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2021 DIGILAW 543 (RAJ)

Bhanwar Singh v. Heera Chand Jain

2021-03-03

ARUN BHANSALI

body2021
JUDGMENT : Arun Bhansali, J. 1. These appeals have been filed by the appellants aggrieved against the judgments & decrees dated 04.02.2017 passed by Senior Civil Judge, Sumerpur, District - Pali and judgments & decrees dated 14.11.2018 passed by the Additional District Judge, Sumerpur, District - Pali, whereby the suits filed by the respondents for permanent and mandatory injunction have been decreed and the appeals filed by the appellants have been dismissed. 2. The suits for permanent and mandatory injunction were filed by the plaintiffs on 08.05.2014, inter alia, with the submissions that the suit plots were purchased by them from father of the defendants vide registered sale-deed dated 06.12.1993 and since then, they were in peaceful possession of the plots in question, which was surrounded by fence with a gate and there were four trolley stones lying on the plots. The defendants unauthorisedly entered the plots on 04.05.2014 and started digging for foundation through JCB. It was indicated that as the defendants have started to dig foundation, the suits were being filed for permanent injunction and for restoration of the plots in its previous status mandatory injunction was prayed. 3. The suits were contested by the defendants by filing written statement denying the averments made in the suits and claiming that they were in possession of their ancestral property and that the suits for permanent and mandatory injunction were liable to be dismissed. 4. The trial court framed four issues. On behalf of the plaintiffs, two witnesses were examined and four documents were exhibited and on behalf of defendants, two witnesses were examined. 5. After hearing the parties, the trial court came to the conclusion that the suit property was purchased by plaintiffs by registered sale-deed from father of the defendants vide Exhibit-1 on 06.12.1993 claiming the same to be owned by him and he had delivered the possession to the plaintiffs. The sale-deed, inter alia, contained signatures of the defendant No. 1 as well and, therefore, it was proved that with the execution of the sale-deed, the possession of the property was handed over to the plaintiffs and on 04.05.2014, the defendants removed the fencing and forcibly started digging foundation. 6. The sale-deed, inter alia, contained signatures of the defendant No. 1 as well and, therefore, it was proved that with the execution of the sale-deed, the possession of the property was handed over to the plaintiffs and on 04.05.2014, the defendants removed the fencing and forcibly started digging foundation. 6. The plea raised that for lack of possession, the suit for injunction was not maintainable was negated by the trial court observing that the oral evidence against the documentary evidence, cannot be accepted as the sale-deed clearly indicated handing over of the possession and that the plaintiffs have specifically indicated that they had received the possession, constructed the fence and four trolley stones were lying on the plots, which were removed by the defendants and despite detailed cross-examination, the said statement could not be shaken. Based on its finding, the trial court decreed the suits ordering for grant of injunction and removal of the foundation. 7. Feeling aggrieved, the defendants filed first appeals. The first appellate court reiterated the findings recorded by the trial court, dismissed the appeals. 8. In the present second appeals, learned counsel for the appellants emphasized that it was the specific case of the plaintiffs in the suits itself that on 04.05.2017, the defendants had trespassed over the plots in question and were raising construction. As such, once the plaintiffs themselves indicated that the defendants had trespassed over the plots of land, the suits for injunction was not maintainable and the plaintiffs were required to file suits for possession, however, both the courts below have not considered the said aspect of the matter and have merely based on the stipulation indicated in the sale-deed, have decreed the suits and reiterating the findings of the trial court, which is contrary to law and as such, give rise to substantial questions of law in the present appeals. 9. Reliance was placed on Anathula Sudhakar vs. P. Buchi Reddy by LRs & Ors. (2008) 4 SCC 594 . 10. Learned counsel for the respondents supported the judgment impugned. 9. Reliance was placed on Anathula Sudhakar vs. P. Buchi Reddy by LRs & Ors. (2008) 4 SCC 594 . 10. Learned counsel for the respondents supported the judgment impugned. It was submitted that the plaintiffs were in settled possession of the plots in question since the sale-deed was execute in their favour way back in the year 1993 and had constructed fence alongwith gate, however, their possession was sought to be disturbed by way of removing the fencing and digging the foundation by JCB, which action of the defendants, cannot be said to be their possession of the suit property so as to require the plaintiffs to file a suit for possession and, therefore, the suit for permanent and mandatory injunction was maintainable. 11. Submissions have been made that though the defendants claimed the suit property as ancestral and that they were in possession of the plots of land, however, they have failed to lead any evidence whatsoever to substantiate the said claim and, therefore, the appeals having no substance, do not give rise to any substantial question of law and the same are deserve to be dismissed. 12. I have considered the submissions made by learned counsel for the parties and have perused the material available on record as well as made available by learned counsel for the appellants. 13. The facts are not in dispute, wherein the plaintiffs in their suits, made very specific averments that the plots of land were purchased by them vide registered sale-deed dated 06.12.1993 from Lal Singh, father of the defendants and ever since, they were in peaceful possession of the plots in question, wherein they had put up a fence alongwith a gate and four trolley stones were lying therein. The plaintiffs then averred that on 04.05.2014 i.e. after passage of over 18 years since the transfer took place, the defendants trespassed over the plots and started digging foundation. 14. By leading evidence, the plaintiffs established the fact that the plots of land were in their possession since the sale-deed was executed in the year 1993 and the defendants, failed to establish their case that they were in possession, despite the sale-deed executed in the year 1993. As such, the plaintiffs were in settled possession, which was interfered with by the defendants by seeking to dig foundation with the aid of JCB after removing the fence set-up by the plaintiffs. 15. As such, the plaintiffs were in settled possession, which was interfered with by the defendants by seeking to dig foundation with the aid of JCB after removing the fence set-up by the plaintiffs. 15. Whether in circumstances of the present case, where the plaintiffs were in settled possession over plots of land for over 19 years, their possession was momentarily disturbed, was it necessary for them to file a suit for possession or a suit filed by the plaintiffs for permanent and mandatory injunction would be maintainable. 16. The law in this regard has been laid down by Hon'ble Supreme Court in the case of Anathula Sudhakar (supra). Learned counsel for the appellants relied on para-13.2 and 15 of the judgment, whereas learned counsel for the respondents, relied on observations made in para-14 as well as the law summarized in para-21(a) of the judgment. It would be appropriate to quote paras -13, 14, 15 and 21(a) of the judgment, 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. 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. 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 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 the 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. 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. 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 prove physical or lawful possession, either of himself or by him through his 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. 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." A perusal of the above indicates that Hon'ble Supreme Court referred to the general principles in para-13. In para-13.2 observed that 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. It was further observed that a person out of possession, cannot seek the relief of injunction simpliciter without claiming the relief of possession. In para-13.2 observed that 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. It was further observed that a person out of possession, cannot seek the relief of injunction simpliciter without claiming the relief of possession. However, in para-14 (underlined portion), Hon'ble Supreme Court, made observations in relation to a case of a trespasser without any claim to title and while summarizing the entire position in para-21(a), finally laid down that where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. 17. The said law laid down by Hon'ble Supreme Court clearly applies in favour of the plaintiffs-respondents, inasmuch as, the defendants, interfered with the lawful possession of the plaintiffs and within no time, the suit was filed. 18. A trespasser, who seeks to dispossess a lawful owner, cannot claim premium over an illegal activity by defending a suit for injunction by requiring the plaintiffs to seek possession of the suit property. The suit property was transferred by defendants' father to the plaintiffs and defendant No. 1 was himself a signatory to the said sale-deed, if the defendants intended to contend that the suit property was ancestral in nature and could not have been transferred by their father, they could either file a counter claim and/or seek an independent remedy of cancellation of the sale deed executed by their father, however, without taking recourse to legal means, attempts made to interfere with the settled possession of the plaintiffs, has rightly been dealt with by the two courts below by granting injunction. The submissions made by learned counsel for the appellants-defendants do not give rise to any substantial question of law. Consequently, the appeals filed by the appellants have no substance, the same are, therefore, dismissed.