Teerath Lal vs Motilal Sultania
2023 Latest Caselaw 27205 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:64617
 
Reserved
 
Court No. 19
 
Case :- SECOND APPEAL No. - 311 of 1984
 
Appellant :- Teerath Lal
 
Respondent :- Motilal Sultania
 
Counsel for Appellant :- S.M.Nasir,Amir Ahmad,Amir Ahmad Ansari,Syed Mohammad Nasir,Syed Mohammad Parvaiz Yousif
 
Counsel for Respondent :- H.S.Sahai,B.K. Chaudhary,G C Sinha,Girish Chandra Sinha,I.D. Shukla,Onkar Pandey,R.K.Chaudhary,S.K. Mehrotra,U.S.Sahai
 

 
Hon'ble Jaspreet Singh,J.

1. This is the defendant's second appeal under Section 100 C.P.C. assailing the judgment of reversal passed by the Lower Appellate Court dated 15.03.1984 whereby the Suit of the plaintiff-respondents bearing No. 310 of 1975 was dismissed by the Trial Court by means of judgment and decree dated 01.02.1978 which has been set aside by the Lower Appellate Court and the suit was decreed.

2. The instant second appeal was admitted by this Court on 09.05.1984 on questions of law enumerated in the memo of second appeal at serial nos. 1 to 4 and 6 which read as under:-

"(I) Whether the suit on the basis of title and for possession under Ejat Nama dated 06-04-60 for Rs. 30/- allegedly Exka 15 issued by Gram Sabha Jalalpur District Faizabad, the said Exka 15 having been rejected by the Trial Court for cogent reasons and the plaintiff's suit for possession was rightly dismissed, the lower court acted against the admitted principle of law that without discussing whether Ka-15 is proved or not, upset the Trial Court order and decreed the plaintiff's suit that his title is proved and decreed the suit for possession, which cannot be maintained?

(II) Whether the suit being for declaration of title and possession, plaintiff having failed to establish that plot No. 398 belong to Gaon Samaj and failed to produce and prove required Procedure under Z.A. Act, and gram Samaj Mannual for transfer of Gaon Samaj land and having failed to produce Ram Newal Scribe and Resho Ram Pradhan on Gaon Samaj resolution in his favour, and also due to grave contraction in plaintiff's statement in respect of Ka-15 when he stated contrary to fact that boundary and description noted in Ijazat Nama, trial court rightly rejected Ka-15, Ijazatnama, trial court rightly rejected Ka-15 Ijazat Nama and dismissed the plaintiff's suit. Lower Court acted illegally in exercise of his jurisdiction that without controverting the trial court findings on Ex. Ka-15, still allowed the appeal and decreed the plaintiff's Suit?

(III) Whether the Lower Appellate Court acted illegally and against settled judicial principles of law in first dealing with Defendant's case whether defendant is owner and in possession to the property in dispute and first holding that Defendant disputed property does not belong to Dharam Shala, as the plaintiff is recorded Bhumidhar of Plot No. 399M and since disputed property i.e. Plot No. 398 is continuous single parcel it is logical to hold that rest is with plaintiff hence the plaintiff is entitled to possession without discussing the basis of Plaintiff's claim based on Ka-15 Ijazat Nama which has not been proved and rejected by the trial Court which finding still stands uncontroverted render orders of Lower Court is illegal and liable to be set aside?

(IV) Whether the lower court acted illegally and with material irregularity in exercise of its jurisdiction against the settled principles of law laid down in 1939 P.C. 201-Kartar Singh Vs. Dayal Singh, that plaintiff should stand on legs and not weakness of defendants case?

(VI) Whether the Commissioner's report in respect of plot No. 398 was misread and mis-interpreted by the lower court, the report which fully support defendant's case as pleaded by the plaintiff; that after taking Ijazat Nama from Gram Sabha, Jalalpur on 06.04.1960, he filled the northern boundary only of Plot No. 398?"

3. The facts giving rise to the instant appeal are being noticed in order to undisputed the controversy and to answer the questions of law as noted hereinabove.

4. For the sake of convenience, the Court will be referring to the parties as they were originally impleaded in the plaint.

5. Sri Moti Lal Sultania filed a suit for permanent injunction in the Court of Munsif, Akbarpur in District Faizabad against Teerath Lal, Hari Lal, Daya Ram, Radhey Shyam, Badri Prasad and Mithai Lal.

6. It was the case of the plaintiff that he was the recorded bhumidhar of Plot No. 399 M and Plot No. 400 M situate in Village Jalalpur Dehat Pargana Surhupur, Tehsil Akbarpur District Faizabad. It was also pleaded that Plot No. 398M was acquired by the plaintiff from the Gramsabha of Jalalpur on 06.04.1960 and since then since the plot nos. 399 M and 400 M which were situate on the southern side of the plot no. 398 M, hence, they were merged and the plaintiffs started raising constructions for the purposes of building shops.

7. It was also pleaded that the plaintiff had already dug the foundation and had raised a brick wall which was existing since about 15 years and thus the plot nos. 398 M was amalgamated with Plot No. 400M and on the southern side thereof, the plaintiff had planted his grove. On the northern side, he had made a small room with a tin shed roof and a Dalan, which was occupied by a tenant and on the eastern side towards the road, the plaintiff had constructed a platform (chabootara) and the spot position as indicated was shown in the site plan forming part of the plaint in suit.

8. It was further pleaded that the defendants who did not have any right title or interest in respect of the property in question but as they were influential people having muscle power, they started threatening the plaintiff to forcibly occupy the property of the plaintiff and the constructions raised by the plaintiff would be demolished.

9. It is in the aforesaid backdrop that the suit for permanent injunction was filed in the Court on 17.10.1975.

10. During the pendency of the said suit, the plaintiff moved an application for amendment to introduce the plea that on 18.10.1975, the defendants had taken forcible possession of the disputed property and also raised a new wall. In light thereof, the plaintiff amended the plaint and sought an additional relief of mandatory injunction directing the defendants to remove the illegal constructions within such day and time to be fixed by the Court failing which the same may be removed through the process of the Court.

11. The defendant nos. 1 and 2 filed their written statement wherein the plaint averments were denied. It was specifically stated that the plaintiff had no right, title or interest in respect of Plot No. 398M and neither the Gramsabha Jalalpur had granted any permission to the plaintiff in respect of the same rather the said property bearing No. 398 was the old Abadi of the Village which was in their continuous possession prior to the abolition of Zamindari.

12. It was also pleaded that the spot position as indicated in the site plan was also not correct rather at the site there was a well made by Sri Raghuvar son of Manorath and there was also an Inn (Dharamshala) and at the place where the plaintiff had shown his alleged platform i.e. Chabootara that was also of the defendant who had a roof.

13. It was also pleaded that the said Inn (Dharamshala) had been existing since last 65 to 70 years and that the defendants were the descendants of Raghuvar son of Manorath.

14. In order to protect the Dharamshala and noticing the developments in the Tehsil of Jalalpur, the defendants had raised the boundary wall and it was in occupation of the defendants. A feeble plea of adverse possession was also taken by the defendants, however, it was primarily urged that the property belonged to the defendants and since the defendants were attempting to encroach upon the same, the suit had been filed by the plaintiff on the basis of incorrect facts and accordingly the same was liable to be dismissed.

15. In reply to the amended plea of the plaint, the defendant stated that as already clarified in the written statement itself that the said constructions were existing prior to the institution of the suit rather was there since many years ago, accordingly, the plea seeking the relief of mandatory injunction also deserves to be rejected.

16. Upon the exchange of pleadings, the Trial Court framed six issues, however, the relevant issues upon which the suit was contested were:-

(i) Whether the suit-land lay on Plot No. 398 area measuring 18 Dhur, Plot No. 399 area 6 Biswa, 8 Dhur, Plot No. 400 area 13 Biswa as alleged.

ii) Whether the plaintiff is the bhumidhar of the suit-land?

iii) Whether the defendants are the owner of the land?

17. The parties led their evidence and the Trial Court in its judgment dated 14.08.1980 noticed that none appeared to contest on behalf of the defendants no. 3 and 7 (actually should have been defendant no. 3 instead of 7) and against the said defendants, the suit proceeded ex-parte.

18. The Trial Court found that the disputed property was merged with Plot No. 399M and 400. It further went on to consider the evidence and found that the plaintiff has not been able to establish his title over plot no. 398 and the existence of the Dharamshala was admitted to the plaintiff and its witnesses since last 40 years, thus, he could not even establish his possession.

19. The Trial Court also recorded a finding that the plaintiff was not in possession of the disputed property since last 12 years and thus the suit of the plaintiff came to be dismissed by means of judgment and decree dated 14.08.1980.

20. The plaintiff being aggrieved against the judgment and decree of the Trial Court preferred a Regular Civil Appeal No. 387 of 1980 and this appeal has been allowed by the Lower Appellate Court by means of judgment and decree dated 15.03.1984, as a result, the plaintiff's suit was decreed and the defendants were directed to vacate the possession of the area shown by the letters Ka, Sa, Kha, La lying in Plot no. 398M, 399M and 400 M within a period of two months. It is this judgment and decree which is under challenge before this Court in the instant second appeal.

21. Sri Ameer Ahmad Ansari, learned counsel for the appellant primarily submitted that it was the duty of the plaintiff to have proved its right and title over plot no. 398 M which is said to have been given to the plaintiff by the Gramsabha.

22. It is urged that since the plaintiff could not establish the grant by the Gram Sabha in respect of Plot No. 398M, the Lower Appellate Court committed an error in treating the same as part of the plaintiff's property which was against the material on record.

23. The learned counsel for the appellant further submits that the Lower Appellate Court further committed an error in putting the burden of proving the case on the defendants whereas it settled law that the plaintiff has to stand on his own legs and the suit cannot be decreed merely on the weakness of the defence.

24. It is further urged that the Lower Appellate Court misread and drew incorrect and wrong inferences from the Commissioner's report relating to Plot No. 398 which has vitiated the judgment impugned. It is in the aforesaid context, it is urged that the Lower Appellate Court did not exercise its power under Section 96 read with Order 41 Rule 31 C.P.C. in its correct perspective and thus the judgment of the Lower Appellate Court is liable to be set aside.

25. Sri G.C. Sinha, learned counsel appearing for the respondents has primarily submitted that the plaintiff had instituted a suit for injunction. In such a suit, the only issue which was of relevance was regarding the possession. The record clearly established that the plaintiff was in settled possession and even if for the sake of arguments, it is considered that the plaintiff was not able to established his right and title over plot No. 398M yet since his possession was proved, he was entitled to the relief and this is exactly what the Lower Appellate Court has done and therefore there is no error committed by the Lower Appellate Court in decreeing the suit.

26. The learned counsel for the respondents further submits that apparently, Plot No. 398M if it did not belong to the plaintiff at the same time it is not the case of the defendants that it belonged to them. In such a situation once the plaintiff was in possession, he had a right to protect his possession against the whole world except the true owner.

27. Since the defendant is not the owner, the plaintiff could have resisted the overt attack of the defendants on the possession of the plaintiff and once the plaintiff proved that he was in possession, the suit ought to have been decreed as the true owner has not come forward to claim the property and the defendant cannot be permitted to thwart the course of justice who himself had no better right than the plaintiff.

28. It is further submitted that the Lower Appellate Court has considered the material on record and after noticing the spot position from the Survey Commission and finding that the plaintiff was in possession, it has rightly decreed the suit by means of judgment and decree dated 15.03.1984 and while doing so it has recorded findings of fact based on the evidence led by the parties and as such the same was not liable to be disturbed in the second appeal.

29. The Court has heard the learned counsel for the parties and also perused the material on record.

30. Primarily, from the reading of the questions of law which have been formulated, it would reveal that it hinges on two propositions

(i) Whether the suit for injunction in light of the pleadings of the parties could be decreed simplicitor on the issue of possession;

(ii) Whether the suit could have been decreed without the plaintiff establishing his own case and the Court considering the weakness of the defence could have returned a finding in favour of the plaintiff.

31. It is in the aforesaid perspective that the Court proposes to deal with the issues and substantial questions of law involved in the instant appeal.

32. At the very outset, it will be relevant to notice the law relating to suit for permanent injunction. In what circumstances, the plaintiff can maintain a simplicitor suit for injunction and under what circumstances it shall be prudent and mandatory for the plaintiff to seek a declaration and other ancillary relief was considered by the Apex Court in Anathula Sudhakar Vs. P. Buchi Reddy 2008 (4) SCC 594 wherein the Apex Court has held as under;

"21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:

(a) Where a cloud is raised over the 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 the 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 [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202] ). 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 straightforward, 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. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."

33. This issue was further considered by the Apex Court in Jharkhand State Housing Board Vs. Didar Singh 2019 17 SCC page 692 wherein the Apex Court has held as under:-

"11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.

12. In the facts of the case the defendant Board by relying upon the land acquisition proceedings and the possession certificate could successfully raise cloud over the title of the plaintiff and in those circumstances plaintiff ought to have sought for the relief of declaration. The courts below erred in entertaining the suit for injunction."

34. This issue was also considered by the Apex Court in Padhiyar Prahladji Chenaji Vs. Maniben Jagmalbhai through legal representatives and others; 2022 (12) SCC 128.

35. That the learned counsel for the respondents has relied upon the decision of the Apex Court in Poona Ram Vs. Motiram AIR Online 2019 SC 59 to indicate the concept of settled position and a decision of this Court in Smt. Narayan Devi Vs. Harishchandra 1986 ALJ 369 to buttress his submissions regarding his possessory rights.

36. From the propositions which can be culled out from the aforesaid decisions, it would be clear that there is a distinction, fine but very distinct in respect of cases relating to simplicitor injunction and where with injunction, a relief of declaration and other ancillary reliefs are required, in law, to be claimed.

37. Applying the aforesaid principles to the instant case, it would be clear that in so far as the plaintiff is concerned, his right over Plot No. 399M and 400 M situate in Village Jalalpur is concerned, the same is not in dispute as the plaintiffs are the recorded owners thereof, however, what actually is in dispute is only Plot No. 398M which as per the plaintiff was given to him by an Izazatnama by the Gramsabha, Jalalapur.

38. It is the case of the plaintiff that in pursuance of his right over plot no. 398M, he had merged his other two plots 398M and 400 and had started raising constructions which was threatened by the defendant.

39. The defendant on the other hand clearly denied the right of the plaintiff on Plot No. 398M and further stated that the defendants had their Dharamshala on the western side which also had a well. They had raised their constructions which were in their possession and actually the plaintiff was attempting to encroach upon the land of the defendant in the garb of suit for injunction.

40. In so far as the plot no. 398M is concerned, it could not be disputed by the plaintiff that the same did not belong to the plaintiff as he was not the recorded owner. His case is based on an alleged Izazatnama granted by the Gram Sabha.

41. The plaintiff could not establish or prove the grant of Izazatnama by any cogent evidence. Neither the plaintiff could bring the Izazatnama and prove it in accordance with law nor any member of the Gramsabha was examined to prove it nor any provision could be shown as to under what powers such a land which was recorded as Banjar could have been granted to the plaintiff. In this view of the matter, apparently, the findings returned by the Trial Court that the plaintiff had no title over the plot No. 398M does not suffer from any error.

42. This finding has also not been disturbed by the Lower Appellate Court and thus the clear admitted facts are that in so far as the Plot No. 398M is concerned, it did not belong to the plaintiff. From the perusal of the decision rendered by the Lower Appellate Court, it would be seen that the reliance has been placed on the Commissioner's report, however, the said report has been placed on record as Annexure No. 1 with the supplementary affidavit filed by the respondents dated 29.08.2008.

43. From the perusal of the said Commissioner's report submitted by Sri Awadhesh Pratap Singh, the Amin Commissioner dated 30th October, 1979 clearly indicates that the disputed property in question fell on Plot Nos. 365, 398 and 399. It also recorded that the Chabootara and certain constructions were existing on the disputed land. This document was available on the record of the Court below marked as Paper No. C-68. There is another report of an Advocate Commissioner dated 25.10.1975 which indicated that in pursuance of the order passed by the Trial Court on 18.10.1975, the Advocate Commissioner had gone to the spot. The aforesaid report is only indicative of the spot position which apparently shows that there were some construction activities in progress as the foundations were found quite recently made, the walls had been raised. He noticed that the western wall of the Dharmshala was present. He also found that there were some labourers who were working.

44. In light of the aforesaid two reports, it will be relevant to notice how the Lower Appellate Court has dealt with the same.

45. The Lower Appellate Court noticed that the disputed land in question was with the plaintiffs since 1960 and he had also raised a wall about 15 years ago whereas the case of the defendants that they had an old Dharamshala which was existing since about 65 years and it was part of the said property.

46. The Lower Appellate Court found that in the Commissioner's report, it indicated that some constructions were going on, therfeore, the suit was filed within time. The Lower Appellate court also relied upon the statement of Motilal P.W. 1 that he was dispossessed and further noticing that since the plaintiff was the recorded holder of Plot No. 399M and that the Dharamshala was not on Plot No. 399M, hence, the disputed property which as per the Amin Commissioner fell on Plot Nos. 365, 398 and 399 which was one parcel of land without demarcation, accordingly, the suit came to be decreed by the Lower Appellate Court.

47. This Court finds that in so far as the plot no. 399M and 400M is concerned, there is no dispute that it belongs to the plaintiff, however, the claim of the plaintiff is that he had taken plot no. 398 from the Gramsabha and thereafter he merged it with his own plots No. 398 M and 400 M and had raised constructions which were old.

48. It is now too well settled to be disputed that the plaintiff is required to stand and prove his case on his strength and cannot derive any benefit from the weakness of the defence. It is also to be noticed that the plaintiff could not establish his right over plot no. 398M whereas the case of the defendants that it was part of the Dharamshala which existed since last 65 years.

49. The plaintiff in his evidence did not deny the fact regarding the existence of Dharamashala for the last many decades. As per the Commissioner's report which indicated that some new constructions was being done, apparently shows that there were no remains regarding old wall and constructions which the plaintiff is said to have raised about 15 years ago. The plaintiff also could not indicate regarding his alleged tenant who was residing in the kothari with tin roof nor such a tenant was examined as witness before the Court.

50. The plaintiff only examined himself as P.W. 1 and one Sri Birey as P.W. 2. From the perusal of the plaintiff's evidence, in his cross-examination, he clearly expressed his ignorance regarding making any inspection of Plot No. 398. He also could not indicate whether the plot no. 398 was part of the Village Abadi. He could not even connect the said Izazatnama which he has filed in the Court as paper no. Ka-15 and his evidence in this regard was extremely contradictory. There were certain overwriting which also could not be explained by the plaintiff nor he examined the lekhpal or the Gram Pradhan who is said to have given the said Izazat/permission to the plaintiff.

51. He admitted that he had his farming fields on Plot Nos. 399 and 400 and further averred that the Pradhan had visited the site ten to fifteen days after the Izazatnama and on his oral instructions, he had given the measurement of the disputed property. He could not deny the existence of the Dharamshala and that a shop selling seeds was also situate on the western side. He also could not give proper explanation in respect of the boundaries regarding the alleged disputed property over which he claimed to have made certain constructions including the Kothari with a tin shed.

52. The statement of P.W. 2 also could not inspire much confidence for the reason that he was allegedly the person who was called by Motilal for digging the foundation. His testimony compared to the testimony of the plaintiff regarding the boundaries also could not establish the case of the plaintiff.

53. In this regard, this Court has no hesitation to hold that the primary case which was set up by the plaintiff seeking injunction and then seeking mandatory injunction to state that the plaintiff had been dispossessed has not been adequately proved. It was not proved as to when the plaintiff had raised the said constructions and when he was dispossessed rather vague statement was made which was not clear and particular. On the other hand, the existence of the Dharamshala, the seed store was found and the plaintiff could not deny the same.

54. It is in the aforesaid context, it would be noticed that the plaintiff did not seek injunction merely on the basis of possession rather he was claiming it on the basis of his title. Once again, for the sake of repetition, it may be noticed that the disputed property which fell on Plot Nos.365, 398 and 399 is concerned, the plaintiff had to explain as to how he had the right over plot nos. 365 and 398. Neither the pleadings nor the evidence could establish the right of the plaintiff on plot nos. 365 and 398. Only because some part of the constructions was on Plot No. 399 M which was belonging to the plaintiff, it did not permit the plaintiff to encroach upon the land, raise constructions and defend it on the basis that he had a better title against the whole word except the true owner.

55. In this regard, it will also be relevant to notice the observations made by the Apex Court in Padihar Prahlad (supra) which reads as under:-

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. An injunction cannot be issued against a true owner or title holder and in favour of a trespasser or a person in unlawful possession.

38. At this stage, the decision of this Court in the case of Jharkhand State Housing Board v. Didar Singh, (2019) 17 SCC 692 is required to be referred to. In the said decision, it is observed and held by this Court that though a bare suit for injunction in the absence of declaration relief would be maintainable and in each and every case where the defendant disputes the title of the plaintiff, it is not necessary that in all those cases, the plaintiff has to seek the relief. It is further observed and held that, however, when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.

39. In the present case, once the defendant No. 1 was held to be the true and absolute owner pursuant to the registered sale deed executed in his favour and the plaintiff was unsuccessful so far as the declaratory relief is concerned, thereafter, it cannot be said that there was a cloud over the title of the plaintiff and/or even the defendant. Therefore, the only relief which survived before the trial court was the consideration of relief of permanent injunction and having been unsuccessful in getting the relief of cancellation of the registered sale deed and the declaration thereof, the relief of permanent injunction could not have been granted by the trial court as well as by the first Appellate Court. This aspect of the case has been lost sight of by the High Court in the second appeal.

40. In the case of A. Subramanian v. R. Pannerselvam, (2021) 3 SCC 675, it is observed by this Court that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. Therefore, the plaintiff is not entitled to any injunction and/or protect his possession against the rightful owner, more particularly, when he fails to get the declaratory relief and the dispute with respect to the title comes to an end.

41. Now, so far as the reliance placed upon the decision of this Court in the case of Anathula Sudhakar (supra) by the learned Advocate appearing on behalf of the original plaintiff in support of his submission that in a suit for permanent injunction to restrain the defendant to interfere with the plaintiff's possession, the only thing the plaintiff will have to establish is that as on the date of the suit, he was in lawful possession of the suit property and the defendant has tried to interfere or disturb his possession is concerned, what is observed by this Court in paragraph 15 is the "lawful possession" of the plaintiff. In the present case the plaintiff, who has failed to get any declaratory relief and the defendant No. 1 is held to be a true and absolute owner on the basis of the registered sale deed on payment of full sale consideration thereafter the plaintiff's possession cannot be said to be "lawful possession". Therefore, the plaintiff is not entitled to any permanent injunction against the true owner in the instant case.

42. From the impugned judgment and order passed by the High Court, it appears that the High Court has not properly appreciated the distinction between a substantive relief and a consequential relief. The High Court has observed that in the instant case the relief of permanent injunction can be said to be a substantive relief, which is clearly an erroneous view. It is to be noted that the main reliefs sought by the plaintiff in the suit were cancellation of the sale deed and declaration and the prayer of permanent injunction restraining defendant No. 1 from disturbing her possession can be said to be a consequential relief. Therefore, the title to the property was the basis of the relief of possession. If that be so, in the present case, the relief for permanent injunction can be said to be a consequential relief and not a substantive relief as observed and held by the High Court. Therefore, once the plaintiff has failed to get any substantive relief of cancellation of the sale deed and failed to get any declaratory relief, and as observed hereinabove, relief of injunction can be said to be a consequential relief. Therefore, the prayer for permanent injunction must fail. In the instant case as the plaintiff cannot be said to be in lawful possession of the suit land, i.e., the possession of the plaintiff is "not legal or authorised by the law", the plaintiff shall not be entitled to any permanent injunction.

43. An injunction is a consequential relief and in a suit for declaration with a consequential relief of injunction, it is not a suit for declaration simpliciter, it is a suit for declaration with a further relief. Whether the further relief claimed has, in a particular case as consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to disposes him, except in due process of law.

44. Now, so far as the submission on behalf of the plaintiff that even if the plaintiff failed to get the declaratory relief and relief for cancellation of registered sale deed and her suit for the said reliefs came to be dismissed and the plaintiff is found to be in possession and therefore, the only remedy available to the defendant No. 1 would be to file a substantive suit to get back the possession is noticed only to be rejected outright. It is the contention on behalf of the plaintiff that once the plaintiff is found to be in possession, her possession cannot be disturbed except in due process of law and the defendant No. 1 though may be the true owner has to file a substantive suit for recovery of possession. While considering the aforesaid submission, the decision of this Court in the case of Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira, (2012) 5 SCC 370 is required to be referred to. What is meant by due process of law has been explained by this court in paragraph 79, which reads as under:--

"79. Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity to the defendant to file pleadings including written statement and documents before the court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated upon by a competent court."

45. In the said decision, this Court has approved the following findings of the High Court of Delhi in Thomas Cook (India) Ltd. v. Hotel Imperial (2006) 88 DRJ 545:--

28. The expressions ''due process of law', ''due course of law' and ''recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed ''forcibly' by the true owner taking law in his own hands. All these expressions, however, mean the same thing--ejectment from settled possession can only be had by recourse to a court of law. Clearly, ''due process of law' or ''due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.

56. In so far as the decision cited by learned counsel for the respondents is concerned, it could be found that the issue in Smt. Narayan Devi (Supra) was in context with the plea raised by the plaintiff of the suit based on possessory title which was later amended to the plea of adverse possession and in the aforesaid context it was found that the plaintiff who had filed a suit for possession, he could maintain the same on the basis of possessory title even if his plea of adverse possession could not be established.

57. In Poona Ram (supra) the Apex Court had considered the aspects of possessory title and stated that a person claiming the same will have to show that he was in settled and established possession and his possession had been for such a long period that the true owner had acquiesced. It further held that there cannot be a straight jacket formula to determine the settled possession and an occupation of a person on the property at the instance of the true owner in capacity of an agent and servant will not amount to actual legal possession. The relevant portion of the said report reads as under:-.

"13. The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case."

58. Thus, in light thereof apparently as per the case of the plaintiff, plot no. 398M was that of the Gramsabha. The plaintiff could not establish his rights nor could establish the validity of the Izazatnama. Thus, at best, the status of the plaintiff over the said land could be that of unauthorized occupant and the plaintiff could not claim right to it. The possession also would be deemed of the original owner and therefore the possession of the plaintiff also could not be treated as possession in his own rights for him to seek the benefit of getting a decree on the basis of his possession alone. Thus, the said decision in Poona Ram (Supra) does not come to the rescue of the plaintiff.

59. Taking cue from the aforesaid observations, this Court apparently finds that the Lower Appellate Court had committed an error in failing to notice that the plaintiff could not establish his case nor there was clear evidence regarding the possession as admittedly the plaintiff stated that he had been dispossessed.

60. Another important aspect that is to be seen is that in case if the plaintiff had been dispossessed unlawfully as suggested by him, he had the option of filing a suit under Section 6 of the Specific Relief Act, 1963 wherein in a summary proceedings, the Court is only required to determine as to whether on the alleged date of dispossession, the plaintiff was in possession, prior, without considering the issue of title but the moment, the plaintiff files a suit for possession on the basis of title though couched as a suit for perpetual or mandatory injunctions then title is to be indicated and proved. May be such finding in a simplicitor suit for injunction may not be binding but nevertheless it would go a long way to establish the right of the plaintiff viz. a viz. his possession over the land in question.

61. Once the plaintiff knew that the defendants were resisting his rights over the property in question and there was a clear pleading that the land of Plot No. 398 did not belong to the plaintiff and was recorded as that of Gramsabha then it was necessary for the plaintiff to have sought a relief for declaration. Having failed to do so, the suit for injunction simplicitor was not maintainable as has been held by the Apex Court in P. Buchi Reddy (Supra) and Jharkhand Cooperative Societies (supra).

62. The Lower Appellate Court also appears to have erred in examining the case of the defendants rather than to examine the case of the plaintiff and only once the case of the plaintiffs was proved then the defendant's case may have been considered to test whether it could resist the claim of the plaintiff and in that context it would have to be seen that the plaintiff could have been granted the relief.

63. The Lower Appellate Court has not considered any of the oral evidence rather it has gone on a proposition that since the testimony of the witnesses who belonged to a rural background, they were to be granted some leverage but it has not given cogent reasons why such general statement was applicable for the witnesses as examined by the plaintiffs. Nonetheless the Lower Appellate Court has relied upon the report of the Advocate Commissioner as well as the Amin Commissioner without corroborating and co-relating to the pleadings and the evidence led by the respective parties, thus, this Court is of the clear opinion that the Lower Appellate Court has not appropriately exercised its jurisdiction as a First Appellate Court. (see Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 and Sudarsan Puhan Vs. Jayanta Ku. Mohanty and others, 2018 (10) SCC page 552)

64. In light of the aforesaid, this Court allows the instant second appeal. The judgment and decree passed by the Lower Appellate Court dated 15.03.1984 passed in Civil Appeal No. 387 of 1980 is set aside. The judgment and decree of the Trial Court dated 14.08.1980 in Regular Suit No. 310 of 1975 is restored. Costs are made easy. The records of the trial court be returned forthwith.

(Jaspreet Singh, J.)

Order Date :- 05th October, 2023

Asheesh