Allahabad High Court
Meera Awasthi And Another vs Ajeet Awasthi And Another on 6 February, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on: 25.01.2024 Delivred on: 06.02.2024 Neutral Citation No. - 2024:AHC:19813 Court No. - 52 Case :- MATTERS UNDER ARTICLE 227 No. - 90 of 2024 Petitioner :- Meera Awasthi And Another Respondent :- Ajeet Awasthi And Another Counsel for Petitioner :- Anand Kumar Srivastava,Anand Kumar Srivastava Hon'ble Manish Kumar Nigam,J.
1. Heard Sri Anand Kumar Srivastava, learned counsel for the petitioners and perused the record.
2. Present petition has been filed challenging the order dated 31.10.2023 passed by the Additional District Judge, Court No. 8, Kanpur Nagar allowing the Misc. Civil Appeal No. 81 of 2023 (Ajeet Awasthi v. Meera Awasti and others).
3. The facts of the case in brief are that the plaintiff/respondent no. 1 Ajeet instituted Original Suit No. 816 of 2020 (Ajeet Awasthi v. Meera Awasthi and others) in the court of Civil Judge (Senior Division), Kanpur Nagar for the relief of permanent injunction restraining the defendants, their servants, agents, employees, representatives, family members from interfering in the peaceful possession and enjoyment of the plaintiff over the house in dispute (House No. N 638, S Block, Yashoda Nagar, Kanpur Nagar). The case set up by the plaintiff/respondent no. 1 in the plaint in brief is that the plaintiff purchased the land out of his own income in the name of his mother namely Meera Awasthi and thereafter constructed a house from his own funds being House No. N 638, S Block, Yashoda Nagar, Kanpur Nagar and is living along with all his family members in the aforesaid house. It is further pleaded that subsequently, the defendant nos. 1 & 2 (parents of the plaintiff/respondent no. 1) under the influence of their other children started asking the plaintiff to vacate the accommodation and has also given threat to the plaintiff in case the plaintiff/respondent do not vacate the house in question, he will be thrown out from the premises in question and therefore, the present suit is instituted. The plaintiff/respondent no. 1 also filed an application under Order 39 Rule 1 & 2 C.P.C. for grant of temporary injunction. The trial court i.e. Judge Small Causes, Kanpur Nagar by an ex-parte order dated 27.10.2020 restrained the defendants from interfering with the possession of plaintiff over house in dispute and further directed them to maintain status quo. On an application filed by the plaintiff/respondent, paper no. 30Ga, the trial court appointed commissioner vide order dated 07.05.2022. Commissioner has submitted its report on 01.09.2022.
4. After service of notice, the petitioners/defendants appeared before the court below and filed their objections on 13.04.2022 being paper no. 26/27ga to the application for temporary injunction filed by the petitioner. The case set up by the defendants/petitioners is that the land in question is not purchased by the plaintiff out of his own funds and the house constructed thereupon is also not constructed by the plaintiff out of his own funds rather the same is constructed by defendant nos. 1 & 2 out of their own funds. However, in their objections, the defendant/petitioners have admitted that the plaintiff/respondent is residing in the house in question and has thrown out the defendant/petitioner from the property in question, other pleas were also taken.
5. The trial court by order dated 21.08.2023, rejected the application for temporary injunction filed by the defendant/respondent no. 1 holding that there is no prima-facie case, balance of convenience, irreparable loss to the plaintiff. The trial court has also held that an injunction cannot be granted merely on the basis of possession. Against the order dated 21.08.2023, defendant/respondent no. 1 preferred Misc. Civil Appeal No. 81/2023 which has been allowed by the Additional District Judge, Court No. 8, Kanpur Nagar by order dated 31.10.2023. The order dated 21.08.2023, passed by the trial court was set-aside by appellate court and appellate court also directed that both the parties will maintain status quo with respect to the house in question. Being aggrieved with the order dated 31.10.2023, the present petition has been filed under Article 227 of Constitution of India by the defendants/petitioners.
6. Contention of the learned counsel for the petitioners is that the land in question was purchased vide sale deed dated 16.02.2004, paper no. 28ga from its earlier owner by Meera Awasthi defendant/petitioner no. 1. Learned counsel for the petitioner relied upon the bank statement paper no. 28Ga/27 and 28Ga/28 to demonstrate that the aforesaid bank account is in the name defendants/petitioners and the money has been paid from the aforesaid account for the purchase of the land. The house tax of the House No. N 638, S Block, Yashoda Nagar, Kanpur Nagar is being paid by Smt. Meera Awasthi and has contended that on the basis of aforesaid documents that Meera Awasthi is the actual owner of the property in dispute. It is further contended by the learned counsel for the petitioners that the plaintiff has failed to prove even prima-facie that the land is purchased by the plaintiff out of his own funds and house is constructed thereupon by the plaintiff out of his own funds. It has also been contended by the learned counsel for the petitioners that the plaintiff is in possession because being son of the defendants and is residing therein with their consent and has no right to reside therein without their consent. The plaintiff has failed to prove that the plaintiff has any legal right to remain in possession over the house in question. It is also contended by the learned counsel for the petitioners that the appellate court has erred in law in granting injunction merely on the basis of possession that to against the true owner. In this regard, the learned counsel for the petitioner relied upon the judgment of the Apex Court in case of Premji Ratan v. Union of India reported in (1994) 5 SCC 574, and Hanumanthappa v. Muniappa reported in 1997 (29) ALR 392 SC.
7. Next, it is contended by learned counsel for the petitioners that the suit filed by the the defendant/respondent was based on his title. The suit itself was defective in as much as declaration of title has not been sought for though the title of plaintiffs was in dispute. It is further submitted that if the suit is based on title and unless the plaintiff proves his prima-facie title, an injunction cannot be granted merely on the basis of possession over the property in dispute. It has been also contended by learned counsel for the petitioners that the suit simpliciter for permanent injunction without claiming declaration of the title, fled by the plaintiff, is not maintainable. In this connection, the learned counsel for the petitioners relied upon the judgment of Apex Court in case of T. V. Ramakrishna Reddy v. M. Mallappa & Anr. In Civil Appeal No. 5577 of 2021 decided on 07.09.2021 and also upon the judgment of the Apex Court in case of Padhiyar Prahladji Chenaji (deceased) through L.R.s v. Maniben Jagmalbhai (Deceased) Through L.R.s and Ors. in Civil Appeal No. 1382 of 2022 decided on 03.03.2022. It is also contended by learned counsel for the petitioners that the plaintiff has been residing in the house in dispute with the consent of the defendant no. 1 and 2 who are the actual owner of the property in dispute and at the best it could be said that the plaintiff has been in possession because of an implied license by the parents which has come to an end and therefore, the plaintiff has no right to remain in possession over the house in dispute and at the best, the plaintiff can ask for damages for unlawful dispossession and no injunction can be issue in favour of the plaintiff who has no legal right to remain in possession over the land in dispute.
8. I do not find any merit in the submissions so made by learned counsel for the petitioner and with force.
5. Salmond states in Jurisprudence (12th Edn.) "few relationships are as vital to man as that of possession, and we may expect any system of law, however primitive, to provide rules for its protection. . . . . . . Law must provide for the safeguarding of possession. Human nature being what it is, men are tempted to prefer their own selfish and immediate interests to the wide and long-term interests of society in general. But since an attack on a man's possession is an attack on something which may be essential to him, it becomes almost tantamount to an assault on the man himself; and the possessor may well be stirred to defend himself with force. The result is violence, chaos and disorder." (at pp. 265-66) "In English Law possession is a good title of right against anyone who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself. Many other legal systems, however, go much further than this, and treat possession as a provisional or temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his possession, can recover it from any person whatever, simply on the ground of his possession. Even the true owner, who takes his own, may be forced in this way to restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed in due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every possessor shall be entitled to retain and recover his possession, until deprived of it by a judgment according to law." (Salmond, ibid, pp. 294-95) "Legal remedies thus appointed for the protection of possession even against ownership are called possessory, while those available for the protection of ownership itself may be distinguished as proprietary. In the modern and medieval civil law the distinction is expressed by the contrasted terms petitorium (a proprietary suit) and possessorium (a possessory suit)." (Salmond, ibid, p.295)
6. The law in India, as it has developed, accords with the jurisprudential thought as propounded by Salmond. In Midnapur Zamindary Co. Ltd. Vs. Kumar Naresh Narayan Roy and Ors. 1924 PC 144, Sir John Edge summed up the Indian law by stating that in India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court.
9. Full Bench of Allahabad High Court in case of case of Yar Mohammad and another v. Lakshmi Das and others reported in AIR 1959 All 1, it has been held by this Court that law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess the person in actual possession without having recourse to a court. No person can be allowed to become a judge in his own cause. As observed by Edge, C.J. in Wali Ahmad Khan v. Ayodhya Kundv (ILR XIII Alld, 537 at 558) "The object of the Section was to drive the person who wanted to eject a person into the proper court and to prevent them from going with high hands and ejecting such person."
10. In case of Lallu Yeshwant Singh v. Rao Jagdish Singh and others reported in AIR 1968 SC 620, it has been held by the Apex Court that even when the land lord forcibly enters on the land in possession of the tenant whose tenancy has expired would amount to a trespass. Para no. 8 of the Lallu Yeshwant Singh (Supra) is quoted as under:
"Some stress was laid on the words "in case of proof of trespass" in s. 326 by the learned counsel for the respondent. According to him, a landlord does not commit trespass when he forcibly enters on land in the possession of a tenant whose tenancy has expired. In our view, in the context, the word "trespass" here would include forcible entry and dispossession by the landlord. Reference was made to a number of English authorities in this behalf but it is not necessary to deal with them because the law in India on this subject is different. Under s. 9 of the Specific Relief Act it is well-settled that question of title is irrelevant in a suit under that section. As the structure of s. 326 of Qanoon Mal, read with s. 163 of Qanoon Ryotwari, is similar to s. 9 of the Specific Relief Act, there is no. reason why s. 326 should be interpreted differently."
11. In K. K. Verma v. Naraindas C. Malkani reported in ILR (1954) Bombay 950 at page 957, Chagla, C.J. stated that the law in India was initially different from the law in England, he observed:
"Under the Indian law the possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy his possession is juridical and that possession is protected by statute. Under s. 9 of the Specific Relief Act a tenant who has ceased to be a tenant may sue for possession against his landlord if the landlord deprives him of possession otherwise than in due course of law, but a trespasser who has 'been thrown out of possession cannot go to Court under s. 9 and claim possession against the true Owner."
12. In case of Ram Rattan and others v. State of U.P. reported in AIR 1977 SC 619, it has been held by the Apex Court that person in settled possession can only be dispossessed even by the true owner by taking recourse to the remedies available to him under law. Relevant portion of para no. 4 of Rama Rattan (Supra) is quoted as under:
"It is well settled that a true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or process of trespassing and has not accomplished his possession, 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 available under the law. In view of the clear finding of the High Court that the complainant Ram Khelawan even after encroachment had established his possession over the land in dispute for two to three weeks before the occurrence, for the purpose of criminal law, the complainant must be treated to be in actual physical possession of the land so as to have a right of private defence to defend his possession even against the true-owner."
While it may not be possible to lay down a rule of universal application as to when the possession of a trespasser become complete and accomplish.
13. In case of Puran Singh and another v. State of Punjab reported in AIR 1975 SC 1674, in para no. 11 of the aforesaid judgment, the Apex Court has held as under:
"11. In this case there was a concurrent finding of fact that Jamuna was in effective possession of the field on the date of occurrence and the prosecution had alleged that P.Ws 17 and I had taken possession of the property but the finding of the Court was that P.Ws 17 and 19 had not been put in possession by virtue of the delivery of possession given by the Court. It was against this context that the observations referred to above were made. This Court clearly pointed out that where a trespasser was in settled possession of the land he is not entitled to be evicted except in due course of law and be is further entitled to resist or defend his possession even against the rightful owner who tries to dispossess him. The only condition laid down by this Court was that the possession of the trespasser must be settled possession. The Court explained that the settled possession must be extended over a sufficiently long period and acquiesced in by the true owner. This particular expression has persuaded the High Court to hold that since the possession of the appellants party in this case was only a month old, it cannot be deemed to be a settled possession. We, however, think that this is not what this Court meant in defining the nature of the settled possession. It is indeed difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into a settled possession. But what this Court really meant was that the possession of a trespasser must be effective, undisturbed and to the knowledge of the owner or without any attempt at concealment. For instance a stray or a casual act of possession would not amount to settled possession. There is no special charm or magic in the word 'settled possession' nor is it a ritualistic formula which can be confined in a strait jacket but it has been used to mean such clear and effective possession of a person, even if he is a trespasser, who gets the right under the criminal law to &fend his property against attack even by the true owner. Similarly an occupation of the property by a person as an agent or a servant at the instance of the owner will not amount to actual physical possession. Thus in our opinion the nature of possession in such cases which may entitle a trespasser to exercise the right of private defence of property and person should contain the following attributes:
(I) that the trespasser must be in actual physical possession of property over a sufficiently long period;
(ii) that the possession must be to the knowledge either express or implied of the owner or without any attempt at concealment and which contains an element of animus prossendie. The nature of possession of the trespasser would however be a matter to be decided on facts and circumstances of each case ;
(iv)that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession, in which case the trespasser will have a right of private defence and the true owner will have no right of private defence. These principles logically flow from a long catena of cases decided by this Court as well as other High Courts some of which have been referred to in the judgment of this Court in Munshi Ram's case, AIR 1968 SC 706= (1968 Cri LJ 806) (supra)."
14. In case of State of U.P. and another v. Maharaja Dharmander Prasad Singh etc. reported in AIR 1989 SC 997, the Apex Court has held as under:
"A lessor, with the best of title, has no right to resume possession extra-judicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise. The use of the expression 're- entry' in the lease-deed does not authorise extrajudicial methods to resume possession. Under law, the possession of a lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibit- ed; a lessee cannot be dispossessed otherwise than in due course of law. In the present case, the fact that the lessor is the State does not place it in any higher or better position. On the contrary, it is under an additional inhibition stemming from the requirement that all actions of Government and Governmental authorities should have a 'legal pedigree'. In Bishandas v. State of Punjab, (1962) 2 SCR 69: (AIR 1961 SC 1570), this Court said (at pp. 1574 and 1573 of AIR):
"We must, therefore, repel the argument based on the contention that the petitioners were trespassers and could be removed by an executive order. The argument is not only specious but highly dangerous by reason of its implications and impact on law and order."
"Before we part with this case, we feel it our duty to say that the executive action taken in this case by the State and its officers is destructive of the basic principle of the rule of law."
Therefore, there is no question in the present case of the Government thinking of appropriating to itself an extra-judicial right of re-entry. Possession can be resumed by Government only in a manner known to or recognised by law. It cannot resume possession otherwise than in accord- ance with law. Government is, accordingly, prohibited from taking possession otherwise than in due course of law."
15. In case of Krishna Ram Mahale (dead) by his L.R.s, v. Mrs. Shobha Venkat Rao reported in 1989 SC 2907, in para no. 8 of the judgment, the Apex Court has held as under:
"8. Mr. Tarkunde, learned Counsel for defendant No. 3, the appellant herein, rightly did not go into the appreciation of the evidence either by the Trial Court or the High Court or the factual conclusions drawn by them. It was, however, strongly urged by him that the period of licence had expired long back and the plaintiff was not entitled to the renewal of licence. It was submitted by him that in view of the licence having come to an end, the plaintiff had no right to remain in charge of the business or the premises where it was conducted and all that the plaintiff could ask for was damages for unlawful dispossess ion even on the footing of facts as found by the High Court. We find ourselves totally unable to accept the submission of Mr. Tarkunde. It is a 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.
16. In case of Krishna Ram Mahale (Supra), the Apex Court held that the respondents as she filed suit for recovery of possession of premises upon which she had entered as licensee to conduct the business of restaurant, she was subsequently dispossessed by the licenser unlawfully and behind her back, she was entitled with decree for recovery of possession. Since she was unlawfully dispossessed, it could not be said that the license having expired long back and the plaintiff not being entitled to renewal of license could only ask for damages for unlawful possession.
17. In case of Samir Sobhan Sanyal v. Tracks Trade Private Ltd. and others reported in (1996) 4 SCC 144. The Apex Court has held as under in paragraph no. 6 of the aforesaid judgment:
"6. It would thus be clear that without any decree or order of eviction of the appellant from the demised premises, he has been unlawfully dispossessed from the premises without any due process of law. The question, therefore, is: whether he should be allowed to remain in possession till his application under Order 21, Rules 98 and 99 is adjudicated upon and an order made. Though the learned counsel for the 1st respondent and also for the 3rd respondent, who is one of the transferees from the 6th respondent, sought to contend that the appellant has no right to remain in possession after the lessee, M/s. India Foils Ltd. had admitted by a resolution that the appellant has no right to remain in possession, we are not impressed with the arguments. At this state, we are only concerned with his admitted possession of the demised premises. What rights would flow from a contract between him and him employer is a matter to be adjudicated in his application filed under Order 21, Rules 98 3nd 99, CPC. At this stage, it is pre- mature to go into and record any finding in that behalf. The learned counsel for the 1st respondent also repeatedly sought to bring to our notice that on account of the orders of the Court Officer passed by the High Court the maintenance cost has been mounting up due to the delay in disposal of the proceedings in various courts. Even with regard to that, we are not impressed with the same. Since the letter of the law should strictly be adhered to, we find that high-handed action taken by the respondent Nos. 1, 3 and 6 in having the appellant dispossessed without due process of Haw, cannot be overlooked nor condoned. The Court cannot blink at their unlawful conduct to dispossess the appellant from demised property and would say that the status quo be maintained. If the Court gives acceptance to such high-handed action, there will be no respect for rule of law and unlawful elements would take hold of the due process of law for ransom and it would be a field day for anarchy. Due process of law should be put to ridicule in the estimate of the law-abiding citizens and rule of law would remain a mortuary."
18. In case of Rame Gowda (Dead) by Lrs. v. M. Varadappa Naidu (Dead) by Lrs. and another reported in (2004) 1 SCC 769, the Apex Court considering the law on subject has held as under:
"In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court. The person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force.
In the present case the Court has found the plaintiff as having failed in proving his title. Nevertheless, he has been found to be in settled possession of the property. Even the defendant failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff. The Trial Court therefore left the question of title open and proceeded to determine the suit on the basis of possession, protecting the established possession and restraining the attempted interference therewith. The Trial Court and the High Court have rightly decided the suit. It is still open to the defendant-appellant to file a suit based on his title against the plaintiff-respondent and evict the latter on the former establishing his better right to possess the property Where the suit for declaration of title and injunction is filed and the title is not clear, the question of title will have to be kept open without denying the plaintiff's claim for injunction in view of the fact that the plaintiff has been in possession and there is nothing to show that the plaintiff has gained possession by any unfair means just prior to the suit. It would suffice if he proves that he was in lawful possession of the same and that his possession was invaded or threatened to be invaded by a person who has no title thereof.
(Paras 7, 8, 11 & 12)"
19. Again in case of Subramaniaswamy Temple, Ratnagiri Vs. V. Kanna Gounder (Dead) by Lrs. reported in 2009 (106) RD 77, the Apex Court has held in para no. 11 & 13 as under:
"11. It is now well settled that in India, nobody can take possession of an immoveable property except in accordance with law. Respondent was a licensee under the appellant. He was evicted from the shop which was allotted in his favour. If he had encroached upon a portion of the Poramboke land, he could have been evicted by the temple on the basis of its possessory title.
12. If, thus, the temple was in prior possession of the land which would be evident from the classification made by the State Government and recognition of its right thereover, it also had right to initiate proceedings in a civil court for eviction of a rank trespasser. In a case of this nature, the court was required to consider as to who was in prior possession. Only in the event the respondent was in a position to show that he had a better title, he could continue with the possession. The only defence taken by him was that the suit land pertains to Survey No.144 and not Survey No.370/1. Such a contention has been negatived by the trial court as also by the first appellate court. A finding of fact had been arrived at. Having regard to the concurrent finding of fact as regards the possession of the parties, vis-a-vis, their respective title in and over the suit land. The High Court, while exercising its jurisdiction under Section 100 of the Code of Civil Procedure, was required to formulate a substantial question of law which might have arisen for its consideration. No question of law was framed far less any substantial question of law relating to identification of the property. The High Court, therefore, in our opinion completely misdirected itself in passing the impugned judgment.
13. The law operating in this connection having been noticed by this Court in Rame Gowda (D) by Lrs. v. M. Varadappa Naidu (D) by Lrs. and Anr. [(2004) 1 SCC 769], we need not enter into a deeper probe. Therein it was held :
"8. It is thus clear that so far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.
9. It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions."
20. In case of Ranjit Kaur v. Harmohinder Singh (Major) and others reported in 2012 (1) AWC 14 (SC), the Apex Court in para no. 11 has held as under:
"11. However, we find merit in the arguments of learned senior counsel for the appellant that the High Court was not justified in vacating the restraint order passed by the trial Court against the dispossession of his client. Learned counsel is right in his submission that even though in the decree of divorce, the appellant has not been given a right of residence and her occupation of the suit property can be treated as unauthorized, respondent No. 1 cannot evict her except after following the procedure established by law. The material placed on record shows that the appellant had entered into the property as the wife of respondent No. 1. Therefore, even though, after passing of the decree of the divorce she may not have a legal right to continue to remain in possession of the suit property, respondent No. 1 cannot be given liberty to forcibly evict her."
21. In case of Hanumanthappa v. Muninarayanappa (Supra), relied upon by the learned counsel for the petitioner, is not applicable to the facts of the present case as in Hanumanthappa v. Muninarayanappa (Supra), the appellant was in possession over the property in dispute pursuant to a compromise decree. The Apex Court held that appellant being in lawful possession of the property as an owner and the respondents being not party to the compromise decree, no injunction can be issued against the appellant lawful owner.
22. In case of Padhiyar Prahladji Chenaji (Supra), the Apex Court was considering the question whether in a case where plaintiff has lost so far as the title is concerned and the defendant against whom permanent injunction is sought, is the true owner of the land, whether the plaintiff is entitled to a relief of permanent injunction against the true owner, more particularly, when the plaintiff has lost so far as his title is concerned and can thereafter, the plaintiff be permitted to content that despite the fact that the plaintiff has lost so far as title is concerned, her possession be protected by way of injunction and that the true owner has to file a substantive suit claiming possession. Para no. 9 of the judgment is quoted as under:
"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."
23. In the present case, the question of title is yet to be adjudicated in the trial and the possession of plaintiff is admitted over the property in dispute. The law laid down by Apex Court in Padhiyar Prahladji (Supra) will not apply to the facts of the present case as in Padhiyar Prahladji (Supra) the plaintiff has lost so far as the title is concerned.
24. In the present case the possession of the plaintiff/respondent is admitted. Stand taken by defendants/petitioners is that plaintiff/respondent is residing in the house being son of defendants/petitioners. The possession of plaintiff/respondent cannot be held to be unauthorised, possession of plaintiff/respondent is permissive and plaintiff/respondent cannot be held to be trespasser.
25. The contention of the learned counsel for the petitioner is that the suit itself is not maintainable as no declaration of title has been sought by the plaintiff is misconceived. The law does not prohibit for filing a suit merely for injunction based on possession.
26. In case of T. V. Ramakrishna Reddy (Supra), relied upon by learned counsel for the petitioner while considering the question whether the learned Single Judge of the High Court was right in holding that the suit simpliciter for permanent injunction without claiming declaration of title as filed by the plaintiff was maintainable. The Apex Court relied upon the judgment in case of Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs and others reported in 1 (2008) 4 SCC 594 has held that where there are necessary pleadings regarding title and appropriate issue relating to title on which the parties lead evidence if the matter involved is simple and straight forward, the court may decide upon the issue regarding title. Even in suit for injunction, however, such cases are exception to the normal rule that the question of title will not be decided in suit for injunction.
In case of T. V. Ramakrishna Reddy (Supra), the Apex Court quoted in para no. 21 of Anathula Sudhakar (Supra) which is quoted as under:
"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 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.
27. Law relied upon by the defendants/petitioners does not lay down that under any circumstances suit bases on possession cannot be filed without seeking declaration of title. Question of title can be looked into in a suit for injunction unless the same is very complicated.
28. In case of Premji Ratan se Saha (Supra) relied upon by the learned counsel for the petitioner, the Apex Court held that injunction would not be issued against the true owner even assuming that the plaintiff has any possession, their possession wholly is unlawful possession of a trespasser and an injunction would not be issued in favour of a trespasser or a person who gained unlawful possession as against the person who is the true owner. This case is not applicable to the facts of the present case as the possession of the plaintiff/respondent is permissive though as per the case of the petitioners plaintiff is in possession being the son of the defendants/petitioners and the plaintiff/respondent cannot be said to a trespasser or a person who gained possession unlawfully against the true owner. Thus, in view of the law laid down by the Apex Court, it is clear that a person who is in settled possession cannot be dispossessed except in accordance with law.
29. In case of S. R. Ezaz v. The Tamil Nadu Handloom Weavers Co-operative Society Ltd. reported in 2002 (48) ALR 73, the Apex Court has held as under:
"In our view, if such actions by the mighty or powerful are condoned in a democratic country, nobody would be safe nor the citizens can protect their properties. Law frowns upon such conduct. The Court accords legitimacy and legality only to possession taken in due course of law. If such actions are condoned, the fundamental rights guaranteed under the Constitution of India or the legal rights would be given go bye either by the authority or by rich and influential persons or by musclemen. Law of jungle will prevail and 'might would be right' instead of 'right being might'. This Court in State of U.P. and others vs. Maharaja Dharmander Prasad Singh and others [(1989) 2 SCC 505] dealt with the provisions of Transfer of Property Act and observed that a lessor, with the best of title, has no right to resume possession extra-judicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise. Under law, the possession of a lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited. The Court also held that there is no question of Government withdrawing or appropriating to it an extra judicial right of re-entry and the possession of the property can be resumed by the Government only in a manner known to or recognized by law."
30. In the present case, the plaintiff has asked for a decree of injunction restraining the defendants from interfering in the peaceful possession and enjoyment of the plaintiff in respect of House No. N 638, S Block, Yashoda Nagar, Kanpur Nagar. In the plaint, the plaintiff has also claimed himself to be the owner of the property. So far as the possession of the plaintiff is concerned, the same is not denied by the defendants/petitioners as it is admitted that the plaintiff is residing in the house with the consent of the defendants being their son, however, the defendant in suit have claimed ownership in the property in dispute. The question of ownership will be decided only after framing of issues in this regard and considering the evidence of the parties at the time of trial of the suit. Since, the possession of the plaintiff is admitted, the lower appellate court has committed no illegality in protecting possession of the plaintiff.
31. Consequently, the writ petition fails and is accordingly dismissed.
Order Date :- 06.02.2024 Ved Prakash (Manish Kumar Nigam, J.)