A person in long possession of property without any right, title, grant, lease - Such possession does not give any right to the person to retain possession against true owner and not entitled to injunction

PUNJAB AND HARYANA HIGH COURT

Before :- R.L. Anand, J.

C.R. No. 1666 of 1999. D/d. 21.7.2000.

Jit Singh - Petitioner Versus Sardara Singh - Respondents

For the Petitioner :- Mr. Arun Palli, Advocate.
For the Respondents :- Mr. Vijay Sharma, Advocate.

JUDGMENT

R.L. Anand, J. - Whether long possession per se, if it is without valid title or right to occupy the land/property, gives a right to the occupier to retain such possession against a rightful/lawful owner is going to be adjudicated in the present revision as this aspect of the case is being confronted by the subordinate courts in different litigations and in the High Court also many litigations on this aspect of the law are being entertained.
2. The facts of the case are not much in dispute but still it is necessary on my part to reproduce some of the facts to appreciate the above proposition, which I have propounded in the earlier portion of this judgment.
3. The present revision has been filed by Jit Singh and it has been directed against the judgment dated 12.3.1999 passed by the Additional District Judge, Patiala, who set aside the order dated 21.2.1998, passed by the Additional Civil Judge (Senior Division), Samana, who allowed the application of the petitioner under Order 39 Rules 1 and 2, CPC, and ordered that till the disposal of the suit, the possession of the petitioner should not be disturbed by the defendants.
4. Jit Singh, petitioner, filed a suit for injunction alleging that he is in possession of the suit land bearing rectangle No. 17 khasra No. 15/2 (5-2), for the last more than 35/40 years since the time of consolidation. The defendants have no right, title or interest in the suit land and they have threatened to take forcible possession. On these broad allegations, the plaintiff-petitioner filed the suit for permanent injunction praying that he may not be dispossessed from the suit land except in due course of law and along with the plaint, he also filed an application under Order 39 Rules 1 and 2, CPC, praying that during the pendency of the suit, his possession should not be disturbed.
5. The suit was contested by the defendants. They denied each and every allegation. The case set up by the defendants was that they are the owners of the suit land. The entries in the revenue record showing the possession of the plaintiff are factually and legally wrong and the plaintiff has manipulated these entries in connivance with the revenue officials. They stated that since they are the rightful owners of the land, therefore, no injunction can be issued against them. The defendants also opposed the application under Order 39 Rules 1 and 2, CPC, on these very grounds.
6. The parties placed some documents before the trial Court and the learned Additional Civil Judge (Senior Division), vide order dated 21.2.1998, allowed the application for the reasons given in paras 6 and 7 of the order, which read as under :-

"6. The copy of the jamabandi of the year 1991-92 placed on the record shows that Titar Singh along with respondents/defendants are owners in possession of the suit land and in this jamabandi of the year 1991-92 present applicant/plaintiff Jit Singh son of Tota Singh has been shown to be in possession of the disputed khasra No. 117//15/2(5-2) as Gair Marusi. Similarly, the khasra girdawari of the years 1992-92 to 1996-97 also shows the present applicant/plaintiff to be in possession of the suit land as Gair Marusi. Thus, the revenue record establishes the fact on the record that the applicant/plaintiff is in possession of the suit land since 1991-92. No counter revenue record has been placed on the record by the respondents/defendants to prove that the respondents/defendants are in possession of the suit land. It was simply contended by the learned counsel for the respondents/defendants that no injunction order can be passed against the lawful owner as the respondents/defendants being lawful owner of the suit land and as such the present application may be dismissed. To support its contention learned counsel for the respondents/defendants also cited the authority of Hon'ble Supreme Court of India in case Sri Hanumanthappa v. Sri Muninarayanappa, reported in 1997(1) Civil Court Cases 90 : 1997(1) RCR(Civil) 697(SC) in which it was held as under :-

"Injunction - No injunction can be issued against a lawful owner of the property."

The above cited authority referred to by learned counsel for the respondents/defendants is not applicable to the present case because in the above mentioned authority the respondent had purchased the land belonging to his vendors including 39 guntas of land under registered sale deed dated February 24, 1986. It was held by the Hon'ble Supreme Court that undoubtedly the respondent was not a party to the compromise decree dated 29.2.1990. Since he purchased the property pending the suit property, a compromise decree having been executed by the parties in which the right of the appellant to the extent of 39 guntas was crystallized and he was duly put in possession. The facts of the present case are totally different from the above mentioned authority because in the instant case the applicant/plaintiff is consistently in possession of the suit property as can be manifested from the revenue record. Even if the possession of the applicant/plaintiff over the suit property has been recorded as Gair Marusi, this court is of the view that the applicant/plaintiff cannot be dispossessed by respondents/defendants except by recourse of law. On this point I am supported with the decision of Hon'ble Supreme Court of India in case Krishna Ram Mahale (dead) by his LRs. v. Mrs. Shobha Venkat Rao, 1990(1) R.C.R.(Rent) 525 : 1990 Civil Court Cases 365 (SC).

7. So, it is well settled law that a person who is in possession even without title is entitled to protect his possession of the suit property as against all the persons who do not have a better title than himself. If the respondents/defendants in the present suit are owners of the suit property they can dispossess the present applicant/plaintiff only in due course of law and not by use of force. Thus a prima facie case is made out in favour of the present applicant/plaintiff and balance of convenience also lies heavily in favour of the applicant/plaintiff as the applicant/plaintiff is in possession of the suit land for the last so many years and further I am of the view that if the respondents/defendants will dispossess the applicant/plaintiff by means of force or through any other illegal means, the applicant/plaintiff will suffer an irreparable loss or injury. Thus, the ex parte stay order passed by this Court is hereby confirmed."

7. Aggrieved by the above order, the defendants filed an appeal under Order 43, CPC, before the Court of Additional District Judge, Patiala, who vide judgment dated 12.3.1999 allowed the appeal and set aside the order of the Additional Civil Judge and dismissed the application under Order 39 Rules 1 and 2, CPC, by holding that no injunction can be granted against the true owner, for the reasons given in paras 7 to 12, which are as under :-

"7. The learned counsel for the plaintiff/respondent No. 1 has cited two authorities viz Bhupinder Singh v. Rana Kamarpal Singh, 1997(3) Recent Civil Reports 428 (P&H) and Guru Nanak Education Trust v. Balbir Singh, 1995(3) Recent Revenue Reports 722 (Punjab and Haryana High Court) to canvass the point that the lower Appellate Court in appeal against interim relief can interfere only when it comes to the conclusion that the order of the trial Court is in clear violation of law or the findings on issue of prima facie case, balance of convenience and irreparable injury are perverse and against the settled principles of law. He has contended that the appellate court has no jurisdiction to firm (form ?) its own different opinion without reversing the findings of the trial Court. He has also contended that the scope of interference of the Appellate Court is very limited only when it is found that the lower Court order is arbitrary, perverse, capricious or against legal principles. He has contended that the possession of the plaintiff is shown by consistent entries in the revenue record evidenced by copy of the jamabandi for the year 1991-92 and khasra girdawari entries from rabi 1992 onwards, copies of which were placed on the file of the lower Court and that the plaintiff has the right to protect his possession till he is ejected therefrom in due course of law. He has contended that the order of the learned lower court is, therefore, based on correct position of law and appreciation of facts and should not be interfered with.

8. On the thoughtful consideration of the aforesaid contentions of learned counsel for plaintiff/respondent No. 1 as also of the contentions raised by learned counsel for appellants, I am of the opinion that the order under appeal cannot be sustained because it is in clear violation of the settled law. The position of law by now is well settled by the Apex Court as well as by the rulings of different Hon'ble High Courts. In Mahadeo Savlaram Shelke v. The Pune Municipal Corporation, 1995(2) Civil Court Cases 258 : 1995(2) RRR 66(SC), the Apex Court has clearly given a mandate that a person in unlawful possession has no legal right to claim injunction against the true owner. This position has been re-affirmed in Premji Ratansey Shah v. Union of India, 1995(3) Recent Revenue Reports 11 (Supreme Court of India), Gram Panchayat village Rukari v. Singh Ram, 1998(3) Civil Court Cases 577 (Punjab and Haryana High Court), Gurcharan Singh v. District/Chief Agricultural Officer, Jalandhar, 1997(1) Civil Court Cases 201 : 1997(1) RCR(Civil) 1 (Punjab and Haryana High Court), Om Parkash v. State of Haryana, 1998(3) Recent Civil Cases 311 (Punjab and Haryana High Court), Harniv Sandhu v. Sandeep Singh Sandhu, 1998(3) Civil Court Cases 676 : 1998(3) RCR(Civil) 564 (Punjab and Haryana High Court), Smt. Gur Dai v. Arjan Singh (died) through LRs., 1997(1) Punjab Law Reporter 666 : 1997(1) RCR(Civil) 14 (Punjab and Haryana High Court), Mirza Mohammed Yousuf Baig v. M/s. Deccan Enterprises, Bangalore and others, 1997 (Suppl.) Civil Court Cases 276 (Karnataka High Court), Osmania University v. Dr. Rajeshwar Rao and others, 1990 Civil Court Cases 21 (Andhra Pradesh High Court) and M/s. G.M. Modi Hospital and Research Centre, Medical Science v. Shankar Singh Bhandari and others, 1996(1) Civil Court Cases 325 : 1996(1) RRR 601 (P&H)(Delhi High Court). In fact in Gurcharan Singh v. District/Chief Agricultural Officer, Jalandhar's case (supra) it has been observed that person having no interest or right in the property or where his possession is not lawful, is not entitled to injunction. In Harniv Sandhu's case (supra) it has been clearly held that where the party seeking possession fails to produce any legal documents or to show valid reason as to on what basis he took over the possession of the disputed property, he is not entitled to the discretionary relief of temporary injunction because the courts do not protect the possession of a trespasser against the true owner. In Mirza Mohammed Yousuf Baig's case (supra), it has been held that the party must show in what capacity he came into possession of the property - whether as tenant or an licensee or adverse possession and relief to it is to be refused where it fails to show its legal right to possession.

9. In Osmania University v. Dr. Rajeshwar Rao's case (supra), a very important statement of law has been made to the following effect :-

"Merely because a true owner cannot evict a trespasser forcibly, it does not follow that a trespasser can obtain injunction as of right against the true owner. The remedy of permanent or temporary injunction is, it is well settled, basically an equitable relief and the plaintiff must come to court with clean hands. The plaintiff cannot therefore normally be permitted to seek the aid of the court to protect his unlawful possession for seeking injunction against the true owner."

10. In M/s. G.M. Modi Hospital and Research Centre Medical Science v. Shankar Singh Bhandari's case (supra), it is again clearly stipulated that a person in illegal possession is not entitled to injunction.

11. In the present case as per the revenue record, the appellants and respondent No. 2 are co-owners of the suit land. The plaintiff has failed to prima facie show as to how he entered into possession of the suit land. He does not say that he entered into it as tenant, as licensee or that his possession is adverse. Merely because the appellants and respondent No. 2 as true owners cannot evict the plaintiff from the suit land forcibly, it does not follow that plaintiff as trespasser can obtain injunction against them as of right. The remedy of permanent or temporary injunction as per the aforesaid case law in Osmania University v. Dr. Rajeshwar Rao's case (supra), is an equitable relief and to seek such a relief, the plaintiff has to come to the court with clean hands. He cannot be permitted to seek the aid of the court to protect his unlawful possession by resorting to the remedy under Order 30 Rules 1 and 2 of the CPC. On the face of it, the possession of the plaintiff is illegal and he is, therefore, not entitled to the injunction against the appellants and respondent No. 2 who are the true owners, as per the settled law cited above.

12. Since in the present case, the order under appeal is clearly in violation of the settled principles of law that no injunction can be granted against the true owner, it cannot be legally sustained. The appeal is, therefore, accepted and the impugned order is set aside and the application of the plaintiff for temporary injunction is dismissed. It is made clear that observations made in this judgment shall have no bearing on the decision of the suit on merits......"

8. In this manner, the plaintiff-petitioner is aggrieved by the judgment of the first appellate Court and he has come in the present revision for the reversal of the judgment of the first appellate court.
9. I have heard the counsel for the parties and with their assistance have gone through the record of this case.
10. Counsel for the petitioner has relied upon a number of judgments and canvassed that it is proved on the record that the plaintiff is in established and long possession over the land in question and in this view of the matter, his possession has to be protected even against the true owner. The first judgment relied upon by the counsel for the petitioner in Krishna Ram Mahale (dead) by his L.Rs. v. Mrs. Shobha Venkat Rao, 1990 Civil Court Cases 365 (SC), wherein it was observed as follows :-

"It is well settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. If any authority were needed for that proposition we could refer to the decision of a Division bench of this court in Lallu Yashwant Singh v. Rao Jagdish Singh, AIR 1968 S.C. 620. This Court in that judgment cited with approval the well known passage from the leading privy Council case of Midnapur Zamindary Company Limited v. Naresh Narayan Roy, AIR 1924 PC 114 : 23 ALJ 76, where it has been observed :

"In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court."

11. Reliance was also placed by the counsel for the petitioner to para-9 of this judgment, where it was observed as under :-

"The proposition was also accepted by a Division Bench of this court in Ram Rattan v. State of Uttar Pradesh, 1977(1) SCC 188 : AIR 1977 SC 619. The Division Bench comprising of three learned Judges held that a true owner has every right to dispossesses or throw out a trespasser while he is in the act or process of trespassing but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances, the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies under the law."

12. Counsel for the petitioner, then, relied upon the observations made in AIR 1968 S.C. 620 and AIR 1977 SC 619, which were also referred to in the aforesaid judgment. I need note quote the observations of the Hon'ble Supreme Court in these judgments, as the same are, in fact, incorporated in Krishna Ram Mahale's case (supra).
13. The entire stress of the counsel for the petitioner was that the petitioner is in settled possession of the land in question. He is not in the process of trespassing the land. In these circumstances, even if it is assumed for the sake of arguments that the possession of the petitioner is unlawful, he cannot be evicted from the land in question except in due course of law. Counsel for the petitioner further submitted that the trial Court had already granted the relief in favour of the petitioner and, in these circumstances, it was not open to the first appellate court to disturb the discretion which has been validly exercised by the trial Court in favour of the petitioner. It was also submitted by the counsel for the petitioner that the petitioner is ready to conclude his entire evidence before the trial Court within such period as may be specified by the High Court and till the trial is concluded the possession of the petitioner should be protected.
14. On the contrary, counsel for the respondents submitted that if the reasons adopted by the trial Court have been validly set aside by the first appellate Court by holding that the learned trial Court has committed a patent illegality, such findings of the first appellate court, if based on correct appreciation of facts, should not be lightly disturbed by the High Court until and unless the High Court comes to the conclusion that the first appellate Court has committed a glaring irregularity or illegality or that the impugned order is perverse. It was also submitted by the counsel for the respondents that the case of the plaintiff was that be was in established possession for the last 30/35 years and since consolidation in the village. There is no, prima facie, proof in this regard. In the two jamabandis for the years 1990 and 1991, the possession of the plaintiff has been shown as Gair Marusi but there is no evidence to show that the plaintiff ever paid any rent to anybody. On the contrary, the defendants are the rightful owners of the property and their possession was also shown at one point of time. If the plaintiff has been able to obtain some fictitious entries in his favour with the help of the revenue authorities, and under the garb of those revenue entries, he is shown to be in possession, such possession should not be protected especially against the true owners who had the right to recover the land. It was also pleaded by the counsel for the respondents that the relief of injunction is discretionary in nature and a person who approaches the court with soiled hands by concealing the real facts, should not be given the concession of injunction, otherwise, it will create hardship to the real owner.
15. I have considered the submissions of the counsel for the parties and I am of the considered opinion that this revision is totally devoid of any merit.
16. Section 115, C.P.C., lays down as under :-

"115. Revision. - (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears -

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested;

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity;

the High Court may make such order in the case as it thinks fit :

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where -

(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings, or

(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

Explanation. - In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding."

17. I have already reproduced above the valid reasons given by the first appellate Court in allowing the appeal. The scope of section 115, CPC, was considered by the Hon'ble Supreme Court in The Managing Director (MIG), Hindustan Aeronautics Ltd. v. Ajit Prasad Tarway, AIR 1973 SC 76, where it was observed that the High Court should not interfere even if the order is right or wrong or in accordance with law or not, unless, it has exercised its jurisdiction illegally or with material irregularity. In para 5 of the judgment, it was held as follows :-

"5. In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate court. It is not the conclusion of the High Court that the first appellate court had no jurisdiction to make the order that it made. The order of the first appellate Court may be right or wrong; may be in accordance with law or may not be in accordance with law, but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate Court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Civil Procedure Code. See the decisions of this Court in Pandurang Dhoni v. Maruti Hari Jadhav, 1966(1) SCR 102 : AIR 1966 SC 153, and D.L.F. Housing and Construction Co. (P) Ltd., New Delhi v. Sarup Singh, 1970(2) SCR 368 : AIR 1971 SC 2324."

18. Now, it is to be seen what the case has been made out by the petitioner in the trial Court. According to the petitioner, he is in physical possession of the property since the date of consolidation, i.e. for the last more than 35/40 years. The land was in the nature of a tibba and he spent huge amount and made it cultivable and it was in the knowledge of the defendants. According to the petitioner, no order or decree for ejectment has been passed against him and, therefore, he is entitled to retain the possession. Further that he is a Gair Marusi.
19. There is not an iota of evidence to suggest that the possession of the plaintiff is 35/40 years long nor there is any evidence, prima facie, to show that 35/40 years back, the name of the plaintiff was entered in any khasra girdawari, either as a tenant or as a licensee or on account of a trespasser or his possession was recorded as forcible against the true owners. In the column of ownership, the name of the plaintiff does not appear. Rather, in the jamabandi for the year 1991-92, Tittar Singh along with the defendants has been shown as owner in possession of the suit land. In this very jamabandi, the possession of the plaintiff has also been shown in disputed khasra No. 15/2 of rectangle No. 170 as Gair Marusi. I have just stated above that there should be some evidence to show that the plaintiff was in possession of the suit land as Gair Marusi. The plaintiff further alleges that in the khasra girdawaris for the years 1992-92 to 1996-97, his possession has been shown as Gair Marusi but there is no evidence on the record as to whom the plaintiff had been paying the rent, under what circumstances the property was let out to him and who let out the same. At the most, we can say that with regard to the disputed khasra No. 15/2, the plaintiff's name figures as Gair Marusi in the revenue record but so far as the ownership aspect is concerned, the name of the petitioner nowhere figures.
20. Now, it is to be answered whether such a person who is in occupation of the land/property without any right, valid title, grant, lease or licence, should be protected and whether any injunction in favour of such a person should be granted or not. We all know that injunction is an equitable relief. The Hon'ble Supreme Court in Premji Ratansey Shah v. Union of India, 1995(3) RRR 11, held that injunction is a personal right and the plaintiff must have personal interest in the matter and that injunction cannot be issued against true owner. It was also observed by their Lordships that the injunction cannot be issued in favour of a trespasser or a person who has gained unlawful possession as against the owner and the pretext of dispute of identity cannot be an excuse to claim injunction against true owner.
21. The Hon'ble Supreme Court, in fact, always wanted to protect the rights of a true owner. The Hon'ble Supreme Court also wanted to protect the rights of a trespasser against other person who also claims possession over the property but the Supreme Court never wanted to protect the rights of a trespasser against the true owner. That is why, it is said that a trespasser can protect his possession against the entire world except the true owner.
22. This proposition of law was further answered by the Hon'ble Supreme Court in Mahadeo Savlaram Shelke v. The Pune Municipal Corporation's and Sri Hanumanthappa's cases (supra) where it was observed that a person who is in unlawful possession of the property has no legal right to claim injunction against the true owner.
23. In Saraswati and others v. Hazari Lal and others, 1990 CCC 21 : 1990(1) RRR 85 (P&H), the Andhra Pradesh High Court held that merely because a true owner cannot evict a trespasser forcibly, it does not follow that a trespasser can obtain injunction as of right against the true owner. The remedy of permanent or temporary injunction is, it is well settled, basically an equitable relief and the plaintiff must come to court with clean hands. The plaintiff cannot therefore normally be permitted to seek the aid of the court to protect his unlawful possession for seeking injunction against the true owner.
24. In Prataprai N. Kothari v. John Braganza, 1999(3) RCR (Civil) 119, the Hon'ble Supreme Court held as follows :-

"A person who has been in long continuous possession can protect the same by seeking injunction against any person in the world other than the true owner. Even the owner of property can get back his possession only by resorting to due process of law."

25. This decision was given by three Hon'ble Judges of the Apex Court. I am laying stress on this judgment because, it was one of the arguments of the counsel for the petitioner that the decisions being relied upon by him were delivered by three Hon'ble Judges of the Supreme Court and there is no dissenting view in this regard. In my opinion, the observations given by the Hon'ble Supreme Court in the earlier decisions was in a different context and at all times the Hon'ble Supreme Court wanted to protect the interest of the rightful owner.
26. In Lallu Yashwant Singh v. Rao Jagdish Singh's case (supra), the possession of the plaintiff at the first instance was under a valid right and, later on, that right extinguished. In those circumstances, it was observed that the possession of the trespasser should be protected. In the present case, there is nothing on the record to show under what circumstances, the plaintiff got the possession of the suit land as Gair Marusi.
27. In M/s. G.M. Modi Hospital and Research Centre, Medical Science v. Shankar Singh Bhandari and others (supra) it was observed that a person in illegal possession is not entitled to injunction. In this case, it was held that the labourers who occupied the land had no relationship with the Hospital either as licensee or lessee and on the competition of the work, they were liable to evict the hut. In the present case also, the plaintiff has not been able to establish his jural relationship.
28. In Mirza Mohammed Yousuf Baig v. M/s. Deccan Enterprises, Bangalore and others (supra), it was held that the party must show in what capacity he came into possession of property; whether as a tenant or as licensee or in adverse possession, and on failing to prove his possession and his legal right to occupy the property, the relief of injunction which is totally discretionary, should not be granted. In the present case, the first appellate Court has rightly appreciated the correct position of law and, in these circumstances, the High Court will be slow to interfere with the same.
29. The judgment of Ram Rattan v. State of Uttar Pradesh (supra), if read in depth will not help the case of the petitioner. The Hon'ble Supreme Court in this very judgment held that it may not be possible to lay down a rule of universal application as to when the possession of a trespasser becomes complete and accomplished, yet one of the tests is to find out who had grown the crop on the land in dispute. I have tried to hunt out the facts of the case in the right perspective and have come to the conclusion that the possession of the plaintiff is not under any valid licence, lease or grant nor his possession has matured adverse to the disadvantage of the contesting defendants. Where is the snag in the order of the trial Court. In para-7 of the order dated 21.2.1998, the learned Additional Civil Judge held that "a person who is in possession even without title is entitled to protect his possession of the suit property as against all the persons who did not have a better title than himself." Meaning thereby, that a person with a better title can successfully resist an application of a trespasser who wants to protect the possession under the garb of his simple possession without any title.
I do not find any illegality or perversity in the order of the first appellate Court. Dismissed with costs. Counsel fee Rs. 500/-.
31. The observations made in this order shall confine only to this order and shall not have any bearing no the merits of the case.

Revision dismissed.