Allahabad High Court
Ram Singh vs Amar Singh And Others on 19 January, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 6 Reserved A.F.R. Case :- SECOND APPEAL No. - 313 of 1997 Appellant :- Ram Singh Respondent :- Amar Singh and others Counsel for Appellant :- Mr. Vijay Kumar Rai, Advocate Counsel for Respondent :- Mr. K.K.Tiwari, Advocate Hon'ble J.J. Munir,J.
This is a plaintiff's second appeal arising out of a suit for permanent prohibitory injunction.
2. This appeal was admitted to hearing on 1st of April, 1997 on the sole substantial question of law, to wit: "Whether on the basis of positive averments in the written statement of the defendants that they were owner of the suit property on the basis of the Will and were in possession of the suit property as against the plaintiff's case of the title and possession, lower appellate Court should have dismissed the suit on the mere ground of absence of cause of action?"
3. The facts giving rise to this appeal are these:
Ram Singh instituted Original Suit No. 494 of 1992 in the Court of the Munsif, Rampur against Amar Singh and six other defendants, seeking relief of permanent prohibitory injunction to the effect that the defendants, their servants and agents be restrained from forcibly dispossessing the plaintiff from the suit property comprising Plot Nos. 82 and 190 or interfering in his possession in any manner whatsoever. Amar Singh, defendant No. 1 is the plaintiff's father's brother, whereas other defendants are said to be his father's brother's sons. The plaintiff-appellant, Amar Singh, who shall hereinafter be called ''the plaintiff', was a young man of 20 years, when he instituted the suit. His father, Kunwar Sen passed away after a brief illness on 13th of January, 1990. He was otherwise fit and healthy and aged about 50 years at the time of his demise. The plaintiff's father was the bhumidhar in possession of Plot No. 82, admeasuring 0.097 hectare and Plot No. 190, admeasuring 0.507 hectare, situate at Village Sendu Kaa Majra, Tehsil Swar, District Rampur. The said property shall hereinafter be called ''the suit property'.
4. Upon the sudden death of the plaintiff's father, the plaintiff was left all alone, his mother having pre-deceased his father. The suit property, in consequence of his father's death, devolved upon the plaintiff and his name was recorded in the revenue records on 05.02.1990 by intestate succession. The plaintiff, thus, became bhumidhar in possession of the suit property.
5. It is the plaintiff's case that defendant No.1, his father's brother and the other defendants, his cousins, are vicious men, who harbour foul intentions. The defendants, without any right, foster the desire to take possession of the suit property, harm the plaintiff, posing a threat to his life and property. The defendants' intention is to usurp the plaintiff's property. It is the plaintiff's case that the defendants have no title, interest or share in the said property nor are they in possession thereof. The defendants allege some kind of a right to the suit property on the basis of a Will. After the demise of the plaintiff's father, the defendants in order to harm the plaintiff, have secured some bogus and fictitious Will, purportedly executed by the plaintiff's father in the defendants' favour.
6. It is the plaintiff's case that his father was in good health and died after a brief illness. The Will attributing to him a testamentary disposition is the product of forgery. It is void. It has no binding effect upon the plaintiff. The plaintiff is the only son and the sole heir entitled to inherit his father's estate.
7. According to the plaint case, the defendants, without any right and in breach of the law, on 21.07.1992 attempted to forcibly trespass into the suit property and endeavoured to till it. They wanted to forcibly dispossess the plaintiff, but with the aid of third parties, the plaintiff repelled the attempted encroachment by the defendants. The defendants, however, went away extending death threats as also threats about forcibly taking possession of the suit property. It is then averred that in the event the defendants succeed in forcibly dispossessing the plaintiff, he would suffer irreparable loss and injury. The defendants, upon the plaintiff's efforts to amicably settle the matter, have declined, forcing the plaintiff to institute the present suit.
8. Defendants Nos. 1 to 6 put in a joint written statement. They generally denied the plaintiff's allegations and mostly pleaded through additional pleas. It is not disputed by the defendants that the recorded tenure holder of the suit property was Kunwar Sen, the plaintiff's father. In his lifetime, Kunwar Sen, according to the defendants, had executed a Will in the defendants' favour. After Kunwar Sen's demise, it is the defendants, who are in possession, tilling and reaping the crops. The defendants sought mutation of their names on the basis of the Will left behind by Kunwar Sen by moving the Tehsildar, Swar, District Rampur. The Tehsildar vide his order dated 26.07.1990 passed in Case No. 164/89-90 had ordered mutation of the defendants' name alongside the plaintiff on the basis of Kunwar Sen's last Will and testament.
9. The defendants and the plaintiff are co-sharers and co-tenure holders of the suit property, wherein the plaintiff had a one-third share. According to the defendants, on 05.02.1990, the plaintiff in connivance with the Kanoongo and the Lekhpal had got the entire suit property recorded in his name illegally, but the Kanoongo's order dated 05.02.1990 was set aside by the Tehsildar, Swar vide his order dated 26.07.1990. Since the plaintiff and the defendants are co-sharers and co-tenure holders in the suit property, the plaintiff is not entitled to an injunction.
10. It is the defendants' further case that defendant No. 7, Harish Chandra is a minor, aged 12 years. The plaintiff has not proceeded against him in accordance with the provisions of Order XXXII Rule 1 of the Code of Civil Procedure, 1908 (for short, ''the Code'). The suit deserves to be dismissed on this ground. The plaintiff has played fraud on the Court and secured a temporary injunction on insufficient ground. Now, he wants a decree likewise. The defendants, on the basis of the aforesaid case, have asked the suit to be dismissed with special cost.
11. Upon the pleadings of parties, the following issues were framed by the Trial Court (translated into English from Hindi):
"1. Whether the plaintiff is the bhumidhar in possession of Plot No. 82, admeasuring 0.097 hectare and Plot No. 190, admeasuring 0.507 hectare?
2. Whether the plaintiff has no cause of action to institute the suit?
3. Whether the true owner of the property in dispute was Kunwar Sen, who left a Will in favour of the defendants and after his demise, it is the defendants alone, who are the owners in possession of the property in dispute?
4. Whether the suit is undervalued and the court-fee paid insufficient?
5. Whether defendant No. 7, Harish Chandra is a minor and the suit is barred by the provisions of Order XXXII Rule 1 CPC?
6. To what relief is the plaintiff entitled?"
12. The plaintiff, in support of his case, examined three witnesses, to wit, PW-1, Ram Singh, the plaintiff himself, Gokal, PW-2 and Ram Lal, PW-3. On behalf of the defendants, two witnesses were examined, that is to say, Amar Singh, DW-1, who is defendant No. 1 to the suit and Sukhlal, DW-2.
13. None of the Courts have referred to a summary of the documentary evidence in the impugned judgments, but on going through the records, this Court finds that the plaintiff filed two documents through a list, paper No. 9-C. The first of these documents is Ex. 1, a certified copy of an extract of the Six Yearly Khatauni for the fasli years 1395-1400, issued on 09.08.1990, relating to the suit property. The other document filed by the plaintiff bears Ex. No. 2. It is a Khasra relating to the suit property for the Fasli Year 1399.
14. On behalf of the defendants, an extract of a certified copy of the Six Yearly Khatauni for the period 1395-1400 Fasli was filed and marked as Ex. Ka-1.
15. The learned Munsif, who tried the suit, found for the plaintiff on Issues Nos. 1 and 3 as well as Issue No. 2. Issue No. 5 was also decided in favour of the plaintiff and against the defendants. In consequence of his findings on the various issues, the learned Munsif decreed the suit by his judgment and decree dated 30.03.1996.
16. The defendants - all seven, appealed the Munsif's decree to the District Judge of Rampur vide Civil Appeal No. 40 of 1996. The appeal came up for hearing before the Additional District Judge-III, Rampur on 18.12.1996, who allowed the appeal by his judgment and decree of the said date, reversing the Trial Court and dismissing the suit.
17. Aggrieved, the plaintiff has preferred the instant appeal from the appellate decree.
18. Heard Mr. Vijay Kumar Rai, learned Counsel for the plaintiff and Mr. K.K. Tiwari, learned Counsel appearing on behalf of the defendants.
19. Both the Courts below have concurrently opined that the plaintiff is the owner in possession of the suit property. Apparently, the plaintiff has inherited the suit property from his father, Kunwar Sen, whose title is not disputed by the defendants either. The plaintiff is the only heir entitled to succeed to his father's bhumidhari. The Courts below have accepted that the plaintiff succeeded to it and also established his cultivatory possession over the same. The plaintiff is recorded in the revenue records, also on that basis. The defendants, no doubt, have attempted to question the plaintiff's exclusive title by succession and set up a Will, that has not seen the light of the day in the suit. It was never produced in evidence by the defendants.
20. The defendants have merely asserted a co-sharers' right, which they have got on the basis of a Will that they claim was left in their favour by Kunwar Sen. The Will never being produced in evidence before the Courts below by the defendants, much less proved by examining the marginal witnesses in the manner provided by law, the Courts below have rightly discarded the defendants' case. The plaintiff's case, based on succession, has been accepted, both about title and possession to the suit property. But, the question here is whether the plaintiff's possession has been threatened by the defendants, which may be protected by the Court's injunction.
21. The plaintiff wants his possession protected, because the defendants by their stand in their written statement and elsewhere in proceedings for mutation, have challenged the plaintiff's exclusive title and possession to the suit property on the basis of Kunwar Sen's alleged Will. The revenue authorities have not accepted the defendants' case to be recorded on the basis of the Will that they propound; nor have the Courts below. As already said, the moot question is: whether the defendants asserting a right to the suit property, claiming a share therein, is threat enough or a threat at all to the plaintiff's possession in the suit property? This is what the substantial question involved in this appeal is about.
22. The learned Munsif has regarded the threat emanating from the defendants' stand in the written statement and evidence claiming a right on the basis of Kunwar Sen's alleged Will to be good enough to constitute a cause of action for the plaintiff to seek injunction, protecting his possession. The learned Munsif has construed the cause of action in the widest sense of the term to include all facts on record, that may entitle the plaintiff to relief. In the learned Munsif's view, the stand of the defendants, claiming in derogation of the plaintiff's right a share in the suit property on the basis of the Will must be held to be a cause of action, entitling the plaintiff to an injunction, protecting his possession. He has also looked into some evidence of a threatened dispossession that he has regarded as sufficient to translate the defendants' claim to the suit property into a threatened invasion of the plaintiff's right, which the plaintiff is entitled to protect by the Court's injunction.
23. The learned Counsel for the plaintiff before us has argued in the same vein to submit that given the acknowledged stand of the defendants, which is in derogation of the plaintiff's exclusive title and possession, the plaintiff cannot be non-suited for want of a cause of action, which the Lower Appellate Court has done.
24. The learned Counsel for the defendants has said that there is absolutely no evidence about any kind of a trespass or an apprehended trespass by the defendants in the suit property, entitling the plaintiff to an injunction.
25. The Lower Appellate Court has looked into the plaintiff's case in the plaint and his evidence in the witness-box, where he has testified as PW-1.
26. Upon a careful scrutiny of the plaintiff's plea regarding the threatened invasion of his right and his testimony in the witness-box, the Lower Appellate Court has come to the conclusion that the plaintiff in his evidence failed to support his case about a trespass or threatened encroachment of the suit property by the defendants so as to disclose a cause of action for the grant of an injunction.
27. The Lower Appellate Court has taken note of the fact that the suit is not one for cancellation of the Will that the defendants have propounded to lay claim to the suit property. It is to prevent an unauthorized act of apprehended dispossession or encroachment into the suit property, that is, the cause of action and the relief claimed by the plaintiff is to prevent that encroachment. The Lower Appellate Court has particularly considered the plaintiff's cross-examination with reference to his pleaded case to find that there is no threat to his possession by the defendants, which the plaintiff seeks to be protected by the Court's injunction.
28. This Court will also briefly allude to the plaintiff's case and evidence to answer the substantial question of law involved in this appeal, but before that is done, it is imperative to do a survey of the law bearing on the point as to what a plaintiff must establish in order to succeed in an action brought to protect his possession, may be backed by title, from a claimed encroachment by the defendant. It is one thing to establish for the plaintiff that he has title to the suit property and also that he has possession; but, quite another to establish his case for the grant of an injunction to protect it. Even if the plaintiff does not have the title to the suit property, but establishes his settled possession, he is entitled to be protected absolutely against everyone, except the true owner or one who has title. The plaintiff may also be entitled to protect his possessory title against the true owner or the title-holder by a limited injunction, not to be dispossessed, except in accordance with law. But, that is besides the point and mentioned in order to place the question involved here in perspective.
29. No doubt, the plaintiff here has both title and possession to the suit property and there is no issue about it. The question is what cause of action must the plaintiff disclose and then prove, in order to entitle him to an injunction to protect his possession, founded on title or possessory title. The cause of action to protect possession must emanate from an allegation about a threatened dispossession at the hands of the defendants. The threatened dispossession being an apprehended injury must be proved by the plaintiff through unimpeachable evidence. If the plaintiff does not plead at all that he has a threat to his possession as regards the suit property, it may be said that he has no cause of action. If he alleges threat in his pleadings, but fails to prove it to the hilt by unimpeachable evidence, it would be a case for failure of his action; not a case of non-disclosure of a cause of action. Here, it is the former case; not the latter.
30. The plaintiff in paragraph Nos. 5, 8, 9 and 10 of the plaint has pleaded as follows:
"5- यह कि वादी अपने पिता का अकेला पुत्र है। प्रतिवादीगण निहायत असरदार व शरपसन्द तथा बदनियत किस्म के व्यक्ति हैं और वह बिला हक व खिलाफ वादी की आराजी का वादी को अकेला जानकर कब्जा करना चाहता है तथा वादी को जानी व माल नुकसान पंहुचाना चाहते हैं तथा प्रतिवादीगण हर समय जान से मारने की फिक्र में लगे हुए हैं ताकि वादी को जान से मारकर उसकी समस्त जायदाद हड़प लें।
8- यह कि प्रतिवादीगण ने बिला हक व खिलाफ कानून दिनांक 21.07.1992 को आराजी निजाई पर जबरदस्ती कब्जा करने तथा उसे जोतने की कोशिश की और वादी को जबरदस्ती आराजी निजाई से बेदखल करना चाहा लेकिन वादी ने दीगर लोगों की मदद से प्रतिवादीगण को उनके मकसद में कामयाब नहीं होने दिया लेकिन प्रतिवादीगण वादी को आइन्दा मारने व आराजी निजाई पर जबरदस्ती कब्जा करने की धमकी देते हुए चले गये।
9- यह कि अगर प्रतिवादीगण अपने मकसद में कामयाब हो गए और उन्होंने वादी की आराजी पर जबरदस्ती कब्जा कर लिया तो वादी को नाकाबिले तलाफी नुकसान होगा तथा वादी तबाह व बर्बाद हो जायेगा। प्रतिवादीगण मना करने पर सुनवा नहीं हो रहे हैं मजबूरन वादी नालिशी है।
10- यह कि बिनाये दावा व तारीख 21.07.1992 को प्रतिवादीगण द्वारा वादी को आराजी निजाई से जबरदस्ती बेदखल करने की कोशिश करने से तथा मना करने पर सुनवा न होने से बमुकाम रामपुर अन्दर हदूद अदालत हाजा पैदा हुआ तथा न्यायालय को वाद की सुनवाई का क्षेत्राधिकार प्राप्त है।"
31. The plaintiff, who has testified in the witness-box as PW-1, has stated thus in his examination-in-chief:
"विवादित आराजी पर प्रतिवादीगण जबरदस्ती कब्जा करना चाहते थे इसलिए मैंने दावा कर दिया। प्रतिवादीगण के विरुद्ध मैंने तहसीलदार स्वार के यहां कार्यवाही की थी जिससे इनका नाम खारिज हो गया था और खतौनी में भी उसका अमल दरामद हो गया था। प्रतिवादीगण बदनियती के तौर पर मेरी आराजी पर नाजायज कब्जा करना चाहते हैं जिसका उन्हें कोई अधिकार नहीं है।"
32. By contrast, in his cross-examination, testifying as PW-1, has said:
"...... मैंने यह दावा इसलिए किया है कि वसीयतनामा झूठा है खारिज किया जाये इसी बात के बाबत मैंने अदालत से सहायता मांगी है। उस वसीयतनामे की तारीख मुझे याद नहीं जिसको मैंने खारिज कराना चाहा हो। मैंने सिर्फ यही सहायता मांगी है कि वसीयतनामा फर्जी है उसकी जांच की जाये।
...... प्रतिवादीगण जोतने बोने कभी नहीं आये न उन्होंने कोई हक मांगा। अब से चार पांच वर्ष पहले भी उन्होंने नहीं जोता बोया । यह कहना गलत है कि 21.7.92 को प्रतिवादीगण विवादित सम्पत्ति को जोता हो और तब से मैं ही जोत बो रहे हैं।"
(emphasis by Court)
33. The other witness examined on behalf of the plaintiff, that is to say, PW-2, has also not spoken a word in his entire testimony about a threat of dispossession or encroachment by the defendants that the plaintiff has faced in the past, or still faces. PW-3 has, likewise, also not said anything in his testimony relating to a threat of encroachment faced by the plaintiff. All these witnesses have denied execution of the Will by Kunwar Sen in the defendants' favour and affirmed the fact that the plaintiff is in cultivatory possession of the suit property after his father's demise.
34. The plaintiff in his cross-examination has explicitly said that he has instituted the present suit, because he wants the Court to cancel the Will, which is bogus. He has made it explicit that the only assistance he wants from the Court is to examine the validity of the forged Will that the defendants propounds. The plaintiff has then gone on to say in his cross-examination that the defendants have never come over to cultivate the suit property nor have they demanded any right in it. They have not cultivated the suit property 4-5 years back either. The most crucial words by PW-1 in his cross-examination are that it is incorrect to say that on 21.07.1992, the defendants tilled the suit property. Rather, the plaintiff said about himself that he is cultivating it ever since.
35. A perusal of the plaintiff's testimony does not speak a word about a threatened invasion of his possession in the suit property. Rather, he disowns any threat to his possession ever being extended by the defendants. It is for the said reason that the Lower Appellate Court has held the plaintiff disentitled to an injunction saying that there is no cause of action disclosed. In saying that, the Lower Appellate Court has gone slightly wrong, as already indicated hereinabove. A cause of action is indeed disclosed by the plaintiff very categorically in his pleadings, but he has not been able to prove his case of threatened or apprehended dispossession from the suit property by the defendants by his evidence. This is not to say that the plaintiff has not been able to prove his title or possession to the suit property, which he has done in ample measure. Rather, it is the defendants, who have not been able to establish their title to the suit property on the basis of the Will that they propound. They have also not been able to establish their possession in the suit property.
36. The suit being one for injunction to protect the plaintiff's possession from a threatened or impending act of disturbance thereof by the defendants, it was incumbent for the plaintiff to prove that. The plaintiff appears to have led evidence to establish his succession and dispel the defendants' Will by his evidence as if it were a suit to declare the defendants' Will void or seek a cancellation thereof. But, that is not what the suit is about. The cause of action in the suit is a very limited one and it is only that which the plaintiff has not been able to prove, to wit, a threatened invasion of the plaintiff's possession by the defendants, which needs to be protected. In this regard, reference may be made to a Bench decision of this Court in Hafiz Muhammad Ibrahim And Others. vs Pande Chandan Singh And Others, (1921) 63 Ind Cas 727, where it has been held:
"Before an injunction can be granted, the applicant must establish a legal right. He must then show an actual or threatened invasion of that legal right by the particular person ageist whom he wishes to claim an injunction, and he must give evidence which justifies the Court in thinking that there is a real substantial likelihood that the wrongful act complained of or apprehended will be repeated or done unless restrained by the Court. The evidence was not prepared in a way to bring those matters out and the Judge seems to as to have granted the injunction in both instances in a very perfunctory way. We are of opinion for the same reasons that we cannot grant an injunction directing the defendants, not to interfere with repairs of the chabutra."
37. The Karnataka High Court in R.G. Janthakal v. Bharat Parikh & Co., 1981 SCC OnLine Kar 72 dealing with an issue of the kind that arises for consideration in this case, observed:
"9. I am unable to accede to that argument. The proper thing for the lower appellate Court would have been in the light of the submission of the defendant was to dismiss the suit (appeal) with the observation that in the event of the defendant, in any way, interfering with the peaceful possession and enjoyment of the plaintiff, the plaintiff would be at liberty to seek afresh an injunction. Instead of doing that, without discussing either the evidence on record or recording a finding that the defendant at any time had in fact interfered in some manner with the peaceful possession and right to carry on the mining operations in plaint schedule B area by plaintiffs, it was not proper for the lower appellate Court to grant injunction particularly when prayer for declaration did not relate to immoveable property namely, mining area in plaint schedule B area.
10. It is well settled principle of law now that injunction can be issued only on proof of actual interference or threat of interference and not in the absence of it........."
38. The Culcatta High Court in Barid Baran Laha v. Manjuri Ghoshal, 2011 SCC OnLine Cal 204 considering the question about the proof of threat before an injunction can be granted remarked:
"12. It appears from the judgment of learned Trial Court that he placed much reliance on some portions of evidence of present respondent/defendant and came to the conclusion that the possession of appellant plaintiffs was under threat. The relevant parts of said depositions of respondent/defendant which learned Trial Court gave special emphasis are quoted below:--
"I am deprived of from my constitutional right to enjoy my property". Again in paragraph 22A of the affidavit D.W. 1 admitted "in spite of the said declaration by valid competent Courts, the plaintiffs are not considering the suit property to me." Even in cross-examination D.W. 1 stated the following. "The statement that I claim ownership and in spite of claiming ownership I cannot enjoy the suit property is correct. It is fact that at present properties are in possession of the plaintiffs. They are not delivering the possession of the properties in my favour."
13. Admittedly, for proper appreciation of evidence of a witness, the entire evidence is required to be read as a whole. Apart from that even if I examine those chosen out parts of statements of respondent/defendant, still it appears that there was no threatening whatsoever to the appellant/plaintiffs for dispossession. Learned Lower Appellate Court was justified in holding that there was no evidence whatsoever to show that present respondent/defendant was planning to sell out suit property and/or to dispossess the appellant/plaintiffs therefrom."
39. Before returning an answer to the substantial question of law framed in this appeal, it must be remarked that here is a case, where the plaintiff has proved both his title and possession to the suit property. All that he has failed in proving is a threatened invasion of his possession at the time when he instituted the suit. The consequence would be that the dismissal of his suit would in no way debar the plaintiff from bringing in an action to protect his possession, should there be ever in future a threat to his peaceful possession of the suit property at the hands of the defendants or anyone else claiming through or under them.
40. The substantial question of law framed in this appeal is answered in the manner that in the face of averments in the written statement by the defendants that they were owners of the suit property on the basis of the Will and had possession too as against the plaintiff's case of title and possession, the Lower Appellate Court should not have dismissed the suit on the ground of absence of cause of action, but dismissed it for the plaintiff's failure to prove his case by evidence regarding the threat to his peaceful possession.
41. Thus, for reasons slightly different than those that have weighed with the Lower Appellate Court, this Court concurs in the conclusion.
42. In the result, this second appeal fails and is dismissed. In the circumstances of the case, parties shall bear their own costs in all Courts.
43. Let a decree be drawn up accordingly.
Order Date :- 19.1.2023 Anoop (J.J. Munir, J.)