Allowed

Durga Dass Deceased through Lr Harvinder Singh Thakur and Others v. Jagdish

Himachal Pradesh HC2 Jun 2023RSA/466/2010

Case brief

AI extract

What is this about?

Appellant appealed against a decree granting permanent injunction in his favor. The High Court held that since the plaintiff failed to get the declaration of title, the subsequent injunction against the true owner could not be maintained.

What did the court decide?

The judgment and decree of the First Appellate Court granting permanent injunction were set aside, affirming the Trial Court dismissal of the suit.

Durga Dass Deceased through Lr Harvinder Singh… — Property and Title | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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RSA No. 466 of 2010 Reserved on: 23.05.2023 Decided on: 02.06.2023 Durga Dass …..Appellants

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Versus Jagdish & Ors. ......Respondents.

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Coram

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The Hon’ble Ms. Justice Jyotsna Rewal Dua , Judge. Whether approved for reporting?¹ Yes.

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For the appellant : Mr. Mohit Thakur, Advocate. For the respondents : Mr. N.S. Chandel, Sr. Advocate with Mr. Pranav Sharma, Advocate.

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Jyotsna Rewal Dua, J

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This appeal was admitted on 28.10.2010 on following substantial question of law:-

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“Whether the first Appellate Court has fallen in error, by granting decree of permanent prohibitory injunction against the defendant-appellant, who has been held to be the owner of the suit land?”

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2. The case:

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2(i) A civil suit was instituted by late Sh. Sawaru- the predecessor-in-interest of the present respondents against late Sh. Durga Dass predecessor-in-interest of the present appellants. In the

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civil suit following relief was claimed:-

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

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“1. Decree for declaration that the plaintiff is owner in possession of the suit land and the entries in the revenue record are wrong.

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2. Decree for permanent injunction that the defendant should not interfere in any manner in this suit land.

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3. In case the defendant take forcible possession of the suit land then decree for possession. 4. Any other relief which this Hon’ble Court deems fit by passed in favour of the plaintiff and against the defendant. ”

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2(ii) Plaintiff’s case was that he was in possession of the suit

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land since the year 1956. His possession was open, peaceful and without any interruption to the knowledge of the owner. He was in hostile possession of suit land since the year 1960. He had become owner in possession of the suit land by way of adverse possession. Plaintiff claimed himself to be a tenant over the suit land under one Sh. Naulu on payment of rent. Naulu died. Mutation of suit land was attested in the name of Dandu on the basis of Will stated to have been executed by Naulu. Dandu further sold the suit land to the defendant. Revenue entries of suit land existing in favour of the defendant were wrong and illegal. The sale deed executed by Dandu in favour of the defendant was also illegal and not binding upon the plaintiff.

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2(iii) The defendant claimed that he was owner in possession of the suit land. The suit land was sold to him for a sale consideration of Rs. 25,000/- by its lawful owner Dandu on

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23.05.1997. This transaction was duly incorporated in the revenue records. Mutation to this effect was attested on 28.10.1997. Plaintiff was neither the tenant nor the owner by way of adverse possession of the suit land. The plaintiff appeared as PW-1 and stated that he was in continuous possession of the suit land for the last about 50 years. He had raised a cowshed over the suit land in the year 1960. He had been giving 1/4th of the produce to Naulu as rent, however about 20-22 years ago, Naulu refused to accept rent from the plaintiff. Plaintiff’s application for correction of revenue entries was dismissed by the Sub Divisional Collector on 24.04.1987. The land was mutated in the name of Dandu on the basis of Naulu’s Will. Dandu further sold the land to the defendant. The plaintiff admitted that in the revenue record neither his name was reflected as owner nor in possession of the suit land. The defendant did not step into the witness box.

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2(iv) Learned Trial Court vide judgment and decree dated 21.02.2004, dismissed the civil suit. Learned Trial Court held that the plaintiff had claimed himself to be a tenant under Naulu but the tenancy was not proved on record. There was no evidence to show that the plaintiff was paying 1/4^th produce to Naulu as claimed by him. Plaintiff’s claim of possession over the suit land allegedly for past 50 years would not give it the nature of adverse possession. The plaintiff had even failed to prove his possession over the suit

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land. His own witness PW-2 stated that the defendant was in possession over the suit land. Plaintiff had not denied the execution of sale deed by Dandu in favour of the defendant. Plaintiff had not refuted defendant’s claim that he had purchased the suit land from Dandu for a sale consideration of Rs.25000/- on 23.05.1997. The only opposition of the plaintiff to the defence was that the sale of suit land by Dandu was not proper. Learned trial court came to the conclusion that in the jamabandi for the year 1994-95 (Ext.DA), Dandu was recorded as owner in possession of the suit land, Dandu being owner in possession of the suit land was competent to sell the suit land to the defendant. Plaintiff had admitted sale of suit land by Dandu to the defendant. The sale was not assailed. Accordingly, the civil suit was dismissed.

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2(v) Plaintiff filed an appeal against the decision of the learned Trial Court. Learned First Appellate Court decided plaintiff’s appeal on 23.09.2010. Learned First Appellate Court did not interfere with the factual findings returned by the learned Trial Court that Dandu was recorded as owner in possession of the suit land. That Dandu had sold the suit land to the defendant for a sale consideration of Rs.25000/- on 23.05.1997. Learned First Appellate Court also affirmed the findings of the learned Trial Court that the plaintiff had failed to prove adverse possession over the suit land. Learned Appellate Court held that the decree for declaration that the

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plaintiff had become the owner in possession of the suit land could not be granted to him. However learned Appellate Court held that the plaintiff was proved to be in physical possession of the suit land and on that basis reversed the judgment and decree passed by the learned Trial Court whereby the relief of permanent injunction was declined to him. Accordingly vide its judgment and decree dated 23.09.2010, learned Appellate Court partly decreed the suit filed by the plaintiff for the relief of permanent prohibitory injunction restraining the defendant from dispossessing the plaintiff from the suit land except under due process of law.

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The defendant in these circumstances has come up in the regular second appeal.

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3. Heard both sides. The sole substantial question of law on which this appeal was admitted and around which the learned counsel for the parties hav2009e advanced their submissions is whether the permanent injunction could have been granted against the true owner of the suit land more so when the decree sought by the plaintiff was concurrently declined to him for being declared as owner of the suit land by both the learned Courts below. My observations are as under:-

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3(i) Admittedly both the learned Courts below have not granted the decree of declaration prayed for by the plaintiff that he had become owner of the suit land. Indisputably plaintiff has not

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assailed this part of the judgment and decree of both the learned Courts below whereby the relief of declaration was declined to him.

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The question to be considered is after declining the relief of declaration of being owner of the suit land, can the plaintiff be still granted the relief of injunction against the true owner. Learned Trial Court has returned the findings that the owner of the suit land was Dandu, who had sold the suit land in favour of defendant for a sale consideration of Rs.25000/- on 23.05.1997. This finding has not been interfered by the learned First Appellate Court. The plaintiff has not assailed the judgments and decrees to this effect. Plaintiff has neither taken recourse to cross appeal or cross objections nor has he challenged the findings against him, in any form.

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3(ii) In context of the substantial question of law involved in the case, the law laid down in (2022) 12 SCC 128 (Padhiyar Prahladji Chenaji (Deceased) Vs Maniben Jagmalbhai & Ors. )

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assumes significance. The question before the Hon’ble Apex Court in the case was whether, in a case where the plaintiff has lost so far as the title is concerned and the defendant against whom the permanent injunction is sought is the true owner of the land, whether the plaintiff is entitled to a relief of permanent injunction against the true owner, more particularly, when the plaintiff has lost so far as the title is concerned and can thereafter the plaintiff be permitted to

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contend that despite the fact that the plaintiff has lost so far as the title is concerned, his possession be protected by way of injunction and that the true owner has to file a substantive suit claiming the possession.

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The Hon’ble Supreme Court held that in case 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 the defendant is held to be true and absolute owner of the property in question pursuant to the execution of sale deed 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 cloud on the title. However, once the dispute with respect to title is settled and it is held against the plaintiff, in that case, the suit by the plaintiff for permanent injunction shall not be maintainable against the true owner. It would be apt to extract relevant paragraphs of the judgment:-

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“13. Therefore, the short question, which is posed for the consideration of this Court is, whether, in a case where the plaintiff has lost so far as the title is concerned and the defendant against whom the permanent injunction is sought is the true owner of the land, whether the plaintiff is entitled to a relief of permanent injunction against the true owner, more particularly, when the plaintiff has lost so far as the title is concerned and can thereafter the plaintiff be permitted to contend that despite the fact that the plaintiff has lost so far as the title is concerned, her possession be

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protected by way of injunction and that the true owner has to file a substantive suit claiming the possession.

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17. Therefore, once the suit is held to be barred by limitation qua the declaratory relief and when the relief for permanent injunction was a consequential relief, the prayer for permanent injunction, which was a consequential relief can also be said to be barred by limitation. It is true that under normal circumstances, the relief of permanent injunction sought is a substantive relief and the period of limitation would commence from the date on which the possession is sought to be disturbed so long as the interference in possession continuous. However, in the case of a consequential relief, when the substantive relief of declaration is held to be barred by limitation, the said principle shall not be applicable.

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18. Even otherwise on merits also, the Courts below have erred in passing the decree of permanent injunction restraining the defendant No.1 from disturbing the alleged possession of the plaintiff. 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 the 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 title is settled and it is held against the 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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21.In the present case, once the defendant No.1 was held to be the true and absolute owner pursuant to the registered sale deed

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executed in his favour and the plaintiff was unsuccessful so far as the declaratory relief is concerned, thereafter, it cannot be said that there was a cloud over the title of the plaintiff and/or even the defendant. Therefore, the only relief which survived before the trial court was the consideration of relief of permanent injunction and having been unsuccessful in getting the relief of cancellation of the registered sale deed and the declaration thereof, the relief of permanent injunction could not have been granted by the trial court as well as by the first Appellate Court. This aspect of the case has been lost sight of by the High Court in the second appeal.”

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Explaining the distinction between substantive relief and

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consequential relief, the Hon’ble Apex Court held that a suit for declaration with consequential relief of injunction is not a suit for declaration simpliciter, it is a suit for declaration with a further relief. Whether the further relief claimed in a particular case as consequential upon a declaration, is adequate must always depend upon the facts and circumstances of each case. Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession & enjoyment of the property and also legally entitled to be in possession, not to dispossess him except in due process of law. It was also held that once the rights of the parties are adjudicated and defendant has been held to be true owner on the basis of registered sale deed and on payment of full sale consideration, it can be said that due process of law has been

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followed. Thereafter the plaintiff is not entitled to any permanent injunction against the true owner. Paras from the judgment relevant to the extent are as under:-

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“25. An injunction is a consequential relief and in a suit for declaration with a consequential relief of injunction, it is not a suit for declaration simpliciter, it is a suit for declaration with a further relief. Whether the further relief claimed has, in a particular case as consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to disposes him, except in due process of law.

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26.Now, so far as the submission on behalf of the plaintiff that even if the plaintiff failed to get the declaratory relief and relief for cancellation of registered sale deed and her suit for the said reliefs came to be dismissed and the plaintiff is found to be in possession and therefore, the only remedy available to the defendant No.1 would be to file a substantive suit to get back the possession is noticed only to be rejected outright. It is the contention on behalf of the plaintiff that once the plaintiff is found to be in possession, her possession cannot be disturbed except in due process of law and the defendant No.1 though may be the true owner has to file a substantive suit for recovery of possession.

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29. Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand and once the rights of the parties are adjudicated and the defendant No.1 is held to be the true owner on the basis of the registered sale deed and on payment of full sale consideration, it can be said that due process of law has been followed and thereafter the plaintiff is not entitled to any permanent injunction against the true owner.

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30. In view of the above discussion and for the reasons stated above, all the Courts below have erred in granting permanent injunction in favour of the plaintiff and against the defendant No.1, who is the true owner. After having held that the plaintiff had no title and after dismissing the suit qua the cancellation of the registered sale deed and the declaration, the plaintiff is not entitled to relief of permanent injunction against Defendant No.1 – the true owner.”

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3(iii) The ratio of above judgment is squarely applicable to the facts of instant case. Plaintiff had claimed for declaration of his being owner in possession over the suit land by putting forth his claim of adverse possession. Consequent relief of injunction was also prayed for. The judgments and decrees passed by both the learned Courts below make it crystal clear that the plaintiff had not been held entitled to the relief of declaration of ownership over the suit land. This verdict has also been accepted by him. That being the position, the relief of injunction could not have been allowed to him against the defendant. Defendant has been held to be owner of the suit land in lieu of its purchase by him from Dandu for sale consideration of Rs.25000/-. Dandu was recorded owner of the suit land. Owernship rights over the suit land were conferred over Dandu on the basis of Will executed in his favour by the original owner Nauly. Mutation was duly attested in Dandu’s favour. The ownership of Naulu over the suit property, Will executed by Naulu in favour of Dandu regarding the suit property, consequent mutation attested in

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Dandu’s favour, further sale of suit land by Dandu in defendant’s favour are not under challenge. Plaintiff has remained unsuccessful in seeking declaration of being owner in possession of the suit property. Both the learned Courts below have concurrently declined to grant this relief to the plaintiff. He has accepted the verdict. In view of legal position discussed above, the plaintiff was not entitled to consequent relief of injunction. Learned First Appellate Court erred in decreeing his suit for consequent relief of injunction against the true owner.

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4. In view of above, this appeal is allowed. The judgment and decree dated 23.09.2010 passed by the learned First Appellate Court in Civil Appeal No.200-13 of 2004 is set aside. Consequently, the judgment and decree dated 21.02.2004 passed by the learned Trial Court in Civil Suit No. 115/1 of 2003/97 is affirmed. Suit filed by the plaintiff is dismissed. Pending miscellaneous application, if any, shall also stand disposed of.

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Jyotsna Rewal Dua Judge

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02.06. 2023 (rohit)

Durga Dass Deceased through Lr Harvinder Singh Thakur and Others v. Jagdish

Case brief

What is this about?

What did the court decide?

Durga Dass Deceased through Lr Harvinder Singh Thakur and Others v. Jagdish

Case brief

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What did the court decide?

What the court decided

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