Dismissed

Subhash Chander Mahendra (Deceased) through His Lrs Manish Mahendra and Ors. v. State of Hp

Himachal Pradesh HC4 Nov 2023RSA/323/2022

Case brief

AI extract

What is this about?

The High Court dismissed an appeal seeking declaration of title and injunction. Relying on Supreme Court precedents, it held revenue records do not confer title and a trespasser cannot seek injunction against a true owner. The Revenue Authorities acted within jurisdiction correcting records and ejecting encroachments.

What did the court decide?

The present appeal is dismissed; the record is remitted to lower courts; pending miscellaneous applications are disposed of.

Subhash Chander Mahendra (Deceased) through His Lrs… — Partition | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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RSA No. No. 323 of 2022 Reserved on: 11.10.2023 Date of Decision: 04^th November, 2023

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Subhash Chander Mahendra deceased through LRs.

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....Appellants

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Versus

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State of Himachal Pradesh.

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....Respondent

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Coram

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Hon’ble Mr Justice Rakesh Kainthla, Judge. Was it approved for reporting? Yes

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For the Appellants : Mr. Y.P.Sood, Advocate. For the Respondent : Mr. Navlesh Verma, Additional Advocate General & Mr. R.P. Singh and Mr.Prashant Sen, Deputy Advocates General.

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. Rakesh Kainthla,Judge

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The present appeal is directed against the judgment

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and decree dated 30.07.2022, passed by learned Additional District Judge (II), Shimla, District Shimla H.P. vide which, the appeal filed

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by the present appellant (plaintiff before the learned Trial Court) was dismissed. (Parties shall hereinafter be referred to in the

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Whether reporters of the local papers may be allowed to see the judgment? Yes

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same manner as they were arrayed before the learned Trial Court for convenience).

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Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a Civil Suit before the learned Trial Court for seeking a declaration that he is owner in possession of the suit land mentioned in para 1 of the plaint, order dated 25.07.2006 passed by the learned Financial Commissioner (Appeals) Himachal Pradesh in Revision Petition No. 163/2002, Divisional Commissioner, Shimla, in Appeal No. 64/2001 and the Settlement Officer, Shimla in case No. 58/98, dated 03.05.2000 are illegal, wrong and contrary to the provisions of H.P. Land Revenue Act. The revenue entries regarding Khasra Nos. 27, 29, 30 and 32 corrected by the Revenue Authorities based on the orders are illegal, wrong and not binding on the right, title and interest of the plaintiff. A consequential relief of permanent prohibitory injunction restraining defendant no.1 from dispossessing the plaintiff from the suit land or any part thereof was also sought.

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It was pleaded that the plaintiff is an owner in possession of the suit land. He purchased the suit land in the year

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1973-74. He built a house over Khasra No. 640/27 min and planted an orchard. Settlement operation was carried out in the areas of Mauza Shainal where the suit land is located. No person raised any dispute regarding the measurement and preparation of records of rights of the suit land during the settlement operation. Original defendant no.2 filed an application before the Settlement Officer, Shimla on 09.03.1998 asserting that the plaintiff had closed the passage leading to his (defendant No.2) land. The Settlement Officer entertained the application of defendant no.2, without jurisdiction. The matter regarding the obstruction of the passage falls within the purview of the Civil Court. The Settlement Officer called a report from the field agencies and directed the correction of the revenue entries vide order dated 03.05.2000. The order passed by the Settlement Officer was without jurisdiction and against the provisions of the statute. The nature of the classification of land bearing Khasra nos. 27, 29, 30 and 32 was also changed, contrary to the spot position. No notice was served upon the plaintiff before carrying out the correction. The Settlement Officer also ordered the ejectment of the plaintiff from the land bearing Khasra Nos.27, 29, 30 and 32 measuring 0-03-60 hectares and directed the Assistant Collector (Rural) Shimla, to

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remove the encroachment. The Settlement Officer had no jurisdiction to order the ejectment of the plaintiff as the ejectment can only be ordered by following the due procedure prescribed under the H.P. Land Revenue Act. A question of title was raised before the Settlement Officer, which was required to be referred to the Civil Court. This order was unsuccessfully assailed in appeal and revision. The defendants are trying to dispossess the plaintiff from the suit land and building owned and possessed by him. The claim of the villagers of Mauja Sanan regarding the existence of the public path through the land of the plaintiff was rejected in proceedings under Section 133 of Cr.P.C. by the learned SDM (Rural), Shimla. These orders were not considered. Hence, the suit was filed to seek the relief mentioned above.

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The suit was opposed by defendant no. 1 by filing a written statement taking preliminary objections regarding lack of maintainability, the suit being bad for non-joinder of necessary parties, the suit having not been properly valued for Court fee and jurisdiction and the suit being liable to be dismissed for want of notice under Section 80 of CPC. The contents of the plaint were denied on merits. It was asserted that Khasra Nos. 27, 29, 30 and

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32 were measured/prepared during the settlement from Khasra Nos. 28 min and 29 min. These Khasra numbers were wrongly shown to be carved out from Khasra No. 640/27 during the settlement and this error was corrected by the Settlement Officer. There is a passage from Khsara Nos. 23 and 24 leading from the main road and this passage was obstructed by the plaintiff. The Settlement Officer reviewed the matter and found that Khasra No. 27, 29, 30 and 32 were prepared from Khasra Nos. 28 and 29 min, which were in the ownership and possession of the State. The plaintiff was given a due opportunity of hearing by the Settlement Officer as well as Naib Tehsildar (Settlement) on the spot. There was no violation of the principle of natural justice. Naib Tehsildar (Settlement) inspected the spot on 22.08.1997, 23.08.1997 and 6.10.1997 in the presence of the plaintiff and Tejinder Singh. The suit land is in the ownership of the Government and the possession of the estate holders. There was no question of title. The encroachment was detected during the settlement and the plaintiff had no right to retain the encroached portion. Hence, it was prayed that the suit be dismissed.

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Defendant No.2 was not served and his name was

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deleted by the learned Trial Court, vide order dated 24.07. 2008.

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A replication denying the contents of the written statement and affirming those of the plaint was filed.

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Learned Trial Court framed the following issues on

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29.07.2010:-

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Whether the plaintiff is absolute owner in possession of the suit land as alleged? OPP.

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Whether the orders dated 25.07.2006, passed by the ld. Financial Commissioner (Appeals), H.P. in Revision petition No.163/02 is illegal, wrong and contrary to the law and principle of natural justice and is liable to be declared as such, as alleged? OPP.

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Whether the revenue entries with respect to Khasra Nos. 27, 29, 30 and 32 corrected on the basis of the orders passed by the authorities are illegal and wrong, as alleged? OPP.

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Whether the plaintiff is entitled for the decree of permanent prohibitory injunction against the defendant, as prayed for? OPP.

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Whether the suit is not maintainable, as alleged? OPD.

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Whether the suit is bad for non-joinder of necessary parties, as alleged? OPD.

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Whether the suit is not properly valued for the purpose of court fee as alleged? OPD.

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Whether the suit is liable to be dismissed for non-issuance of notice U/S 80 CPC, as alleged? OPD.

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Relief.

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The parties were called upon to produce their evidence and the plaintiff examined Suraj Bhimta (PW-1), Raj Krishan (PW-2) and Manish Mahindra (legal representative of the original plaintiff) (PW-3). No evidence was led by the defendant and the evidence was closed on 16.01.2014.

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The learned Trial Court held that the Settlement Authorities carried out the measurement and found that the area of the plaintiff had increased during the settlement. Khasra Nos. 27, 30 and 32 were wrongly recorded in the ownership of the plaintiffs. These Khasra numbers belonged to the State. The plaintiff had stated on the spot that he was ready to leave an equal amount of land over Khasra No. 41. The plaintiff was present on the spot and there was no violation of the principle of natural justice. There was no error of jurisdiction as Revenue Authorities are empowered to correct revenue entries and eject the trespasser. There is no infirmity in the orders passed by the Settlement

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Authorities. Hence, issues no. 1 to 8 were answered in negative and the suit was dismissed.

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Being aggrieved from the judgment and decree passed by the learned Trial Court, the plaintiff through his legal representatives filed an appeal, which was decided by the learned Additional District Judge (II), Shimla, H.P. The learned First Appellate Court held that a detailed inquiry was conducted and it was found that the plaintiff was wrongly recorded in possession of Khasra nos. 27, 29, 30 and 32. He was an encroacher and was rightly ordered to be evicted. There was no violation of the principle of natural justice. There was no infirmity in the judgment and decree passed by the learned Trial Court. Hence, the appeal was dismissed.

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Being aggrieved from the judgments and decrees passed by the learned Courts below, the present appeal has been filed asserting that the learned Courts below erred in dismissing the suit. The order passed by the Settlement Officer and upheld by the Appellate authorities was bad. The Settlement Collector committed grave illegality by treating the complaint of Tejinder Singh to be an application for correction of revenue entries.

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Tejinder Singh had no right, title or interest over the suit land and he did not have any dispute regarding the revenue entries. The record was rightly prepared. The Revenue Officer had no jurisdiction to decide a dispute of a civil nature. There was no encroachment and the learned Courts below failed to appreciate the fact that no encroachment was detected during the settlement operation. The area of Khasra No. 640/27 was 17 Biswa before passing the order which was reduced after the order of the Settlement officer. The ejectment could not be ordered without following the due process of law. The classification was also wrongly changed. The authorities had not followed the procedure and acted in violation of the principle of natural justice. The learned First Appellate Court erred in holding that the suit was barred under Section 11 of CPC. No such objection was ever raised by any person and the Court could not have recorded such a finding without any basis. Therefore, it was prayed that the present appeal be allowed and the judgments and decrees passed by the learned Courts below be set aside.

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The following substantial questions of law are proposed with the memorandum of appeal:-

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1. Whether the findings recorded by the Courts below to the effect that Civil Court has no jurisdiction are against the settled principles of law that Civil Court has jurisdiction to try the suit of civil nature where the orders passed by the Revenue Authorities are in violation of the principles of natural justice and the Revenue Authorities have failed to follow the procedure prescribed under the Special Statute?

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2. Whether the findings recorded by the Courts below that the suit was barred under Section 171 of the H.P. Land Revenue Act are vitiated when no proceedings for correction of revenue entries as per the provisions of H.P. Land Revenue Act, 1954 were ever instituted before the Settlement Collector as per law and the Courts below committed grave illegality in upholding the order passed by the Settlement Collector which was without jurisdiction?

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3. Whether the suit could be said to be barred by the principles of Res Judicata when admittedly no legal and valid order/decree was ever passed by any competent Court of jurisdiction with respect to the matter in controversy as involved in the suit prior to filing of suit and the findings thus recorded by the Courts below are vitiated?

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4. Whether the decree for permanent prohibitory injunction could be declined when admittedly plaintiff is in possession of the suit land and the respondents were threatening to dispossess him without following due process of law and the findings thus recorded are vitiated?

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5. Whether the findings recorded by the Coutts below that the plaintiff is not owner of the suit

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land are based on misreading, mis-appreciation, misconstruction of the pleadings and evidence brought on record?

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6. Whether the Ld. Appellate Court below has committed illegality in exercise of jurisdiction as vested in it as the Ld. Appellate Court below has failed to decide the Appeal by re-appreciating the pleadings, evidence brought on record, as per principles laid down in Section 96 of the Code of Civil Procedure and the findings thus recorded vitiated?

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I have heard Mr Y.P. Sood, learned Counsel for the

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appellants/plaintiffs and Mr Navlesh Verma, learned Additional Advocate General/defendant.

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Mr. Y.P. Sood, learned counsel for the

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appellants/plaintiffs submitted that the learned Courts below erred in dismissing the suit. It was wrongly held that the Revenue Authorities had the jurisdiction to hear and entertain the application filed by the original defendant no.2. He had made a complaint about the obstruction in the passage, which dispute is cognizable by the Civil Court. The opportunity of hearing was not afforded to the plaintiff and the order violates the principle of natural justice; therefore, he prayed that the present appeal be admitted on the proposed substantial questions of law.

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Mr. Navlesh Verma, learned Additional Advocate

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General for respondent/defendant supported the judgments and decrees passed by the learned Courts below and submitted that no interference is required with them. He prayed that the present appeal be dismissed.

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I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.

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The plaintiff filed the present suit for declaration that he is an owner in possession of the suit land as he had purchased the same in the year 1973-74.

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Manish Mahindra (PW-3) stated in his proof affidavit that the suit land was purchased by his father in the years 197374. Significantly, the Sale Deed vide which the suit land was purchased was never produced on record. This was the essential document because only the Sale Deed could have shown the extent of the land purchased by the plaintiff and in the absence of the same, there is nothing to prove the assertion of the plaintiff that he had purchased the suit land and his ownership should be declared based on the sale deed. The plaintiff relied upon the copy

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of Jamabandi for the years 1989-90 (Ext. PW-1/A), in which he is shown to be the owner to the extent of 7-8 bighas of land bearing Khasra Nos. 6, 713/23, 716/24 and 640/27 to seek a declaration of his title. This is not permissible.

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In the State of Himachal Pradesh versus Keshav Ram 1996 (11) SCC 257 , the disputed land was originally recorded in the name of Raja Sahib of Keonthal and thereafter the State was recorded to be the owner of the land. The plaintiffs filed a civil suit based on the revenue record. The Hon’ble Supreme Court held that the revenue entries in the settlement papers will not create or extinguish title and no declaration can be granted based on such an entry. It was observed: -

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“ [4] In view of the rival contentions, the question that arises for consideration is whether the plaintiffs have been able to establish their title and whether the Courts below were justified in declaring the plaintiff's title. As has been stated earlier the only piece of evidence on which the Courts below relied upon to decree the plaintiffs' suit is the alleged order made by the Assistant Settlement Officer directing correction of the record of right. The order in question is not there on record but the plaintiffs relied upon the register where the correction appears to have been given effect. The question, therefore, arises as to whether the entry in the settlement papers recording somebody's name could create or extinguish a title in favour of the person concerned? It is to be seen that the disputed land originally stood recorded in the name of Raja

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Sahib of Keonthal and thereafter the State was recorded to be the owner of the land in the record of right prepared in the year 1949-50. In the absence of the very order of the Assistant Settlement Officer directing necessary correction to be made in favour of the plaintiffs, it is not possible to visualize on what basis the aforesaid direction had been made. But at any rate, such an entry in the Revenue papers by no stretch of the imagination can form the basis for a declaration of title in favour of the plaintiffs. To our query as to whether there is any other document on the basis of which the plaintiffs can claim title over the disputed land, the learned counsel for the plaintiffs-respondents could not point out any other document apart from the alleged correction made in the register pursuant to the order of the Assistant Settlement Officer. In our considered opinion, the Courts below committed a serious error of law in declaring the plaintiff's title based on the aforesaid order of correction and the consequential entry in the Revenue papers. In the circumstances, the appeal is allowed and the judgment and decree passed in all the three forums are set aside.” (Emphasis supplied)

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20. This position was reiterated in Union of India and

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Others versus Vasavi Co-Op Housing Society Ltd and Others 2014 (2)

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SCC 269 , wherein it was held: -

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“ [17] This Court in several Judgments has held that the revenue records do not confer title. In Corporation of the City of Bangalore v. M. Papaiah and another, 1989 3 SCC 612 held that "it is firmly established that revenue records are not documents of title, and the question of interpretation of document not being a document of title is not a question of law." In Guru Amarjit Singh v. Rattan Chand and others, 1993 4 SCC 349 this Court has held that "that the entries in jamabandi are not proof of title". In State of Himachal Pradesh v. Keshav Ram and others, 1996 11 SCC 257 this Court held that "the entries in the revenue papers, by no stretch

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of imagination can form the basis for the declaration of title in favour of the plaintiff."

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A similar view was taken in Prahlad Pradhan v. Sonu

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Kumhar, (2019) 10 SCC 259 : (2020) 1 SCC (Civ) 103: 2019 SCC OnLine

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SC 1416, wherein it was observed at page 263:

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“5. The contention raised by the appellants is that since Mangal Kumhar was the recorded tenant in the suit property as per the Survey Settlement of 1964, the suit property was his self-acquired property. The said contention is legally misconceived since entries in the revenue records do not confer title to a property, nor do they have any presumptive value on the title. They only enable the person in whose favour mutation is recorded, to pay the land revenue in respect of the land in question. [ Bhimabai Mahadeo Kambekar v . Arthur Import & Export Co., (2019) 3 SCC 191 : (2019) 2 SCC (Civ) 21; Narasamma v. State of Karnataka, (2009) 5 SCC 591 : (2009) 2 SCC (Civ) 582; Balwant Singh v. Daulat Singh, (1997) 7 SCC 137; Sawarni v. Inder Kaur, (1996) 6 SCC 223 ] As a consequence, merely because Mangal Kumhar's name was recorded in the Survey Settlement of 1964 as a recorded tenant in the suit property, it would not make him the sole and exclusive owner of the suit property.

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Thus, the plaintiff cannot seek a declaration on the

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basis of the revenue record alone.

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It was submitted that the Settlement Officer erred in entertaining the application regarding the blocking of the passage because the matter was civil. This submission is not acceptable. A perusal of the order (Ext. PW-3/C) passed by the Settlement

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Collector shows that the application was filed by Tajender Singh, (defendant no.2) complaining that the plaintiff had obstructed the passage by installing the gate. The passage should be kept as it existed before the settlement. The correction should be made and the passage should be opened. It is apparent from this part of the order that Tajender Singh was aggrieved by the blockage of the passage but he had made a prayer for keeping it as it was before the settlement by correcting the revenue record. The matter regarding the correction of the revenue entries is vested with the Revenue Authorities under the H.P. Land Revenue Act. Section 171 (v) and (vi) bars the jurisdiction of the Civil Court to entertain a suit regarding the framing or correction of records of rights. Therefore, it is apparent that an exclusive jurisdiction had been conferred upon the Revenue Authorities to frame and correct the record of right, annual record or periodical record, and the submission that the Revenue Authorities did not have the jurisdiction to carry out the correction is not acceptable.

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The copy of the order (Ext.PW-3/C) shows that the file was sent to Naib Tehsildar (Settlement) for carrying out the measurement, who submitted a report. The file was again sent to

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Assistant Settlement Officer, Shimla (3^rd ), who visited the spot and submitted a report. The report of Assistant Settlement officer, Shimla (3^rd ), reads that notice was issued to both the parties for 05.06.1999. The spot was inspected in the presence of Tajender Singh and Subhash Chand. Settlement Officer noticed in his order (Ext.PW-3/C), that the file was fixed for hearing on 27.11.1999, on which date both the parties were heard. The plaintiff had stated before the Settlement Officer that he considered Khasra Nos. 27, 30 and 32 as his own because this land was shown to him during the demarcation. His land should be kept 11-15 bighas and the order of the correction should be passed. Hence, the order was passed for the correction of revenue entries.

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The report of the Assistant Settlement Officer (3^rd ), Shimla and the order passed by the Settlement Officer clearly show that the plaintiff was present and he was heard. Therefore, the learned Courts below had rightly held that there was no violation of the principle of natural justice.

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The plaintiff had preferred the appeal, which was dismissed by the learned Commissioner (Revenue) (Mark P-3) on 18.09.2002 and a revision, which was dismissed by the learned

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Financial Commissioner (Appeals) (Ext.PW3/F) on 25.07.2006. These orders were passed after hearing the plaintiff and the authorities also followed the principle of natural justice.

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The Assistant Settlement Officer stated in his report that a passage existed on earlier Khasra Nos. 1, 2, 27 and 28 which was obstructed by the plaintiff. The objection raised by the original defendant no.2 appeared to be correct. Some land was acquired by the PWD, which caused the difference in the situation before and after the settlement. Khasra Nos. 27, 30 and 32 earlier belonged to the State but were wrongly allotted to the plaintiff as part of Khasra No. 640/27. The plaintiff was also encroaching upon Khasra No. 34; therefore, it was recommended that Khasra No. 27, 30 and 32 should be shown to be part of earlier Khasra No. 28 min and 29 min. The passage should be shown on Khasra Nos. 33 and 35 and the encroachment should be removed from Khasra No. 34. These recommendations were accepted by the Settlement Officer.

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The report and the order are based on the measurement carried out on the spot. As already stated the revenue authorities have the jurisdiction to measure the land and

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carry out a correction in the revenue record. Thus, there is no infirmity in passing the order for the correction to restore the position as it existed before the settlement.

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The plaintiff is also aggrieved by his ejectment from the encroached land. It appears from the order that a copy of the order was sent to the Tehsildar, Shimla, for removing the encroachment as per the Rules. Once it was found that the plaintiff had encroached upon the government land, the revenue authorities had the jurisdiction to take action against him as per law for the removal of the encroachment. The plaintiff did not produce any Sale Deed before the Court to show that the place where the encroachment is stated was purchased by him. No expert was examined to establish this fact. Since the encroachment was found after the spot measurement, therefore, there is no infirmity in the order passed by these Revenue Authorities.

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It was submitted that the plaintiff is in settled possession of the suit land and he cannot be dispossessed except as per the law and the learned Court below erred in declining the injunction in favour of the plaintiff. This submission cannot be

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accepted. It was laid down by the Hon'ble Supreme Court in Sopan Sukhdeo Sable vs. Assistant Charity Commissioner 2004(3) SCC 137 that there is a distinction between the restoration of the possession and seeking an injunction. A person in settled possession can get the possession back if forcibly dispossessed, but he cannot seek an injunction against the true owner. It was

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observed:-

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“24. There are two different sets of principles, which have to be borne in mind regarding the 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 the property, even on the assumption that he has no right to remain in the property, he cannot be dispossessed by the owner except by recourse of law. This principle is laid down in Section 6 of the Specific Relief Act, of 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 be set up in such suit. That a person without a 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 Mohate v. Mrs Shobha Venkata Rao, 1989(4) SCC 131, at p. 136: 1990(1) RCR(Rent) 525 (SC), Ram Rattan v. State of U.P., 1977(1) SCC 188 and State of U.P. v. Maharaia Dharmender Prasad Singh, 1989(2) RCR(Civil) 31 (SC) 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 .

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Now the other aspect of the matter needs to be noticed. Assuming a trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963 can the trespasser seek an 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 Sheika v. Pune Municipal Corporation, 1995(2) RCR(Civil) 65 (SC) 1995(3) SCC 33 , it was held after referring to Woodroffee on "Law relating to an 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 an injunction against the true owner. In that context, this Court quoted Shiv Kumar Chadha v. M.C.D., 1993(3) SCC 1661: 1993(3) RCR(Civil) 236 (SC) wherein it was observed that injunction is discretionary and that:

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"Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court".

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Reference was also made to Dalpat Kumar v. Prahlad Singh, 1992(1) SCC 719: 1982(3) RCR(Civil) 457 (SC) in regard to the meaning of the words ‘prima facie case and ‘balance of convenience' and observed in Mahadeo's case (supra) that:

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"It is settled law that no injunction could be granted against the owner at the instance of a person in unlawful possession."

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The question of forcible possession as claimed is also a matter, which can be pressed into service by the parties before the trial Court and if raised the Court shall deal with it considering its relevance to the suit and accept it or otherwise reject the plea in accordance with the law. We do not think it necessary to express any opinion in that regard.”

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31. Similarly, it was held in Premji Ratansey Shah vs. Union

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of India 1994(5) SCC 547 that an injunction cannot be issued against the true owner at the instance of the person in unlawful possession. It was observed:-

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“4. ………The question, therefore, is whether an injunction can be issued against the true owner. Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, an 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. An injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have a personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.

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It is an equally settled law that an 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, against the owner. The pretext of a dispute over the identity of the land should not be an excuse to claim an injunction against the true owner.”

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32. This Court took a similar view in Smt. Urmil Gupta vs.

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Commissioner AIR 2017 (H.P) 183 and it was held:-

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It is well settled that an injunction cannot be granted against the true owner and as such first appellate Court rightly rejected relief of declaration and injunction in favour of the plaintiff, who had admittedly no interest in the property. Even if, an argument, having been made by Mr G.D. Verma, learned

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Senior Counsel appearing for the appellant-plaintiff, is accepted that the plaintiff was having possession over the suit land, her possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser who gained unlawful possession, as against the respondent-defendant. In this regard, reliance is placed upon Premji Ratansey Shah and Others v. Union of India and Others, (1994)5 SCC 547 , wherein the Hon'ble Apex Court has held as under:-

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"5. It is an equally settled law that an 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, against the owner. The pretext of a dispute of identity of the land should not be an excuse to claim an injunction against the true owner." (p.550)

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33. Similar is the judgment of the Hon’ble Supreme Court in Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai, (2022) 12 SCC

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128: 2022 SCC OnLine SC 258, wherein it was observed:-

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“18…..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 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 the title is settled and it is held against the

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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.

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Xxxxxx

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In the case of A. Subramanian Vs. R. Pannerselvam, 2021 3 SCC 675 , it is observed by this Court that a person in possession of land in the assumed character of the owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. Therefore, the plaintiff is not entitled to any injunction and/or to protect his possession against the rightful owner, more particularly, when he fails to get the declaratory relief and the dispute with respect to the title comes to an end.

¶134

Now, so far as the reliance placed upon the decision of this Court in Anathula Sudhakar [Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594 by the learned advocate appearing on behalf of the original plaintiff in support of his submission that in a suit for permanent injunction to restrain the defendant to interfere with the plaintiff's possession, the only thing the plaintiff will have to establish is that as on the date of the suit, he was in lawful possession of the suit property and the defendant has tried to interfere or disturb his possession is concerned, what is observed by this Court in para 15 is the “lawful possession” of the plaintiff. In the present case the plaintiff, who has failed to get any declaratory relief and Defendant 1 is held to be a true and absolute owner on the basis of the registered sale deed on payment of full sale consideration thereafter the plaintiff's possession cannot be said to be “lawful possession”. Therefore, the plaintiff is not entitled to any permanent injunction against the true owner in the instant case.”

¶135

¶136

Therefore, the plaintiff is not entitled to seek any injunction against the true owner after he was found to be an encroacher upon the land.

¶137

It was submitted that the learned First Appellate Court erred in holding that the suit was barred by the principle of res judicata . This submission has to be accepted as correct. The question of res judicata is a mixed question of law and fact and it is based upon the pleadings filed in the previous suit and cannot be adjudicated without pleadings.

¶138

In the present case, there were no pleadings, in the absence of which the learned First Appellate Court could not have given a finding that the suit was barred by res judicata. Further, the plaintiff is aggrieved by the fact that Revenue Authorities had no jurisdiction. The Revenue Authorities never determined this question. They only determined whether correction was to be carried out or not. Therefore, the question of res judicata will not apply to the present case. However, this will not make any difference to the outcome of the present decision.

¶139

It was submitted that the learned First Appellate Court had not given detailed findings and the judgment and decree were

¶140

¶141

bad. This submission cannot be accepted. The learned First Appellate had affirmed the judgment and decree of the learned Trial Court. It was laid down in Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179: 2001 SCC OnLine SC 375 that the First Appellate Court need not write a detailed judgment when it is affirming the findings of the court and a mere general agreement is sufficient. It was observed on page 188:

¶142

“The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, the decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary [AIR 1967 SC 1124] ). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it.” (Emphasis supplied)

¶143

In the present case, the learned First Appellate Court

¶144

had affirmed the findings of the facts recorded by the learned Trial Court and it was sufficient for the learned First Appellate

¶145

¶146

Court to express its agreement with the findings recorded by the learned Trial Court.

¶147

The plaintiff has failed to prove the violation of natural justice. The Revenue Authorities had jurisdiction to carry out the measurement and the correction. The application filed by defendant no. 2 contained a prayer for correction of revenue entries and was cognizable by the Revenue Authorities. There is no misreading of the pleadings and evidence in the present case. Hence, the proposed substantial questions of law do not arise in the present case and this appeal cannot be admitted on the proposed substantial questions of law.

¶148

Final order :

¶149

In view of the above, the present appeal fails and the same is dismissed. The record of the case be remitted back to the learned Courts below. Pending miscellaneous applications, if any, also stand disposed of.

¶150

(Rakesh Kainthla) Judge

¶151

04^th November,2023 (Ravinder)

Subhash Chander Mahendra (Deceased) through His Lrs Manish Mahendra and Ors. v. State of Hp

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Subhash Chander Mahendra (Deceased) through His Lrs Manish Mahendra and Ors. v. State of Hp

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