Sukhwant Singh v. Divisional Forest Officer And Another

Rakesh Kumar Garg, J.:— This judgment shall dispose of 12 regular second appeals i.e RSA Nos. 3800 of 2004, 3432 of 2004, 3673 of 2004, 3674 of 2004, 3801 of 2004, 4230 of 2004 (hereinafter called 1st set of appeals), 2035 of 2005, 2036 of 2005, 2037 of 2005, 2038 of 2005, 2039 of 2005 and 2040 of 2005 (hereinafter called 2nd set of appeals), as a common substantial question of law on identical facts arises in all these appeals.

2. In both set of appeals, the cases of the plaintiffs before the trial Court was that though provincial Government was the owner of the property in dispute. However, they made it cultivable after 20 years of hard work and spending huge amount and since then they were in actual and physical cultivating possession thereof and therefore they were entitled to protect their possession over the suit land and they could be dispossessed only in accordance with law.

3. The aforesaid suits were contested by the defendants by filing written statement raising various preliminary objections. On merits, it was submitted that the provincial Government was the owner of the suit property which was declared as reserved forest by the Punjab Government vide notification dated 21.11.1973 It was further submitted by the defendants that the aforesaid land was never leased/allotted or granted to the plaintiffs and as per revenue record, they were in unauthorized possession and thus, no injunction can be issued against the defendants who were the true owners of the property. The trial Court decreed the suits Filed by the plaintiffs restraining the defendants from interfering in the possession of the plaintiffs over their respective suit lands illegally and forcibly otherwise than in due course of law.

4. Feeling aggrieved therefrom, the defendants filed appeals before the Lower Appellate Court in all the cases. In the 1st set of appeals, vide impugned judgment and decree, the Lower Appellate Court set aside the judgment and decree of the trial Court and dismissed the suits, whereas in the 2nd set of appeals, the trial Court judgment and decree was affirmed by the Lower Appellate Court.

5. Still not satisfied, the plaintiffs of the 1st set of appeals filed the present appeals challenging the judgment and decree of the Lower Appellate Court on the ground that possession of the appellant had been for more than 20 years and thus they had a right to protect their possession and they could be dispossessed only in accordance with law. In support of his argument, learned counsel for the plaintiffs relied upon a judgment of the Hon'ble Supreme Court in the case of Rame Gowda (D) LRs v. Mr. Varadappa Naidu (D) by LRs., 2004 (1) RCR (Civil) 519.

6. On the other hand, in the 2nd set of appeals filed by the defendants, learned Additional Advocate General, Punjab vehemently argued that it is equally settled law that injunction cannot be issued against the true owner. Therefore, the plaintiffs were not entitled to the relief of declaration and injunction in their favour as they had no interest in the property. It was further argued that even assuming that the plaintiffs were in possession but their possession was wholly unlawful being trespassers and as such, injunction could not be issued in favour of a trespasser or a person who gained unlawful possession as against the true owner. In support of his case, learned counsel for the defendants relied upon Premji Ratansey Shah v. Union of India, 1995 (3) RRR 11 : (1994) 5 SCC 547, Sopan Sukhdeo Sable v. Assistant Charity Commissioner, 2006 (1) RCR (Rent) 138 : (2004) 3 SCC 137, Prataprai N. Kothari v. John Braganza, 1999 (3) RCR (Civil) 119 : 1999 (1) RCR (Rent) 588 : (1999) 4 SCC 403, Mahadeo Savlaram Shelke v. Pune Municipal corporation, 1995 (2) RRR 65 : (1995) 3 SCC 33, Tamil Nadu Housing Board v. A. Viswam (Dead) By Lrs., 1996 (2) RRR 353 : (1996) 8 SCC 259, Shiv Kumar Chadha v. Municipal Corporation of Delhi, 1993 (3) RRR 236 : (1993) 3 SCC 161.

On the basis of the aforesaid arguments of the learned counsel for the parties, the following substantial question of law arises in these appeals:

“Whether the plaintiffs who are trespassers are entitled to the injunction against the defendants who are the true owners?”

7. I have heard learned counsel for the parties.

8. Facts are not in dispute. Undisputedly, the defendants are the owners of the suit property and there is no dispute with regard to title of the property in them and the learned counsel for the plaintiffs has argued that the plaintiffs are entitled to protect their possession on the basis of their long settled possession and they can only be dispossessed in due course of law whereas the specific stand taken by the counsel for the defendants is that no injunction can be gran'ted in favour of a trespasser and against the true owner.

9. If we trace the history of judicial pronouncements relating to the law of injunction which started developing with the judgment in the case of Midnapur Zamindary Co. Ltd. v. Kumar Naresh Narayan Roy, 1924 Privy Council 144 wherein it was summed up that in India, persons have not been permitted to take forcible possession and they must obtain such possession if they are entitled to through the Court. The thought has prevailed incessantly till date, the last and latest being Rame Gowda(D) LRs's case (supra). In between to quote a few out of several in Lallu Yeshwant Singh (dead) by his legal representative v. Rao Jagdish Singh, (1968) 2 SCR 203, the Hon'ble Apex Court held that a landlord did commit trespass when he forcibly entered his own land in the possession of a tenant whose tenancy had expired. In Nair Service Society Ltd. v. K.C Alexander, (1968) 3 SCR 163, the Hon'ble Apex Court held that a person in possession of a 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 and when the facts disclose no title in either party, possession alone decides.

10. In M.C Chockalingam v. Manickavasagam, (1974) 1 SCC 48, the Hon'ble Supreme Court of India held that the law forbids forcible dispossession even with the best of title.

11. In Krishan Ram Mahale (dead) by his LRs. v. Mrs. Shba Venkat Rao, 1990 (1) RCR (Rent) 525 : (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 this case the plaintiff had filed a suit for recovery of possession of premises under Section 6 of Specific Relief Act upon which she had entered as a licensee to conduct the business of restaurant and she was subsequently dispossessed by the licensor unlawfully and in those circumstances, the Hon'ble Supreme Court held that she was entitled to decree for recovery of possession since she was unlawfully dispossessed.

12. In Nagar Palika, Nagar Palika, Jind v. Jagat Singh, Advocate., Advocate, 1995 (2) RRR 444 : (1995) 3 SCC 426, the Honble Supreme 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 a 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.

13. Similarly, in Ramesh Chand Ardawariya v. Anil Panjwani, 2003 (2) RCR (Civil) 828 (SC), the Hon'ble Supreme Court approved the aforesaid settled proposition of law.

14. However, it must be mentioned at this stage that in all these judgments as discussed above, the question whether any injunction can be granted in favour of a trespasser against a true owner was not raised rather in each case either there was a dispute with regard to title of the defendant or there was a dispute between the parties with regard to demarcation of the properly i.e the defendants were not having a clear and valid legal title.

15. On the other hand, again there is a long line of judgments of the Hon'ble Supreme Court wherein it has been held that injunction would not be issued against the true owner.

16. In Premji Ratansey Shah case (supra) while discussing Sections 41(j), 38 and 39 of the Specific Relief Act, 1963, it was held as under:

“Issuance of an order of 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.

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 had no interest in the property. Even assuming that they had any possession, their possession was 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.”

17. In Mahadeo Savlaram Shelke case (supra), the Hon'ble Supreme Court of India held that no injunction can be granted against a true owner atthe instance of a person in unlawful possession.

18. Similarly in Tamil Nadu Housing Board's case (supra), it was held that a trespasser cannot claim injunction against a true owner nor can the Court issue the same.

19. In Prataprai N. Kothari's case (supra) the Hon'ble Supreme Court held as under:

“The respondent was the plaintiff in a suit for permanent injunction restraining the appellant-defendant from interfering with or disturbing his possession and occupation of the suit property. The case of the plaintiff was entirely based on exclusive and continuous possession for several decades, not on any claim to title. The original of his possession was not clear. In his written statement the defendant denied the claim of the plaintiff but did not make a specific plea that he himself had title to the property and that the suit was not maintainable at the instance of the plaintiff. There was only an incidental reference to the effect that the defendant had become the owner of the property as a result of the dissolution of a partnership with the alleged previous owner.”

20. The Hon'ble Supreme Court further held:

“We have already extracted the summary of conclusions arrived at by the learned Single Judge of the High Court. That shows that his conclusions were vitiated by his view that the appellant had title and possession followed title. It is quite obvious that the learned Single Judge had not taken note of the principle of possessory title or the principle of law that a person who has been in continuous possession can protect the same by seeking an injunction against any person in the world other than the true owner. It is also well-settled that even the owner of the property can get back his possession only by resorting to the due process of law.”

21. Similarly in Sopan Sukhdeo Sable case (supra), the Hon'ble Supreme Court discussed the issue and while holding that a person without title but in settled possession as against the mere fugitive possession can get back possession if forcibly dispossessed or rather if dispossessed otherwise than by due process of law under Section 6 of the Specific Relief Act, 1963 but further while discussing the question whether a trespasser can seek injunction against a true owner, the Hon'ble Supreme Court held that the question does not entirely depends upon Section 6 of the Specific Relief Act but mainly depends upon certain general principle applicable to law of injunction and as to the scope of exercise of discretion by granting injunction. While approving Mahadeo Savlaram Shelke case (supra), it held that a trespasser cannot seek injunction against a true owner.

22. In Shiv Kumar Chadha's case (supra), the Hon'ble Supreme Court held that judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court.

23. In Gram Panchayat, Mundliyan, Tehsil Tohana v. Bawria, 1996 (3) RCR (Civil) 349, this Court after relying upon Premji Ratansey Shah case (supra) held that no injunction can be issued against the true owner on a suit filed by a trespasser.

24. Similarly, in Gurcharan Singh v. District/Chief Agricultural Officer, Jalandhar, 1997 (1) RCR (Civil) 1, this Court after relying upon Premji Ratansey Shah case (supra) held that if a person has no interest or right in the property or possession which is lawful giving him a possessory right recognizable in law, it will be difficult for a Court normally to grant such discretionary relief of injunction in favour of such a person.

25. In Guardian Angel Eng. Medium High School v. St. George Yacobaya Syrian Church, 2000 (4) RCR (Civil) 65, the Kerala High Court after relying upon Premji Ratansey Shah case (supra) held that injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession as against the true owner.

26. Similarly in Om Parkash… v. State Of Haryana…, 1998 (3) RCR (Civil) 311, this Court after relying upon Premji Ratansey Shah case (supra) held that an injunction cannot be issued in favour of a trespasser or a person who has no interest in the property and gains unlawful possession as against the owner.

27. Thus, from the above quoted judgments, it is clearly made out that it is the consistent view of the Hon'ble Supreme Court that a trespasser cannot seek injunction against the true owner though he may have a right to protect his possession against the whole world except against true owner.

28. In Rame Gowda (D) LRs's case (supra), the plaintiff filed a suit alleging his title as also his possession over the disputed piece of land. The trial Court found the plaintiff as having failed in proving his title. Nevertheless he was 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. On the appeal of the defendant, the Hon'ble Supreme Court held that the trial Court and the High Court have rightly decided the suit as it was still open to the defendant-appellant to file a suit based on his title against the plaintiff and evict the latter and the former establishing his better right to possess the property. Thus, in Rame Gowda(D) LRs's case (supra), the title of the parties was in dispute and the Hon'ble Apex Court reiterated its earlier view observing as under:

“In Fakirbhai Bhagwandas v. Maganlal Haribhai, AIR 1951 Bombay 380, a Division Bench spoke through Bhagwati, J.(as his Lordship then was) and held that it is not necessary for the person claiming injunction to prove his title to the suit land. 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. We respectfully agree with the view so taken. The High Court has kept the question of title open. Each of the two contending parties would be at liberty to plead all relevant facts directed towards establishing their titles, as respectively claimed, and proving the same in duly constituted legal proceedings. By way of abundant caution, we clarify that the impugned judgment shall not be taken to have decided the question of title to the suit property for or against any of the contending parties.

29. From the above discussion, it is also clear that there is no conflict with regard to ratio of law as settled in Rame Gowda(D) LRs's case (supra) and the other judgments supporting the view taken in aforesaid case and the view taken in Premji Ratansey Shah case (supra) and other judgments supporting the same view.

30. In the cases in hand, there is no dispute with regard to the title of the defendants in the suit property. Therefore, in view of the above discussion only one conclusion can be drawn that an injunction cannot be granted in favour of the plaintiffs who are trespassers and against the defendants who are the true owners of the suit land.

31. Thus, the substantial question of law as raised by the plaintiffs in these appeals is answered against them holding that no injunction can be issued in favour of a trespasser and against the true owner.

32. Consequently, 1st set of appeals (RSA Nos. 3800 of 2004, 3432 of 2004, 3673 of 2004, 3674 of 2004, 3801 of 2004, 4230 of 2004) are dismissed and 2nd set of appeals (2035 of 2005, 2036 of 2005, 2037 of 2005, 2038 of 2005, 2039 of 2005 and 2040 of 2005) are allowed and the suits filed by the plaintiffs are ordered to be dismissed.

33. No order as to costs.

Order accordingly.