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2023 DIGILAW 28 (HP)

Amar Dass v. Labh Singh

2023-01-07

SATYEN VAIDYA

body2023
JUDGMENT : Satyen Vaidya, J. Petitioners herein are plaintiff in Civil Suit No. 33 of 2014 pending before the learned Civil Judge, Sunder Nagar, wherein plaintiffs have claimed relief against the defendants/respondents herein to restrain them by way of permanent prohibitory injunction from causing any interference in the suit land by illegal threats to dispossess the plaintiffs. In alternative a decree for mandatory injunction have also been claimed. Plaintiffs also filed an application under Order 39, Rules 1 & 2 of the Code of Civil Procedure seeking interim injunction against the defendants in the same terms as prayer made in the suit. 2. The plaintiffs claimed themselves to be in settled possession of suit land since 1965-66. As per the averments made in the plaint, the suit land was sold to them/their predecessors-in-interest by way of oral sale by the predecessors-in-interest of defendants No. 4 to 11, in the year 1951-52. Besides vacant land, plaintiffs have also claimed possession over certain structures on the suit land. Plaintiffs have placed reliance on report submitted by a revenue official in pursuance to an application filed by the plaintiffs in the year 2014. On the strength of such report, plaintiffs have tried to impress upon the Court that they were in settled possession of the suit property. It is the case of parties that defendants No.4 to 11 have sold suit land to defendants No.1 to 3 by way of registered sale deed and mutation of such transaction also stood attested. 3. Defendants are contesting the suit and have denied the averments made in the plaint in totality. The possession of the plaintiffs over the suit land has specifically been denied. 4. On the application of plaintiffs for interim injunction, learned trial Court passed an order dated 11.07.2016 and directed the parties to the suit to maintain status quo qua nature and possession of the suit land till disposal of the main suit. 5. Defendants No.1 to 3 challenged the order passed by learned trial Court by filing an appeal under Order 43, Rule 1 (r) of the Code of Civil Procedure. The appellate Court has allowed the appeal of defendants No.1 to 3 and the order passed by learned trial Court has been set aside. 6. 5. Defendants No.1 to 3 challenged the order passed by learned trial Court by filing an appeal under Order 43, Rule 1 (r) of the Code of Civil Procedure. The appellate Court has allowed the appeal of defendants No.1 to 3 and the order passed by learned trial Court has been set aside. 6. Plaintiffs are before this Court by way of instant petition with a challenge to order dated 24.05.2019 passed by learned Additional District Judge, Mandi, camp at Sundernagar, in Civil Misc. Appeal No. 12 of 2012. 7. I have heard learned counsel for the parties and have also gone through the record carefully. 8. Learned trial Court had directed the parties to maintain status quo qua nature and possession of the suit land after holding the existence of prima facie case in favour of the plaintiffs on the basis of report dated 17.02.2014 submitted by a revenue officer and certain photographs placed on record. 9. Learned Appellate Court has set aside the order passed by learned trial Court by taking into consideration the facts, firstly that report dated 17.02.2014 of revenue officer had been issued without associating the defendants and hence could not be used against them; secondly that the presumption was attached to the revenue entries which supported the case of the defendants; thirdly that the plaintiffs had failed to place on record any document showing existence of any electricity or water connection having been installed in the suit land in the name of plaintiffs and lastly that the plaintiffs were not entitled for injunction in the absence of any challenge to the title of the defendants. 10. Admittedly, the possession of plaintiffs never came to be recorded in the revenue records. Plaintiffs have set up a plea of oral sale of the suit land in their favour, which has not been substantiated even prima facie on record. The absence of name of plaintiffs as possessors of the suit land since the alleged oral sale i.e. 1951-52, is totally unexplained. 11. Report dated 17.02.2014 of revenue officer, on the face of it suggests that the same was made on the basis of statement of plaintiffs and some other persons alleged to be residents of the area. The absence of name of plaintiffs as possessors of the suit land since the alleged oral sale i.e. 1951-52, is totally unexplained. 11. Report dated 17.02.2014 of revenue officer, on the face of it suggests that the same was made on the basis of statement of plaintiffs and some other persons alleged to be residents of the area. It is also evident from the report that the revenue officer had not ascertained the boundaries of the suit land so as to conclude as to qua which property he had recorded the statements. The defendants were admittedly not associated. Additionally, it can be seen that the mutation of sale had already been attested in respect of sale transaction of the suit land between defendants No.4 to 11 and defendants No.1 to 3. Mutation order being an appealable order under the H.P. Land Revenue Act, was not assailed by the plaintiffs in accordance with law. Assumingly, the application submitted by the plaintiffs to the SDO (Civil), Sundernagar, was treated an appeal, no final order was passed by the said authority. There is nothing on record to suggest whether the report submitted by Field Kanungo was ever accepted and acted upon by the competent authority. In this view of the matter, the reliance placed on such documents by learned trial Court has rightly been held by Appellate Court to be improper. 12. The revenue entries in respect of suit land have consistently been in favour of defendants. Report of revenue officer, as discussed above, definitely was not sufficient to rebut even prima facie the presumption attached to the revenue record under H.P. Land Revenue Act. 13. The fact that plaintiffs did not place on record any documents showing existence of electricity or water connection in the suit land also is a circumstance rightly considered against them. During the course of hearing of this petition, learned counsel for the petitioner was confronted by this Court as to why no such document was placed on record, it was replied that such document could be placed during the course of hearing of the suit in future. 14. It is further evident from the prayer made in the suit that the plaintiffs have not sought any relief against the defendants in respect of sale transaction between defendants 4 to 11 and defendants No.1 to 3 in respect of suit land. 14. It is further evident from the prayer made in the suit that the plaintiffs have not sought any relief against the defendants in respect of sale transaction between defendants 4 to 11 and defendants No.1 to 3 in respect of suit land. Similarly, there is no challenge to the mutation order recorded on the basis of aforesaid sale transaction. Dealing with almost identical fact situation this Court in CMPMO No. 87 of 2021, titled Sangeeta vs. Kalpana Sood, decided on 1st April, 2022, has held as under:- “7. Plaintiff has not challenged the title of the defendant. No relief has been sought seeking declaration as to the invalidity of ownership vested in Prem Chand through sale certificate or the subsequent transfers made firstly in the name of husband of the defendant and thereafter in the name of defendant. The vestment of title in Prem Chand and subsequently his successors never came to be challenged even by predecessor-in-interest of the plaintiff. 8. Once the title of the defendant is not questioned by seeking appropriate relief in accordance with law, plaintiff cannot be said to have right to seek injunction against the defendant. Reliance can be placed on judgment in Padhiyar Prahladji Chenaji (Deceased) through L.R.s Vs. Maniben Jagmalbhai (Deceased) Through L.R.s and Others, 2022 SCC online SC 258, where the Hon’ble Supreme Court, in almost identical facts, formulated the question as under:- “32 Therefore, the short question, which is posed for the consideration of this Court is, whether, in a case where the plaintiff has lost so far as the title is concerned and the defendant against whom the permanent injunction is sought is the true owner of the land, whether the plaintiff is entitled to a relief of permanent injunction against the true owner, more particularly, when the plaintiff has lost so far as the title is concerned and can thereafter the plaintiff be permitted to contend that despite the fact that the plaintiff has lost so far as the title is concerned, her possession be protected by way of injunction and that the true owner has to file a substantive suit claiming the possession.” The Hon’ble Supreme Court, thereafter, proceeded to answer aforesaid as under:- "35. Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, it is noted that the registered sale deed in favour of defendant No.1 is dated 17.06.1975 and thereafter immediately the name of defendant No.1–purchaser was mutated in the Revenue record, which continued till the filing of the suit and the name of defendant No.1 is shown as an owner and cultivator and even the crop grown is also shown and when the plaintiff claims that she is in possession and cultivating the land, she would have known the above facts, if she had exercised due diligence and therefore as observed by this Court, the plaintiff(s) can be said to have deemed knowledge of the title as well as possession of defendant No.1. It is to be noted that even in the registered sale deed, it was mentioned that the possession of the entire land in question has been handed over to defendant No.1 – purchaser. At this stage, it is required to be noted that the execution of the registered sale deed and the payment of full sale consideration mentioned in the registered sale deed has been believed and accepted by all the courts below. Therefore, there was no reason for the trial court not to believe the averments in the registered sale deed of handing over the possession to the defendant No.1 – purchaser. The relief of permanent injunction sought by the plaintiff as such was a consequential relief, which shall be discussed herein below. 36. Therefore, once the suit is held to be barred by limitation qua the declaratory relief and when the relief for permanent injunction was a consequential relief, the prayer for permanent injunction, which was a consequential relief can also be said to be barred by limitation. It is true that under normal circumstances, the relief of permanent injunction sought is a substantive relief and the period of limitation would commence from the date on which the possession is sought to be disturbed so long as the interference in possession continuous. However, in the case of a consequential relief, when the substantive relief of declaration is held to be barred by limitation, the said principle shall not be applicable. 37. However, in the case of a consequential relief, when the substantive relief of declaration is held to be barred by limitation, the said principle shall not be applicable. 37. Even otherwise on merits also, the Courts below have erred in passing the decree of permanent injunction restraining the defendant No.1 from disturbing the alleged possession of the plaintiff. Assuming for the sake of argument that the plaintiff is found to be in possession, in that case also, once the plaintiff has lost so far as the relief of declaration and title is concerned and the defendant No.1 is held to be the true and absolute owner of the property in question, pursuant to the execution of the sale deed dated 17.06.1975 in his favour, the true owner cannot be restrained by way of an injunction against him. In a given case, the plaintiff may succeed in getting the injunction even by filing a simple suit for permanent injunction in a case where there is a cloud on the title. However, once the dispute with respect to title is settled and it is held against the plaintiff, in that case, the suit by the plaintiff for permanent injunction shall not be maintainable against the true owner. In such a situation, it will not be open for the plaintiff to contend that though he/she has lost the case so far as the title dispute is concerned, the defendant – the true owner still be restrained from disturbing his/her possession and his/her possession be protected. In the present case, as observed hereinabove and it is not in dispute that the suit filed by the plaintiff for cancellation of the registered sale deed and declaration has been dismissed and the registered sale deed in favour of the defendant No.1 has been believed and thereby defendant No.1 is held to be the true and absolute owner of the suit land in question. The judgment and decree passed by the trial court in so far as refusing to grant the relief for cancellation of the registered sale deed and declaration has attained finality. Despite the fact that the plaintiff has lost so far as the title is concerned, still the Courts below have granted relief of permanent injunction against the defendant No.1 – the absolute owner of the land in question, which is unsustainable, both, on law as well as on facts. Despite the fact that the plaintiff has lost so far as the title is concerned, still the Courts below have granted relief of permanent injunction against the defendant No.1 – the absolute owner of the land in question, which is unsustainable, both, on law as well as on facts. An injunction cannot be issued against a true owner or title holder and in favour of a trespasser or a person in unlawful possession.” 15. The aforesaid exposition applies to the facts of the case also. In the absence of any challenge to the title of the defendants, simplicitor prayer for prohibitory injunction cannot be said to be maintainable. It is also equally settled that the relief which cannot be granted in the main suit, can also not be granted by way of interim relief. 16. Further, the learned Appellate Court has also rightly held that the order of status quo passed by learned trial Court, without prima facie holding as to which of the party was in possession, was neither legal nor equitable order in the facts and circumstances of the case. This Court has found no reason to differ with the findings rendered by the learned Appellate Court. 17. In result, there is no merit in the instant petition and it is dismissed accordingly. Consequently, order dated 24.05.2019, passed by learned Additional District Judge-1, Mandi camp at Sundernagar, in Civil Misc. Appeal No. 12 of 2016 is upheld. All pending applications also stand disposed of.