternal grandson of the brother of Mani Ram, claiming title through Will executed by Mani Ram, could not prove the Will. In fact it was said that the original Will had not been filed. In this regard learned Counsel for the appellant has shown that the original Will was on the records of the Courts and that the same was available. The First Appellate Court also did not accept the testimony of the marginal witnesses to the Will during mutation proceedings, as, they had testified otherwise before the Civil Court. The First Appellate Court dealt with the validity of the Will at great length and opined, as the Will was not proved, therefore, possession based thereon was also not proved. According to the First Appellate Court the question of title was implicit in a suit for injunction. The mutation proceedings being summary in nature were not relied. The said proceedings had no relevance during pendency of suit for injunction before the Civil Court. As regards the documents filed by the defendant (36Ga/1, 36Ga/3) which were reports dated 6.2.2003 and 2.2.2003 showing that the possession of the land was handed over to the defendant consequent to the final order in the proceedings under section 145, Cr. The said proceedings had no relevance during pendency of suit for injunction before the Civil Court. As regards the documents filed by the defendant (36Ga/1, 36Ga/3) which were reports dated 6.2.2003 and 2.2.2003 showing that the possession of the land was handed over to the defendant consequent to the final order in the proceedings under section 145, Cr. P.C. by certain officials, the First Appellate Court did not accept the same as proof of defendant's possession on the ground that merely on these documents he could not be held to be the owner-in-possession. 10. The First Appellate Court opined that the disputed land was agricultural holding and the revenue records relating to title were important in view of section 57, according to which, the entries in the Khasra Khatauni are presumed to be correct, unless rebutted. Khasra was especially a document of possession, as such, in view of paper 10Ga and 11Ga i.e., Khatauni and Khasra filed by the plaintiff, it was established that he was owner in possession. Proceedings under section 145, Cr. P.C. did not help the case of the defendant. The Appellate Court accordingly dismissed the appeal. 11. In this Second Appeal, after it was admitted on 19.12.2011, substantial questions of law were framed on 15.3.2018 as under: "(1) Whether in the absence of any finding that the defendant/appellants were dispossessed from the land in suit at any time after 2.2.2003 and the plaintiff/respondent was delivered possession, the suit for injunction could be decreed? If not, its effect. (2) Whether the entry in the Khatauni 10-Ga and in Khasra 11-Ga, made under section 34 of the U.P. Land Revenue Act and being subjudice, since before the institution of the suit, could be admissible in evidence to prove the alleged ownership or/and possession of the respondent? If not, its effect. (3) Whether the finding of the Courts below on the point of possession suffers from substantial error of law as the material and admissible evidence 36-Ga/1 and 36-Ga/3, has been illegally rejected and the oral evidence of D.W. 3 has been illegally ignored? If yes, its effect." 12. If not, its effect. (3) Whether the finding of the Courts below on the point of possession suffers from substantial error of law as the material and admissible evidence 36-Ga/1 and 36-Ga/3, has been illegally rejected and the oral evidence of D.W. 3 has been illegally ignored? If yes, its effect." 12. During the course of hearing on 23.3.2018 an additional substantial question of law as under: "Whether the suit for injunction simplicitor by the plaintiff was maintainable without seeking a declaration as to his title and without seeking possession when his title and possession both were disputed by the defendants in view of dictum of the Supreme Court in Anathula Sudhakar v. Buihi Reddy, (2008) 4 SCC 594 ?" 13. The reason for framing the additional substantial question of law was mentioned in the subsequent hearing on 10.4.2019 as the decision of the Supreme Court reported in Anathula Sudhakar v. Buchi Reddy, (2008) 4 SCC 594 , relied by the learned Counsel for the appellant, the enunciation of law therein and the fact that in spite of the denial of title and possession of the plaintiff by the defendant appellant in the written statement, the suit which was for permanent injunction simplicitor without any relief for possession or declaration, was proceeded and decided as such, therefore, the question of its maintainability had a material bearing on the rights of the parties. 14. The arguments of Sri R.N. Tilahri, learned Counsel for the appellant in nutshell were as under: 15. In a suit for injunction simplicitor it was for the plaintiff-respondent to show that he was in actual possession. As the title of the plaintiff was disputed by the appellant-defendant and as the plaintiff was not in possession, in the absence of any relief seeking declaration of title and possession of the land in dispute, the suit for injunction simplicitor was not maintainable and injunction could not be granted. Reliance was placed by him in this regard upon the decision of the Supreme Court in the case of Anathula Sudhakar (supra) as also Jagdish v. Rajendra AIR 1975 Alld 395. He contended that the law respects possession even if there is no title to support it. Even a rightful owner has to take recourse to law to take possession. In this regard he relied upon Rome Gowda v. M. Beradappa Naidu 2004 (54) ALR 725 (SC). He contended that the law respects possession even if there is no title to support it. Even a rightful owner has to take recourse to law to take possession. In this regard he relied upon Rome Gowda v. M. Beradappa Naidu 2004 (54) ALR 725 (SC). In a suit for injunction the veracity of the Will and whether it was proved or not was not required to be seen. In this regard he relied upon T. Venkatnarayana v. Venkata Subamma, 1996(28) ALR 70 (SC). He submitted that there was no presumption of Khasra entries under the U.P. Land Revenue Act, 1901 (hereinafter referred as the "Act, 1901'). Such presumption was only with regard to the entries in the record of rights i.e., Khatauni. Khasra was not a record of rights. Thus, according to him, the Courts below had erred in drawing presumption of correctness of paper (11/1Ga) i.e., Khasra pertaining to 1410F. to hold that the plaintiff was in possession. He relied upon the decision in Nusurat Ullah v. Deputy Director of Consolidation 2015 (127) RD 320 (Alld), and Shiv Chan v. Deputy Director of Consolidation and others 2015(129) RD 19 (Alld). It was his submission, that the plaintiff did not establish that the Khasra entry of 1410F. was made in accordance with the procedure prescribed in the Land Records Manual. 16. He submitted that the Courts below failed to appreciate that from 18.8.1999 to 2.2.2003 it was the Receiver appointed by the Magistrate under section 145/146, Cr. P.C. who was in possession and on 2.2.2003 as was evident from the "Dakhalnama' dated 2.2.2003 and the report dated 6.2.2003 filed by the defendant, the authorities had handed over possession to the appellant-defendant consequent to the order of the Magistrate dated 14.8.2002 closing the said proceedings and the said document dated 2.2.2003 bore the signature of the plaintiff which was not denied, but all these documents and their evidentiary value had been ignored cursorily and incorrectly. The plaintiff did not prove the dispossession of the defendant at any time after 2.2.2003 up to the date of institution of the suit. In fact this was neither pleaded nor proved. The Khasra entry of 1410F was not admissible and could not be relied to record a finding of possession in plaintiff's favour. The plaintiff did not prove the dispossession of the defendant at any time after 2.2.2003 up to the date of institution of the suit. In fact this was neither pleaded nor proved. The Khasra entry of 1410F was not admissible and could not be relied to record a finding of possession in plaintiff's favour. In this regard he relied upon decision in Mahadeo v. Joint Director of Consolidation 2006 (100) RD 778, Rama Shanker Singh v. Kedar Singh 1993 RD 297; and Jagdish v. Rajendra, AIR 1975 Alld. 395. 17. Learned Counsel appearing for the respondent tried to support the orders of the Courts below on the basis of the reasonings given therein by reiterating the same. He also placed reliance on the Khasra entry pertaining to 1410F to say that on the date of filing of suit not only the plaintiff was recorded in the Khatauni which established his title, but in view of Khasra entry there was enough proof to show that he Was in possession and as the Will of the defendant was not proved, therefore, the suit was rightly decreed and the defence of the defendant did not have any legs to stand. 18. In a suit for injunction simplicitor the Trial Court is required to see as to whether the plaintiff is in actual possession of the disputed property or not? If he is not in possession, then a suit for injunction simplicitor without seeking possession would not lie. If the defendant denies the title of the plaintiff or raises a cloud on his title to the property, then in appropriate cases a relief seeking declaration of title may also be required. If a plaintiff has title and the same is not disputed or it is not under a cloud, but he is not in possession, then a suit for injunction simplicitor would not lie. Such a suit will have to be for possession and may be injunction. A reference may be made in this regard to the decision of the Supreme Court in Anaithula Sudharkar (supra), paragraphs 13 to 16 of which, read as under: "13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well-settled. We may refer to them briefly. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well-settled. We may refer to them briefly. (13.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. (13.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. (13.3) Where the plaintiff is in possession,-but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. 14. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the Court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title. 15. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may grove physical or lawful possession, either of himself or by him through is family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally. 16. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally. 16. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the Court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where Court feels that parties had not proceeded on the basis that title was at issue, the Court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs." The law on the subject was summarized by the Supreme Court in paragraph 21 as under: "21. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under: (a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the Court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the Court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the Court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The Court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case." 19. A reference may also be made in this regard to the decision of the Supreme Court herein the law relating to permanent injunction has been enunciated on similar lines. They are Ramji Rai and another v. Jagdish Mallah and another 2007 (66) ALR 307 (SC); Thimmaiah v. Shabhira and others (2008) 4 SCC 182 ; Lalitha and another v. Selvaraj AIR 2006 Mad 122 . 20. In the present case the plaintiff's basis for claiming to be in possession of the agricultural land and for seeking injunction simplicitor was a Khasra pertaining to 1410F. A Khasra, if prepared in accordance with Rules and proved to be so, is relevant for deciding a question of possession, however, there is no presumption as to the correctness of the entries therein under section 57 of the Act, 1901. The presumption referred therein is with regard to record of rights prepared in accordance with the provisions of Chapter IV of the Act, 1901, therefore, the contrary observation by the Courts below in this regard is apparently erroneous. Reference may be made in this regard to a decision of this Court in Shivchan v. D.D.C. and others 2015 (129) RD 19; and Nusratullah and others v. D.D.C. and others 2015 (127) RD 320 , wherein the same view has been expressed. Reference may also be made to the decision of this Court reported in 2006 RD 778 wherein it has been held that unless Khasra entries were made in accordance with the procedure prescribed by Land Records Manual, they have no evidentiary value and no reliance can be placed on such entries. The Khasra in question was obtained merely a few days prior to the filing of the suit i.e., on 17.3.2003. The suit was filed on 26.3.2003. There was ample evidence on record in the form of documents pertaining to the proceedings held before the Magistrate under section 145, Cr. The Khasra in question was obtained merely a few days prior to the filing of the suit i.e., on 17.3.2003. The suit was filed on 26.3.2003. There was ample evidence on record in the form of documents pertaining to the proceedings held before the Magistrate under section 145, Cr. P.C. which show that vide order dated 18.8.1999 the Magistrate on an application filed by the plaintiff, had appointed a Receiver to whom the possession of the land in dispute hand been handed over. It is not known as to who was in possession prior to the Receiver being handed over the possession of the said land and no such evidence was adduced by the plaintiff Ram Autar. There is ample evidence on record to show that vide order dated 14.8.2002 the Magistrate, considering the fact that the Ram Autar (plaintiff) was not appearing in the proceedings, ordered its closure, as, he did not find any reason to continue the proceedings. Accordingly he withdrew the order dated 18.8.1999 passed under section 46, Cr. P.C. and ordered the release of the land from the possession of the Receiver. Order of the Pargana Magistrate, Sadar Unnao, dated 14.4.2002 is on the original records and has been seen by the Court. While it is true that there was no order by the Magistrate in terms of section 145/146, Cr. P.C. which required him to take a decision as to who was in possession or was entitled to be given possession amongst the warring parties and it is also true that by the said order he did not direct the possession to be handed over to the defendant Kanchan, it is equally true that there were other documents on record in the form of "Fard-Supurdgi' "supurdginama" by which the lands in dispute were handed over by the District Authorities to the defendant Kanchan after taking back the same from the Receiver in the presence of the parties, including the plaintiff Ram Autar and in the presence of independent witnesses as mentioned therein. Most importantly the said document which is a certified copy of the original and is a public document bears the signatures of Ram Autar, the plaintiff. These signatures were not denied by the plaintiff and there is nothing on record to show otherwise. The Receiver's presence is also noted in the said document at the time of handing over possession. Most importantly the said document which is a certified copy of the original and is a public document bears the signatures of Ram Autar, the plaintiff. These signatures were not denied by the plaintiff and there is nothing on record to show otherwise. The Receiver's presence is also noted in the said document at the time of handing over possession. When the Receiver Ram Shankar Yadav, erstwhile Gram Pradhan, was asked to give the accounts, he sought time as he was unwell as is recorded in his statement dated 2.2.2003, certified copy of which is also on the original records of the Trial Court. 21. There is another certified copy of the report dated 6.2.2003 prepared by the District/Police officials addressed to the S.D.M., Sadar, in response to the application of Kanchan submitted before the S.D.M. stating that on account of illness of the Receiver Ram Shankar Yadav the erstwhile Pradhan, the accounts have not been submitted by him, his statement in this regard was annexed, he has asked for 10 days' time for submitting the accounts. The report further submits that the lands bearing Gata Nos. 393 and 394, the possession of which had been handed over to the erstwhile Gram Pradhan Ram Shankar Yadav as Receiver, the possession of it had been handed over to Kanchan (defendant in the suit) as per his order (S.D.M's order) on 2.2.2003. The Fard Supurdgi was annexed. The list of trees existing on the land and those said to have been existing earlier was also enclosed separately. 22. While it is true that any orders passed in proceedings under section 145/146, Cr. P.C. would not bo binding in proceedings before the Civil Court, it is equally true that there was evidence on record to show that from 18.8.1999 to 2.2.2003 the land in dispute was in the possession of the Receiver. Even if the document dated 2.2.2003 is ignored for a moment, although its veracity and the signatures of Ram Autar thereon were not disputed by the plaintiff, it is a fact that the S.D.M. on 14.8.2002 passed the order for releasing the property from the possession of the Receiver. Now it was for the plaintiff to show as to when he came into possession after 14.8.2002 and before filing of the suit on 26.3.2003. The only evidence on record was the Khasra pertaining to 1410F. Now it was for the plaintiff to show as to when he came into possession after 14.8.2002 and before filing of the suit on 26.3.2003. The only evidence on record was the Khasra pertaining to 1410F. As against this Khasra, the evidence of the defendant in the form of the "Fard Supurdgi" dated 2.2.2003 bearing the signature of the plaintiff was on record, but this fact escaped the notice of the Courts below that the document bore the signature of the plaintiff and was alleged to have been prepared in his presence as also the Receiver, yet, the plaintiff did not lead any evidence to rebut the same. The report dated 6.2.2003 says that possession was handed over to Kanchan is ordered by the S.D.M. after an application had been filed by him before the S.D.M. No evidence was led to show as to who was in possession prior to the order of the Magistrate dated 18.9.1999. The Receiver was not produced who could have thrown light in this regard. The Courts below failed to appreciate the documents containing the signature of the plaintiff showing the possession of the land being handed over to the defendant and that the plaintiff did not lead any evidence in rebuttal. The approach of the Courts below was erroneous as they primarily saw the title of the defendant based on the Will claimed by him, oblivious of the fact that the suit was not of the defendant, but of the plaintiff who had to show his possession. Even if the Will of the defendant was not proved, it was not of much relevance in a suit for injunction simplicitor, where, even if the plaintiff had title, he was required to show that he was in actual possession on the date of filing of the suit, as, there was no relief for seeking possession of the land in question. 23. 23. As regards the contention of Sri Tilahari, Advocate that the title of the plaintiff having been disputed and a cloud having been cast on it, the suit should have been properly framed or amended seeking a declaration of title, it need not be gone into at this stage, as, the appellant-defendants Will, even if its veracity was not directly and substantially in issue, could not be proved even incidentally to the proceedings as out of the two marginal witnesses one deposed in favour of the plaintiff and the other became hostile. But as already stated hereinabove, the crux of the matter was as to whether the plaintiff was in actual possession on the date of filing of the suit or not. In this regard this Court is of the view that the Courts below erred in ignoring the signature of the plaintiff on the Fard Supurdgi dated 2.2.2003 and the absence of any explanation or rebuttal in this regard by him and also in view of the absence of any explanation as to how the plaintiff came into possession whether after 14.8.2002 or 2.2.2003, as the case was, as, in the absence of any specific order in this regard by the Magistrate on 14.8.2002, the possession after being taken back from the Receiver was required to be handed over by the authorities to the person who was in possession on or prior to 18.9.1999 when the Receiver was appointed. The record shows that some proceedings for settlement of accounts were undertaken and in this context there is a document dated 2.2.2003 i.e., the Fard Supurdgi, showing the handing over of possession to the defendant Kanchan in the presence of independent witnesses including the Receiver and the plaintiff Ram Autar himself, but this aspect of the matter, materially affecting the rights of the parties, has been ignored by the Courts below, which have adopted an erroneous approach to look into the title of the defendant. 24. The requirement to see the title in a suit for injunction arises when the plaintiff's title is disputed or a cloud is cast in this regard by the defendant, as, no injunction can be issued in favour of a trespasser having no title. The plaintiff had to show his lawful possession as held in the case of Anaithula Sudhakar (supra). The requirement to see the title in a suit for injunction arises when the plaintiff's title is disputed or a cloud is cast in this regard by the defendant, as, no injunction can be issued in favour of a trespasser having no title. The plaintiff had to show his lawful possession as held in the case of Anaithula Sudhakar (supra). Where a plaintiff is in lawful possession or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simplicitor will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction, but a person in wrongful possession is not entitled to an injunction against the rightful owner. Where the title of the plaintiff is not disputed, but, he is not in possession, his remedy is to file a suit for possession and seek, in addition, if necessary, an injunction. A person out of possession cannot seek the relief of injunction simplicitor, without claiming the relief of possession. The plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and the defendant tried to interfere or disturb such lawful possession. This lawful possession is actual possession as would be evident from paragraphs 13 to 16 of the said decision, wherein, in respect of agricultural land it has been observed that possession may be established with reference to the actual use and cultivation. A reference may also be made to the decision of this Court in the case of Jagdish (supra) wherein also it was held that there can be no denying that in case the plaintiff was held not to be in possession on the date when injunction was claimed, then he was not entitled to the same. Before an injunction can be granted it has to be shown that the plaintiff was in possession. In the said case at the relevant time possession was in the hands of a Court of Criminal jurisdiction and the plaintiff was held not entitled to an injunction. Before an injunction can be granted it has to be shown that the plaintiff was in possession. In the said case at the relevant time possession was in the hands of a Court of Criminal jurisdiction and the plaintiff was held not entitled to an injunction. Reference may also be made to decision of the Supreme Court in the case of Ramegaoda (supra) wherein with reference to the hook on Jurisprudence (12th edition by Salmond) the Supreme Court observed- "Legal remedies thus appointed for the protection of possession even against ownership are called possessory, while those available for the protection of ownership itself may be distinguished as proprietary." The Supreme Court considered a Full Bench decision of this Court in Yaar Md. v. Laxmi Das AIR 1959 Alld 40 wherein it was held - "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." Reference was also be made to the decision of the supreme Court reported in 1989 4 SCC 131 wherein it was held that where a person is in settled possession of property, even on the assumption that he had no right to remain on property, he cannot be dispossessed by the owner of the property except by recourse to law. 25. The main issue to be considered by the Courts below was as to whether the plaintiff was in possession on the date of filing of the suit or not. In this regard as already stated earlier the Courts below ignored the relevant aspects of the matter and the evidence on record. They misread the evidence bearing paper Nos. 36Ga(1) to 36Ga(3) which are the documents pertaining to the proceedings under section 145, Cr. P.C. including the "Fard Supurdgi'. The plaintiff did not file any documentary evidence pertaining to the period prior to 18.9.1999 when the Receiver was in possession to show that he was in possession prior to the said date nor was any other evidence led in this regard. The approach of both the Courts below was to see the possession of the defendant instead of seeing as to whether the plaintiff was in possession. 26. The approach of both the Courts below was to see the possession of the defendant instead of seeing as to whether the plaintiff was in possession. 26. While in exercise of powers under section 100, C.P.C. concurrent findings are normally not interfered with, but faced with a situation, where the approach of the Courts below itself has been erroneous, the relevant aspects of the matter, as also, the relevant admissible evidence on record has been misread and ignored and has not been considered properly in accordance with law, such interference is permissible. Reference may be made in this regard to the decision of the Supreme Court in 2007 5 SCC 669 wherein it was, inter alia, held that a limited jurisdiction under section 100, C.P.C. would become exercisable when the findings are based on misreading of evidence and that the High Court shall also be entitled to opine that a substantial question of law arises for its consideration when material and relevant facts have been ignored and legal principles have not been applied in appreciating the evidence. If the Courts below have ignored material evidence or have drawn wrong inferences from proved facts by applying the law erroneously and/or the evidence taken as a whole is not reasonably capable of supporting the finding interference under section 100, C.P.C. is permissible. In the case in Jagdish Singh v. Natthu Singh, 1992 (19) ALR 297 (SC), the Supreme Court opined in this regard that where the findings by the Court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from interfering. Reference may also be made to the decision of the Supreme Court in Shri Bhagwan Sharma v. Bani Ghosh, AIR 1993 SC 398 , wherein it was held that the High Court was certainly entitled to go into the question as to whether the findings of fact recorded by the First Appellate Court were vitiated in the eye of law on account of non-consideration of admissible evidence of vital nature. In the said case the Supreme Court also considered the provisions of section 103(b) of the Code of Civil Procedure to say that after setting aside the findings of fact on that ground the Court had either to remand the matter to the First Appellate Court for re-hearing of the first appeal in accordance with law after taking into consideration the entire relevant evidence on the records or in the alternative to decide the case finally in accordance with the provisions of section 103(b), C.P.C. which permits the High Court at its discretion to determine any issue necessary for disposal of the issue, if the evidence on record is sufficient and which has been wrongly determined by the Courts below in exercise of power under section 100, C.P.C. 27. The Courts below have erred in adopting an erroneous approach as stated hereinabove, failing to consider as to whether the plaintiff came into possession, if at all, after 14.8.2002 or 2.2.2002, when and how; they have erred in relying upon the Khasra in view of the other evidence in rebuttal in the form of Fard Supurdgi dated 2.2.2003 and the report dated 6.2.2003, which have been ignored, especially as, there is no presumption of entries in the Khasra under section 57 of the Act, 1901 in the context of issue of possession and as the Courts below have failed to follow the law laid down in the case of Anathula Sudhakar (supra) and other authorities referred above, thereby recording perverse finding based on an erroneous approach materially affecting the rights of the parties adversely. The issues discussed above are required to be reconsidered by the Trial Court. 28. Substantial questions of law framed by this Court are answered accordingly as aforesaid. 29. In view of the above, the impugned judgment of the Trial Court dated 29.5.2008 and the First Appellate Court dated 26.7.2011 are set aside. The matter is remanded back to the Trial Court for a consideration afresh in the light of the observations made hereinabove. 30. The original records of the Trial Court and the First Appellate Court shall be returned back to the respective Courts by the concerned section. 31. The suit proceedings shall be concluded by the Trial Court within a period of 1 year from the date a certified copy of this judgment is received by it. 32. 30. The original records of the Trial Court and the First Appellate Court shall be returned back to the respective Courts by the concerned section. 31. The suit proceedings shall be concluded by the Trial Court within a period of 1 year from the date a certified copy of this judgment is received by it. 32. Till disposal of the suit parties shall maintain status quo with regard to the possession over the land in question and shall not alienate the same. 33. The Second Appeal is allowed in the aforesaid terms. 34. As far as Writ Petition No. 5581 (MS) of 2004 is concerned, the same arises out of mutation proceedings under section 34 of the Land Revenue Act, 1901 and the appellate/revisional proceedings arising therefrom in respect of the same land which was the subject-matter of the aforesaid second appeal decided as aforesaid. 35. In the writ petition the order of the Board of Revenue dated 22.9.2004 has been challenged. The facts of the case in brief are that after the death of Mani Ram P.A.11 entry was made in the name of his two sons Ram Autar and Dularey. Kanchan, the maternal grandson of Dularey initiated proceedings under section 34 for mutation of his name on the basis of an alleged unregistered Will executed by Mani Ram in his favour which was allowed by the Tehsildar on 12.2.1998. Against this order Ram Autar filed an appeal under section 210 of the Act, 1901 before the S.D.M. which was allowed on 29.4.1998 and the order of the Tehsildar was set aside. Being aggrieved Kanchan filed a revision before the Additional Commissioner under section 219 of the Act, 1901. The Additional Commissioner found that the relevant aspects as to the validity of the Will had not been noticed by the Courts below, therefore, it set aside the order of the S.D.M. dated 29.4.2018 and remanded the matter back to the Tehsildar for re-consideration of the matter in the light of the observations made in her order dated 8.11.2002. 36. Being aggrieved the petitioner Ram Autar filed a revision before the board of Revenue under section 219 of the Act, 1901. 36. Being aggrieved the petitioner Ram Autar filed a revision before the board of Revenue under section 219 of the Act, 1901. The Board of Revenue accepted the contention of the petitioner that the Tehsildar and the S.D.M. having passed the order on merits and the relevant facts and evidence being available before the Revisional Court i.e., the Additional Commissioner, the matter should not have been remanded back, instead the Additional Commissioner should have considered the matter himself, on merits. Reliance was placed in this regard on a decision of this Court in (Smt.) Jugla Devi v. 1st Addl. DJ and others, 1985 (3) LCD 385. The Board of Revenue set aside the order of the Additional Commissioner dated 8.11.2002 and affirmed the order of the Tehsildar. 37. Considering the fact that the second appeal of the petitioner has been decided in the aforesaid terms by this very judgment albeit separately and the matter arising out of the civil proceedings for permanent injunction has now been remanded back to the Trial Court and after going through the judgment of the Board of Revenue this Court finds that it did not appropriately deal with the reasons given by the Additional Commissioner in his judgment dated 8.11.2002 and affirmed the order of the Tehsildar cursorily, therefore, this Court sets aside the judgment dated 2.9.2004. Consequently the revision of the petitioner before the Board of Revenue shall stand restored which shall now be considered and decided by it as per law. While doing so, the Board of Revenue shall take note of the fact that the proceedings before the Civil Court are pending and it would be advisable to wait for its decision before taking any decision in the said revision. 38. With these observations the writ petition is disposed off.