Himachal Pradesh High Court
Sh. Sagar Chand Nayyar (Since Deceased) ... vs Smt. Sarishta Devi on 16 May, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 94 of 2017
Decided on: 16.5.2017
Sh. Sagar Chand Nayyar (since deceased) through LR Smt. Chanchal
Nayyar ...Appellant.
.
Versus
Smt. Sarishta Devi ...Respondent.
Coram
The Hon'ble Mr.Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? No.
For the appellant: Mr. Anand Sharma, Advocate.
For the respondent: Mr. S.R. Chauhan, Advocate
Justice Tarlok Singh Chauhan, Judge (Oral)
Looking to the nature of the order I propose to pass, it is not necessary to set out the facts in detail. Suffice it to state that the plaintiff filed a suit for declaration and permanent prohibitory injunction against the defendant based on the plea of adverse possession. The plea of adverse possession was turned down by the learned trial court, as being not available to the plaintiff, in view of the judgment rendered by the Hon'ble Apex Court in Gurudwara Sahib vs. Gram Panchayat Village Sirthala and Anr., (2014) 1 SCC 699.
2. Aggrieved by the judgment and decree, the defendant/ appellant filed an appeal before the First Appellate Court, who without rendering any findings on the question as to which of the parties is in actual possession of the suit land, allowed the appeal by holding that the judgment rendered in Gurudwara Sahib's case (supra) was ::: Downloaded on - 19/05/2017 23:59:40 :::HCHP 2 rendered per incuriam as it did not take into consideration the earlier law laid down by a Bench of equal strength of Hon'ble Supreme Court.
This would be clearly evident from the observations reproduced below:
.
"18. The question whether a person in unauthorized possession is entitled to seek injunction to restrain a true owner from dispossessing him or not was considered by the Hon'ble Supreme Court in 'Premji Ratansey Shah and others Vs. Union of India and others (1994) 5 SCC 547" and it was held that before seeking an injunction, plaintiff has to show some interest in the property. Since a trespasser has no interest in the property, therefore, he is not entitled to seek injunction against a true owner. It was observed:-
"The question, therefore, is whether an injunction can be issued against the true owner. Issuance of an order of r injunction is absolutely a discretionary and equitable relief.
In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.
5. 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. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner.::: Downloaded on - 19/05/2017 23:59:40 :::HCHP 3
19. This proposition was reiterated in 'Sapan Sukhdeo Sable and others vs. Assistant Charity Commissioner (2004) 3 SCC 137, wherein it was observed:
"24. There are two different sets of principles, which have to .
be borne in mind regarding course to be adopted in case of forcible dispossession. Taking up the first aspect, it is true that where a person is in settled possession of property, even on the assumption that he has no right to remain in property, he cannot be disposed by the owner except by recourse of law. This principle is laid down in Section 6 of the Specific Relief Act, 1963. That section says that if any person is dispossessed without his consent from immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may r be set up in such suit. That a person without title but in "settled" possession - as against mere fugitive possession - can get back possession if forcibly dispossessed or rather, if dispossessed otherwise than by due process of law, has been laid down in several cases. It was so held by this Court in Yashwant Singh v. Jagdish Singh, AIR 1968 SC 620, Krishna Ram Mahate vs. Shobha Venkata Rao, 1989 (4) SCC 131, at p. 136, Ram Rattan v. State of U.P., 1977 (1) SCC 188 and State of U.P. v. Maharaia Dharmender Prasad Singh, 1989 (2) SCC 505. The leading decision quoted in these rulings is the decision of the Bombay High Court in K.K. Verma v. Union of India, AIR 1954 Bom. 358.
25. Now the other aspect of the matter needs to be notice. Assuming a trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963 can the trespasser seek injunction against the true owner? This question does not entirely depend upon Section 6 of the Specific Relief Act, but mainly depends upon certain general principles applicable to the law of injunctions and as to the scope of the exercise of discretion while granting injunction? In Mahadeo Savlaram Shelke v.::: Downloaded on - 19/05/2017 23:59:40 :::HCHP 4
Pune Municipal Corporation, 1995 (3) SCC 33, it was held after referring to Woodrofe on "Law relating to injunction; L.C. Goyal 'Law of injunctions' David Bean 'Injunction' Jayce on Injunctions and other leading Articles on the subject that the appellant who was a trespasser in .
possession could not seek injunction against the true owner. In that context this Court quoted Shiv Kumar Chadha v. M.C.D., 1993 (3) SCC 1661, wherein it was observed that injunction is discretionary and that:
"Judicial Proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court".
26. Reference was also made to Dalpat Kumar v. Prahlad Singh, 1992(1) SCC 719 in regard to the meaning of the r words 'prima facie case' and 'balance of convenience' and observed in Mahadeo's case (sura) that:
It is settled law that no injunction could be granted against the owner at the instance of a person in unlawful possession.
20. Therefore, in view of the binding precedents of Hon'ble Supreme Court, it was not permissible for the plaintiff to seek injunction against the true owner and the learned trial Court erred in granting the injunction in favour of plaintiff.
21. Although, subsequently in 'Gurudwara Sahib's case (supra), it had been laid down by the Hon'ble Supreme Court that as the appellant was in possession of the suit land since long and had been granted the decree for injunction, the possession of the appellant could not be disturbed except by due process of law, but it is a matter of fact that present judgment and the earlier judgments, as discussed above, are of equal authority of the Hon'ble Supreme court i.e. they all have been rendered by the Double Bench and if two judgments of the equal authority of the Hon'ble Supreme Court cannot stand together, the judgment rendered per incuriam, cannot be preferred (Please See : New India Assurance Co. Ltd. vs. Rita Devi, 1998 (1) Civil LJ 882).::: Downloaded on - 19/05/2017 23:59:40 :::HCHP 5
I have heard learned counsel for the parties and have gone through the material placed on record.
3. As regards the declaration based upon the plea of .
adverse possession, it is now well settled that such plea can only be used as the shield and not as a sword, as has been held in Gurudwara Sahib's case (supra), wherein, it was observed as under:-
"8.There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence."
4. Now further question as to whether the law laid down in Gurudwara Sahib's case (supra) is per incuriam as held by the learned First Appellate Court.
5. To my mind, this finding is clearly erroneous and otherwise reflects judicial impropriety on the part of the learned First Appellate Court. Judicial discipline requires decorum known to law warrants that appellate directions should be followed in the hierarchical system of court which exists in this country. It is necessary for each lower tier to accept loyally the decisions of the higher tier. The judicial system only works if someone is allowed to have the last word, and if that last word once spoken is loyally accepted. This hope was expressed by Hon'ble Supreme Court in Assistant Collector of Central Excise, Chandan Nagar, ::: Downloaded on - 19/05/2017 23:59:40 :::HCHP 6 West Bengal v. Dunlop India Ltd. And others, 1985 (1) SCC 260 in the following manners:-
"We desire to add and as was said in Cassell & Co. Ltd. V. Broome .
we hope it will never be necessary for us to say so again that "in the hierarchical system of courts" which exists in our country, "it is necessary for each lower tier", including the High Court, "to accept loyally the decisions of the higher tiers". "It is inevitable in hierarchical system of courts that there are decisions of the Supreme appellate tribunal which do not attract the unanimous approval of all members of the judiciary.... But the judicial system only works if someone is allowed to have the last word and that last word, once spoken, is loyally accepted." The better wisdom of the court below must yield to the higher wisdom of the court above. That is the strength of the hierarchical judicial system. In Cassel & Co. Ltd. V. Broome, commenting on the Court of Appeal's comment that Rookes v. Barnard was rendered per incuriam, Lord Diplock observed:
The court of Appeal found themselves able to disregard the decision of this House in Rookes v. Barnard by applying to it the label per incuriam. That label is relevant only to the right of an appellate court to decline to follow one of its own previous decisions, not to its right to disregard a decision of a higher appellate court or to the right of a Judge of the High Court to disregard a decision of the Court of Appeal.
It is needless to add that in India under Article 141 of the Constitution the law declared by the Supreme Court shall be binding on all courts within the territory of India and under Article 144 all authorities, civil and judicial in the territory of India shall act in aid of the Supreme Court."
6. The decisions of the Hon'ble Supreme Court are of significance not merely because thus constitute an adjudication of the rights of the parties and resolve the disputes between them, but also because, in doing so they embody a declaration of law ::: Downloaded on - 19/05/2017 23:59:40 :::HCHP 7 operating as a binding precedent for future cases. It is more than settled that on the law having been declared by the Hon'ble Supreme Court, it is the duty of the every Court whatever be it has to act in .
accordance with Article 141 of the Constitution of India and apply the law so laid down. Judicial discipline to abide by the declaration of law of the Hon'ble Supreme Court cannot be foreshaken by any Court be, if the highest Court in the State oblivious of Article 141 of the Constitution.
7. Adverting to the facts, it would be noticed that even the judgments of the Hon'ble Supreme Court in the impugned judgment have been totally misread by the learned First Appellate Court.
8. The judgments quoted in the order have been totally misread by the learned First Appellate Court. Even in Sapan Sukhdeo Sable's case (supra), the Hon'ble Supreme Court had categorically held that where a person is in settled possession of property, even on the assumption that he has no right to remain in property, he cannot be dispossessed by the owner except by recourse of law. This, in fact, is the settled position and reference in this regard can be conveniently be made to the judgment of the Hon'ble Supreme Court in Krishna Ram Mahale Vs. Shobha Venkat Rao, AIR 1989 SC 2097, wherein it was held as under:
"8.........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 ::: Downloaded on - 19/05/2017 23:59:40 :::HCHP 8 by the owner of the property except by recourse to law. If any authority were needed for that proposition, we could refer to the decision of a Division Bench of this Court in Lallu Yeshwant Singh v. Rao Jagdish Singh, (1968) 2 SCR 203 at pp.208-210: (AIR 1968 SC 620 at pp.622-23). This Court in that judgment cited with approval .
the well-known passage from the leading Privy Council case of Midnapur Zamindary Company Limited v. Naresh Narayan Roy 51 Ind App 293 at p. 299: (AIR 1924 PC 144) where it has been observed (p-208) (of SCR): (at p.622 of AIR):
"In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court."
9. This legal position was thereafter reiterated by the Hon'ble Supreme Court in Walter Louis Franklin(Dead) through LRs Vs. George Singh(Dead) through LRs, (1997) 3 SCC 503.
10. Yet, again when the matter came before the Hon'ble three Judges in Rame Gowda (Dead) by LRs. Vs. M.Varadappa Naidu(Dead) by LRs & anr (2004) 1 SCC 769, it was reiterated by the Hon'ble Supreme Court that an occupant in "settled possession"
cannot be dispossessed without recourse to law. The relevant observations are re-produced here-in-under:
"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.::: Downloaded on - 19/05/2017 23:59:40 :::HCHP 9
7. The thought has prevailed incessantly, till date, the last and latest one in the chain of decisions being Ramesh Chand Ardawatiya Vs. Anil Panjwani (2003) 7 SCC 350. In-between, to quote a few out of several, in Lallu Yeshwant Singh (dead) by his legal representative Vs. Rao Jagdish Singh and others (1968) 2 SCR .
203, this Court has held that a landlord did commit trespass when he forcibly entered his own land in the possession of a tenant whose tenancy has expired. The Court turned down the submission that under the general law applicable to a lessor and a lessee there was no rule or principle which made it obligatory for the lessor to resort to Court and obtain an order for possession before he could eject the lessee. The court quoted with approval the law as stated by a Full Bench of Allahabad High Court in Yar Mohammad Vs. Lakshmi Das (AIR 1959 All. 1,4), "Law respects possession even if there is no title to support r it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a court. No person can be allowed to become a judge in his own cause."(AIR p.5, para 13) In the oft- quoted case of Nair Service Society Ltd. Vs. K.C. Alexander and Ors. (1968) 3 SCR 163, this Court held that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. When the facts disclose no title in either party, possession alone decides. The court quoted Loft's maxim - 'Possessio contra omnes valet praeter eur cui ius sit possession is (he that hath possession hath right against all but him that hath the very right)' and said: (AIR p.1175, para 20).
"A defendant in such a case must show in himself or his predecessor a valid legal title, or probably a possession prior to the plaintiff's and thus be able to raise a presumption prior in time".::: Downloaded on - 19/05/2017 23:59:40 :::HCHP 10
In M.C. Chockalingam and Ors. Vs. V. Manickavasagam and Ors. (1974) 1 SCC 48, this Court held that the law forbids forcible dispossession, even with the best of title. In Krishna Ram Mahale (dead) by his Lrs. Vs. Mrs. Shobha Venkat Rao (1989) 4 SCC 131, it was held 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. In Nagar Palika, Jind Vs. Jagat Singh, Advocate (1995) 3 SCC 426, this Court held that disputed questions of title are to be decided by due process of law, but the peaceful possession is to be protected from the trespasser without regard to the question of the origin of the possession. When the defendant fails in proving his title to the suit land the plaintiff can succeed in securing a decree for possession on the basis of his prior possession against the defendant who has dispossessed him. Such a suit will be founded on the averment of previous possession of the plaintiff and dispossession by the defendant.
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 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, ::: Downloaded on - 19/05/2017 23:59:40 :::HCHP 11 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. Illustratively, we may refer to Munshi Ram and Ors. Vs. Delhi Administration (1968) 2 SCR 455, Puran Singh and Ors. Vs. The State of Punjab (1975) 4 SCC 518 and Ram Rattan and Ors. Vs. State of Uttar Pradesh (1977) 1 SCC 188. The authorities need not be multiplied. In Munshi Ram & Ors.'s case (supra), it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and re- instate himself provided he does not use more force than is necessary.
Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh and Ors.'s case (supra), the Court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. The 'settled possession' must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase 'settled possession' ::: Downloaded on - 19/05/2017 23:59:40 :::HCHP 12 does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The court laid down the following tests which may be .
adopted as a working rule for determining the attributes of 'settled possession'(SCC p.527, para 12):
i) that the trespasser must be in actual physical possession of the 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 by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided r on the facts and circumstances of each case;
iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and
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.
10. In the cases of Munshi Ram and Ors.(supra) and Puran Singh and Ors. (supra), the Court has approved the statement of law made in Horam Vs. Rex AIR 1949 Allahabad 564, wherein a distinction was drawn between the trespasser in the process of acquiring possession and the trespasser who had already accomplished or completed his possession wherein the true owner may be treated to have acquiesced in; while the former can be obstructed and turned out by the true owner even by using reasonable force, the latter, may be dispossessed by the true ::: Downloaded on - 19/05/2017 23:59:40 :::HCHP 13 owner only by having recourse to the due process of law for re- acquiring possession over his property."
11. In view of the aforesaid exposition of law, the judgment .
and decree passed by the learned First Appellate Court that plaintiff was not entitled to injunction cannot be countenanced and accordingly set aside. However, since the lower Appellate Court has not dealt with the question, as to which of the parties, in fact, is in actual possession of the suit land, the matter is required to be remanded to the said Court for determining the question of possession and thereafter r deciding the question of injunction. Ordered accordingly.
12. In consequenti, the appeal is allowed and the judgment and decree passed by the learned Appellate Court is set aside, leaving the parties to bear their own costs. The parties through their counsel to appear before the First Appellate Court on 12.06.2017.
(Tarlok Singh Chauhan ), Judge.
May 16, 2017 sanjeev ::: Downloaded on - 19/05/2017 23:59:40 :::HCHP