Punjab-Haryana High Court
Monika Arora vs Amarjit Singh & Ors on 17 October, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
CR No.2155 of 2014 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
CR No.2155 of 2014
Date of Decision:17.10.2014
*****
Monika Arora
. . . .Petitioner
Versus
Amarjit Singh and others
. . . . Respondents
*****
CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
*****
Present: - Mr.Ashish Aggarwal, Sr. Advocate, with
Mr.Kulwant Singh, Advocate,
for the petitioners.
Mr.Puneet Jindal, Sr. Advocate,
Ms.Shakshi, Advocate, for respondent No.1.
Mr.M.S. Sachdev, Advocate,
for respondents No.2 to 5.
*****
RAKESH KUMAR JAIN, J. (ORAL)
This petition is filed by defendant No.1 against the order of the Appellate Court, granting injunction, restraining respondent No.1 from alienating, transferring or raising any kind of construction over the plot in dispute, for a period of one year.
Shorn of unnecessary details, the plaintiff filed suit for permanent injunction restraining the defendants, their agents, nominees, attorneys, assignees, heirs, relatives, friends, employees etc. from interfering in their peaceful possession or dispossessing them forcibly and illegally from the land shown in red in the site plan attached, marked with letters ABCDEFGH and bounded as North-property of Mohinder Singh and Nishi Kant, South-earlier plot of Surinder Singh and Mohinder Singh and others and at present Sohan Lal and plot of others, East- VIVEK PAHWA 2014.10.30 15:39 I attest to the accuracy and authenticity of this document CR No.2155 of 2014 -2- Baldev Behl, Roshan Lal and Yogesh Kumar Behl, West-Preeti Pal and Sohan Lal, or from raising any kind of construction in the suit land allegedly exclusively owned by the plaintiff alongwith his brother Gurdip Singh.
An application for temporary injunction, under Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1908 [for short 'the CPC'] was also filed with the suit which was dismissed by the trial Court. However, the Appellate Court, while allowing the application of the plaintiff, made the following observations: -
"Therefore, the respondent No.1 even though in possession cannot be said to be in possession by way of having any title over the property and as such cannot be allowed to raise construction over the same but the remedy available to the present appellant is to file a suit for declaration for which opportunity needs to be given to him as per law for which he cannot be non-suited at the interim stage."
The appellate Court also granted injunction, observing that "the present appeal is accepted. Order dated 9.4.2012 passed by the learned lower Court is set aside. Respondent No.1 is restrained from alienating, transferring or raising any construction over the plot in question for a period of one year."
VIVEK PAHWA 2014.10.30 15:39 I attest to the accuracy and authenticity of this document CR No.2155 of 2014 -3-
Learned counsel for the petitioner has argued that once the Appellate Court had found the petitioner in possession, the remedy with the plaintiff was to file a suit for possession with consequential relief of permanent injunction. In this regard he has relied upon a decision of the Supreme Court in the case of "Anathula Sudhakar Vs. P. Buchi Reddy (dead) by LRs and others" 2008(2) RCR (Civil) 879 and has referred to the conclusion drawn by the Supreme Court, which reads thus: -
"To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(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 VIVEK PAHWA 2014.10.30 15:39 I attest to the accuracy and authenticity of this document CR No.2155 of 2014 -4- 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 (supra)].
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 straight-forward, 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 VIVEK to encroach upon his property.
PAHWA 2014.10.30 15:39 I attest to the accuracy and authenticity of this document CR No.2155 of 2014 -5- The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
Learned counsel for respondent No.1 has however, vehemently argued that it is a vacant plot and as per the aforesaid judgment, the possession of a vacant plot goes with the title and has referred to the following observation made in the aforesaid judgment: -
"But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a VIVEK PAHWA 2014.10.30 15:39 I attest to the accuracy and authenticity of this document CR No.2155 of 2014 -6- suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-
fledged suit for declaration and consequential reliefs".
After hearing learned counsel for the parties and examining the record, I am of the considered opinion that the revision petition deserves to be allowed as the learned Lower Appellate Court has committed a patent error of law in misreading the observations made by the Supreme Court in the case of P. Buchi Reddy's (Supra). On the one hand, the Appellate Court has observed that the petitioner is in possession of the property in dispute and advised the plaintiff to file a suit for declaration in stead of suit for permanent injunction and on the other hand granted injunction for a period of one year so that the plaintiff may file suit for declaration and further ordered that in the meantime the injunction granted in the suit shall continue. This kind of arrangement is unheard of because if the suit of the plaintiff was not maintainable as defendant no.1/petitioner was found to be in possession by the appellate Court, the only remedy left with the plaintiff was to file a suit for possession of the property in dispute with consequential relief of injunction.
At this stage, learned counsel for respondent No.1 has also submitted that though he had filed an application in the pending suit to change the nature of suit from the suit for injunction to declaration but now he prays that he may be given permission to withdraw the said application in order to file a suit for possession with consequential relief of injunction restraining VIVEK PAHWA 2014.10.30 15:39 I attest to the accuracy and authenticity of this document CR No.2155 of 2014 -7- the petitioner herein from raising any construction or transferring the suit land in any manner.
In view of the statement made and the facts and circumstances of the case, the present revision petition is allowed and the impugned order is hereby set aside.
The plaintiff/respondent No.1 may, if so advised, file a suit for possession with consequential relief of injunction and in case any application for temporary injunction is also filed, that may be decided in accordance with law.
(RAKESH KUMAR JAIN) 17.10.2014 JUDGE Vivek VIVEK PAHWA 2014.10.30 15:39 I attest to the accuracy and authenticity of this document