(High Court of Punjab and Haryana)| 15-01-2002
In this case, contention of the petitioner was that suit land was allotted by the Sate Government to the Bhakhra Oustees. Members of Pursharthi Committee, Ahli Sadar who were in possession of the land gave possession to the plaintiff and others about 30 years ago. Since then, he has been in possession. If a person in settled/peaceful possession is to be dispossessed, recourse to law has to be had and no body can be allowed to take law in his own hands, be it State or any other person. It was submitted that at no cost defendants could displace the settled possession of the plaintiff without recourse to law.
On this court observed that balance of convenience is also in favour of the plaintiff. Plaintiff is in possession. If he remains in possession for some time more on the strength of the grant of injunction, heavens are not going to fail. Plaintiff will suffer irreparable loss, if he is thrown out of possession now inasmuch as he will be on the road. Further court concluded by granting temporary injunction in favour of the plaintiff-petitioners restraining the defendants from disposing them from the houses, they have constructed and further from demolishing the construction raised by them.
Relevant Para is as follows:-
“14. In Walter Louis Franklin (dead) through LRs. v. George Singh (Dead) through Lrs. 1997(2) R.C.R. 41 it was held by the Honble Supreme Court that a person in possession of immovable property is entitled to injunction even against the true owner. The true owner is entitled to seek possession only by dispossessing such person in accordance with law by filing a suit for possession.
18. In 200(3) R.C.R. 410 (supra), Defendants resisted the prayer of the plaintiff urging that one Sunder Lal son of Karta Mal had donated portion ABCD show in the site plan Annexure-A to Arya Smaja Mandir/School by way of registered Hibanama dated 12.5.1930. At present, Krishn Lal legal heir of Sunder Lal donated the suit land, which is a piece of land marked as AEFG in the site plan in Annexure A to the Arya Samaj Mandir/SchooI. Pursuant to Hibanama dated 21.8.1997, Arya Samaj Mandir/School (Defendant No. 4) came in possession of land shown by letters AEFG. Earlier with the consent of the legal representative of Sudner Lal, Arya Samaj Mandir/School had constructed a toilet which is shown as Mark-L in the portion of the land. With the laying of pacca toilets for school children through wall A-C of the School was closed. Petitioner-respondent was claiming injunction without any semblance of right or title to the property. Should injunction be granted to him even if he is exercising certain rights on the property, which fall short of the attributes of possession but which are mere acts of user. It was in this view that temporary injunction was refused to Jiya Lal by the appellate Court. Temporary injunction was refused to Jiya Lal in revision by this Court.
22. It was submitted that the plot in question could not be transferred to the plaintiff without the consent in writing of the Commissioner, or of such officer as he may by written order empower in this behalf. It was submitted that a person who has obtained possession in violation of Section 19 could be ejected under the orders of the Collector. It was submitted that Civil Court has no jurisdiction as regards matter arising under this Act.
23. At this state in my opinion, the Court is to see whether plaintiff is in possession. If the alienation in favour of the plaintiff from the original allottee(s) is in violation of Section 19 of the said Act, that will be a different matter. In that case, his title may be affected. He can remain in possession but with the rider to be thrown out only in due course of law.
24. Plaintiff has a prima facie case. Prima facie case means that he has a case which is not liable to be thrown at the out-set but which requires to be given consideration. Prima facie case does not mean that the plaintiff should have a cent percent case which will in all probability succeed at the trial, prima facie case means that the contentions which the plaintiff is raising merit consideration and are not liable to be rejected summarily. Balance of convenience is also in favour of the plaintiff. Plaintiff is in possession. If he remains in possession for some time more on the strength of the grant of injunction, heavens are not going to fail. Plaintiff will suffer irreparable loss, if he is thrown out of possession now inasmuch as he will be on the road.”
(High Court of Punjab and Haryana) |17-04-2018
In this case, court granted permanent injunction and observed that plaintiffs have been able to prove the possession of the suit property since long, for, it has been noticed by the Courts below that as per the order dated 22.04.1968, possession of few persons namely Abha, Chandan, Tara, Dhanna, Kanshi, Deepa, Gyani and Hukmi was found to be authorized and possession of remaining persons was found to be un-authorized and they were found to be possession of shamlat deh. The proceedings are of 1968. Even if the possession of the appellant-plaintiffs is found to be unauthorized possession, they cannot be ejected except in due course of law. A person, who is not even a tenant but has been found and proved to be in long and settled possession, cannot be dispossessed forcibly and illegally except in due course of law
Relevant Para is as follows:-
“14. Vis-a-vis, relief of permanent injunction, I am of the view that plaintiffs have been able to prove the possession of the suit property since long, for, it has been noticed by the Courts below that as per the order dated 22.04.1968, possession of few persons namely Abha, Chandan, Tara, Dhanna, Kanshi, Deepa, Gyani and Hukmi was found to be authorized and possession of remaining persons was found to be un-authorized and they were found to be possession of shamlat deh. The proceedings are of 1968. Even if the possession of the appellant-plaintiffs is found to be unauthorized possession, they cannot be ejected except in due course of law. A person, who is not even a tenant but has been found and proved to be in long and settled possession, cannot be dispossessed forcibly and illegally except in due course of law. This view of mine is supported by the ratio decidendi culled out by the Honble Supreme Court in the Rame Gowda s case (supra). For the sake of brevity, paragraphs 8 and 12 of the said judgment are extracted herein below:-
“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, 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 he cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.
12. The learned counsel for the appellant relied on the Division Bench decision in Sri Dasnam Naga Sanyasi and Anr. v. Allahabad Development Authority, Allahabad and Anr. AIR 1995 Allahabad 418 and a Single Judge decision in Kallappa Rama Londa v. Shivappa Nagappa Aparaj and Ors. AIR 1995 Karnataka 238 to submit that in the absence of declaration of title having been sought for, the suit filed by the plaintiff-respondent was not maintainable, and should have been dismissed solely on this ground. We cannot agree. Sri Dasnam Naga Sanyasi and Anr.s case relates to the stage of grant of temporary injunction wherein, in the facts and circumstances of that case, the Division Bench of the High Court upheld the decision of the court below declining the discretionary relief of ad-interim injunction to the plaintiff on the ground that failure to claim declaration of title in the facts of that case spoke against the conduct of the plaintiff and was considered to be unusual. In Kallappa Rama Londas case, the learned Single Judge has upheld the maintainability of a suit merely seeking injunction, without declaration of title, and on dealing with several decided cases the learned Judge has agreed with the proposition that 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 plaintiffs 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. That is the correct position of law. In Fakirbhai Bhagwandas and Anr. v. Maganlal Haribhai and Anr. 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.”
15. The plaintiffs have expressed the threat at the hands of Gram Panchayat for forcible dispossession. The earlier ejectment proceedings were against 31 persons and not against the persons as referred to by the trial Court. The written statement did not deny the fact that no proceedings were initiated against the forefather of plaintiffs under Section 7 of Act. This aspect has totally been not taken care of by the Courts below, thus, there is illegality and perversity in the findings.”