Punjab-Haryana High Court
Mohan Lal vs Mohan Singh on 7 October, 1994
Equivalent citations: (1995)111PLR564
ORDER G.S. Singhvi, J.
1. This revision petition is directed against the order dated 12.9.1994 passed by the learned Additional District Judge, Jalandhar, in an appeal filed by the respondent, Mohan Singh, against the order of injunction passed by Sub Judge, Second Class, Jalandhar, on 21.5.1994, granting injunction in favour of the plaintiff-petitioner. Learned Additional District Judge, Jalandhar, reversed the order of injunction and has dismissed the application filed by the petitioner under Order 39, Rules 1 and 2 read with section 151, C.P.C. and the petitioner who has felt aggrieved by the order of the learned Additional District Judge has sought intervention of this Court for restoration of injunction order passed by the Sub Judge.
2. The plaintiff-petitioner filed a suit in the Court of Sub Judge, Jalandhar, seeking a declaration that the property mentioned in the plaint is in his possession and that he cannot be dispossessed by the defendant-respondent on the ground that the land in question formed part of public passage. Alongwith the plaint an application under Order 39, Rules 1 and 2, C.P.C. was filed by the petitioner seeking a restraint order against his forcible dispossession. After hearing the rival parties, the learned Sub Judge IInd Class, Jalandhar, issued an order of injunction restraining the defendant respondent from interfering with the possession of the petitioner over the suit property. The learned Additional District Judge, before whom appeal was filed by the respondent, held that the petitioner has failed to make out a prima facie case and is, therefore, not entitled to the grant of injunction. Consequently, he dismissed the injunction application filed by the petitioner.
3. Shri Bakshi, the learned counsel for the petitioner, has argued that once the possession of the property is proved to be with the petitioner, he has a right to retain the said possession without interference by anybody. The learned counsel argued that the petitioner cannot be dispossessed or evicted from the suit property except in accordance with the procedure established by law and the learned Sub Judge was right in granting injunction in favour of the petitioner. Learned counsel submitted that the appellate Court has interfered with the order of the trial Court without properly appreciating the case of the petitioner and without even holding that the order passed by the learned trial Court suffered from any patent illegality so as to warrant interference by the appellate Court. He placed reliance on the decisions of this Court in Sadhu Ram v. Gram Panchayat, Pastana, A.I.R. 1984 Punjab & Haryana 262; Hukan Singh v. Shri Tara Singh and Ors., (1992-2)102 P.L.R. 331; and also on the Supreme Court judgments in M.Kallappa Setty v. M.V. Lakshminarayana Rao, A.I.R. 1972 S.C. 2299; and Dalpat Kumar and Anr. v. Prahlad Singh and Ors., A.I.R. 1993 S.C. 276.
4. After having given my thoughtful consideration to the submissions of the learned counsel and having perused the order of the learned Sub Judge as well as the order passed by the learned Additional District Judge, I am convinced that there, is no ground for interference by this Court with the impugned order of the learned Additional District Judge, Jalandhar. The facts which have been mentioned in the revision petition and which are also discernible from the orders passed by the learned Sub Judge IInd Class, Jalandhar, and the learned Additional District Judge, Jalanhar, show that as per the petitioner's case the land in dispute belongs to Surjit Singh, Tarlochan Singh, Sohan Singh and Gian Singh, all sons of Dalip Singh. All these persons are living in England and according to the petitioner they entrusted management of the property to him. He alleged that the respondent, who is having property adjacent to the disputed property, was threatening to dispossess the petitioner. He is said to have forcibly demolished the gate fixed on the boundary wall and had damaged the property. These assertions of the petitioner were contested by the respondent, who pleaded that the property in dispute is a part of the public passage and was recorded as Gair Mumkin Rasta Share Aam in the revenue record. The entire basis of the claim made by the petitioner is power of attorney allegedly executed by the claim made by the petitioner were contested by the respondent, who pleaded that the property in dispute is a part of the public passage and was recorded as Gair Mumkin Rasta Share Aam in the revenue record. The entire basis of the claim made by the petitioner is power of attorney allegedly executed by one Surjit Singh on 24.3.1994 at Gravesend Cantt. United Kingdom. No document has been produced on the file of the trial Court to show as to in what capacity the petitioner is claiming himself to be the manager of the property which allegedly belongs to Tarlochan Singh, Sohan Singh and Gian Singh who are other three sons of Dalip Singh apart from Surjit Singh. No prima facie evidence has been produced by the petitioner before the trial Court to show as to how the property belongs to Dalip Singh and his sons. In Jamabandi for the years 1986-89 the disputed property which lies in Khasra Nos. 268 and 266 is shown as Gair Mumkin Rasta Share Aam. The learned trial Court did not take note of the description of the land as set out in the record but solely relied on the report of the Local Commissioner appointed at the instance of the plaintiff-petitioner. On the basis of the report of the Local Commissioner the learned trial Court held that the property was in possession of the plaintiff-petitioner and he had a right to protect the said possession against forcible eviction. The learned appellate Court has held that the trial Court was in grave error in ignoring the record showing the property as Gair Mumkin Rasta Share Aam. The learned appellate Court further held that when the property constitutes a part of the public passage, it cannot be allowed to be trespassed by anybody. The appellate Court also took note of the fact that a pucca drain exists on the disputed property and that is also indicative of the fact that the petitioner does not have any right over the property. The learned counsel for the petitioner does not have any right over the property. The learned counsel for the petitioner has not been able to show as to how the finding recorded by the learned appellate Court with reference to the record, namely, Jamabandi in which the property in dispute has been shown as Gair Mumkin Rasta Share Aam, is erroneous. He has also not been able to show that the finding of the learned appellate Court regarding the existence of a pucca drain over the property in dispute is erroneous. In the face of these findings recorded by the appellate Court, there can be no manner of doubt that the property in dispute constitutes a part of the public passage. Therefore, there was no justification for the learned trial Court to have passed an order of injunction in favour of the petitioner and against the respondent. In my opinion, the learned Additional District Judge has not committed any illegality in upsetting the order of injunction passed by the learned trial Court.
5. Apart from the three ordinary ingredients which must be satisfied for grant of injunction in favour of a plaintiff/petitioner, namely, a strong prima facie case, balance of convenience and irreparable injury, in cases involving public properties and public interest, the Courts have to bear in mind as to whether the grant of injunction would be conducive or detrimental to public interest. The Courts have to take note of the fact that Government lands belonging to the public at large and the community as a whole is entitled to enjoy the properties belonging to the Government. In fact, the Government holds property as a trustee of the people and, therefore, where any attempt is made by an individual or a group of individuals to misappropriate/misuse or otherwise interfere with the enjoyment of public property by the people in general, the Courts have to be extremely cautious in granting injunction in favour of such person only on the ground that he is in possession of the property. Possession of public property by such an individual or a group of individuals is no possession in the eyes of law. Such a person cannot claim any right whatsoever on the basis of unlawful occupation of the public property and Courts would be justified in declining any assistance to such a person. In such like cases, a plaintiff cannot claim parity with a person who has a dispute with another individual over a private property. Moreover, the Courts have to act as guardian of the public property and should not pass an order of injunction in favour of a person who has made unauthorised encroachment of the public property. For these reasons, I hold that the order passed by the learned Additional District Judge does not suffer from any jurisdiction error or any other legal infirmity requiring interference by this Court.
6. The judgment of this Court in Sadhu Ram's case (supra) is clearly distinguishable. In that case the plaintiff had been able to establish that he was in possession of the property as a tenant of Smadh Baba Bhagwan Gir Sahib, which was shown to be the owner of the land. The trial Court also found that he was in possession of the property for a long time. On the basis of these facts the Court held that an injunction should have been granted in favour of the plaintiff for protecting his rights during the pendency of the suit. In Hukum Singh' case (supra), this Court found that the plaintiff was in possession of the property. The Court further held that the learned appellate Court was not correct in declining injunction only on the assumption that there appeared to be a public passage. Once again that case is clearly distinguishable because the plaintiff had been able to establish his possession over the property for years together and this Court had found that the view taken by the learned appellate Court was based on conjectures. In M. Kallappa Setty's case (supra) and Dalpat Kumar's case (supra), what the apex Court has laid down is that a party is entitled to resist dispossession from a property by a private individual. Both these cases are clearly distinguishable because in neither of these cases public property was involved and no finding had been recorded by the appellate Court that the property in dispute in fact constituted a part of public passage.
7. For the reasons, aforesaid, I find no merit in this petition, which is hereby dismissed.