Punjab-Haryana High Court
Smt. Gur Dai vs Arjan Singh (Died) Through Lrs on 26 September, 1996
Equivalent citations: (1997)115PLR666
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. This regular second appeal is directed against the judgment and decree of the first appellate Court, dated 10.5.1995.
2. The relevant facts for the determination of the controversy in issue are : that a suit for declaration was filed by Smt. Gur Dai against Arjan Singh claiming a decree for declaration that she is owner in possession and for the relief of injunction restraining the defendants in the suit from interfering in her peaceful possession. The land which is subject matter of the suit consists of 17 kanals 16 marlas of land as detailed in the plaint in village Saidwalkalan, Tehsil and District Gurdaspur.
3. This suit was contested by the defendants and the suit was dismissed by the trial Court after complete trial vide its judgment and decree dated 5.3.1991. This decree was assailed before first appellate Court. Appeal was dismissed giving rise to the second appeal. Consequently, this regular second appeal was filed.
4. Before I discuss the controversy arising in the present appeal, I consider it imperative to refer to certain previous litigations between the parties to which there is no dispute. The present plaintiff had first filed a suit on 5.5.1980 claiming title by ad verse possession over the land in dispute. This suit was dismissed. Against the decree of dismissal, first appeal was also dismissed and regular second appeal against the said decree was dismissed by this Court on 26.4.1983. The judgment of the Court is exhibit D-1 on record. Within a period of less then a month i.e. on 25.5.1983 the same plaintiff filed the second suit against the same set of defendants claiming that he was in cultivating possession as tenant of the disputed land. This second suit was dismissed by the trial Court on 20.9.1984. The first and second regular appeals, both preferred by the plaintiff, were dismissed by the appellate Courts. Present suit was the third suit which was instituted by the plaintiff against the defendants. Suit was instituted on 14.11.1985 and dismissed on 5.3.1991. It is even conceded before me that the said plaintiff on one hand has preferred the present regular second appeal and on the other hand has already instituted a fourth suit against the defendants before the trial Court, which is pending.
5. From the above facts it is clear that the present appellant is filing suit after suit, even on different pleas, which are destructive of each other. If the appellant was claiming tenancy, as in the second suit, he could not have claimed adverse possession in the previous suit. A person who is a tenant can never claim adverse possession against the true owner. In the first suit the Court had come to a finding that the plaintiff in the suit i.e. the present appellant was not in possession of the disputed land. The copies of the jamabandis, which have been filed on record and have been exhibited as P-11 and P-13 and copies of khasra girdawaris exhibited on record as P-14 to P-16 and were filed by the plaintiff, do not reflect the plaintiff as the owner of the property at any point of time. In the column of occupation at some places the plaintiff has been reflected to be in possession but in the khasra girdawari for the period 1986-87 the defendants have admittedly been reflected as owners. The respondents have argued that even the earlier khasra girdawaris in the remarks column carry the entry with regard to the ownership of the respondents as owners by sale deed.
6. It is not even disputed before me that these revenue entries in favour of plaintiff were adversely remarked in the second suit by the Court of competent jurisdiction. The inevitable conclusion of the conduct of the plaintiff is that plaintiff has certainly abused the process of law and in fact has misused the process of law in a manner which needs to be condemned.
7. Thus, the moot question in the present appeal is that in the facts and circumstances of this case, whether the plaintiff could claim and maintain a suit for injunction against the true owner who is recorded as owner in the revenue record as well as held to be owner in possession by decrees of Courts, at all. This point need not detain this Court any further because in the case of Premji Ratansey and Ors. v. Union of India and Ors., JT 1994(6) S.C. 585 the Hon'ble Supreme Court of India held as under:
"It is equally settled law that injunction would not be issued against the true owner. Therefore, the Courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner".
Both the Courts below have given a concurrent finding of fact and have declined the relief to the plaintiff in the suit on proper appreciation of evidence. The defendants had led oral evidence as well as had produced on record the copies of the judgments in the previous cases, which were duly exhibited. This approach of the Courts below does not suffer from any jurisdictional error nor is it in violation of the settled principles of law. In accordance with the law settled by the Hon'ble Supreme Court of India in a recent judgment in Ramanuja Naidu v. V. Kanniah Naidu and Anr., JT 1996(3) S.C. 164, I do not consider it appropriate to interfere in the judgments of the Courts below in this second appeal. Consequently, this appeal is dismissed with costs, which are assessed at Rs. 5,000/