PARAS RAM Vs. SUKHDEO PRASAD

JUDGEMENT

(1.) This is a plaintiff's second appeal in a suit for the injunction which he failed to obtain from both the Courts below. The cause of the plaintiff, in essence, was that the land in suit belonged to him and that he had, by way of abundant caution, got it settled by the Gaon Sabha in his favour. The land was in his possession and upon it were located some pegs for tying cattle and a trough for feeding them which belonged to him. The defence, in the main, was that the disputed land was the property of the defendants who were in possession thereof Sometimes, according to the defendants, the plaintiff forcibly used to occupy the land temporarily. The relief which the appdlants sought was to the effect that by means of an injunc tion, the defendants may be restrained from interfering with the plaintiff's possession over the suit land. The trial Court framed the necessary issues arising from the pleadings of the parties. The first issue was as to whether the plaintiff was the owner of land in dispute. The second issue related to the question as to whether the plaintiff was in possession over the disputed land. The trial Court, on a consi deration of the evidence on record, concluded that the defendants were the owners of the disputed land. It concluded further on issue No. 2 that the possession of the land was with the plaintiff. In view of its rinding on the first issue the trial Court dismissed the suit. Its decree was assailed by the plaintiff in appeal. The lower appellate Court dealt with the question of the title tothe disputed land in the first instance. It took into consideration the evidence led by the par ties and concluded that the plaintiff or the Gaon Sabha was not the owner of the disputed land. Dealing next with the question of possession, it held that the plaintiff had not succeeded in establishing that he was in continuous peaceful possession of the land though he succeeded in establishing ttiat he was in occupation of the land temporarily sometimes. On these findings, it dismissed the appeal and upheld the decree of the trial Court. Sri Rajesh Ji Verma, learned counsel for the plaintiff-appellant, has strenuously contended before me that the decision of the two rourts below was vitiated, inasmuch as, without recording a finding in regard to the ownersh p of the land in dispute in accordance with law and with reference to the rele vant statutory provisions, they had refused the relief of injunction to the plain tiff to which he was entitled. He has also contended that for purpose of obtain ing the relief of injunction the extent of possession found by the lower appel late Court was enough and that on the finding that was recorded in this regard by the lower appellate Court, a decree for injunction should hive been granted to the plaintiff. He has placed reliance on some decisions of this Court in support of this submission. The relief of injunction could be sought by the plaintiff if he had succeed ed in establishing his ownership of the plot in dispute or his lawful possession over it. On the material placed on record on his behalf, however, the plain tiff failed to establish that he was the owner of the plot in question. That is the finding recorded by the lower appellate Court. He also failed to establish to the satisfaction of the Courts below that the incidents of a lawful possession had been established in the case. On these findings, it is obvious that the plaintiff could not insist upon the relief of injunction, which is of discretionary character, being interposed in his favour. The decision of a learned single Judge in the case of Chhutta and others v. Pyare and others (1975 A. L. J. 270) does not assist the appellant in view of the findings which have been recorded in the present case. In that case, the Court had found that the plaintiffs had proved that they were in lawful possession of the disputed Sehan and that the defendants had no right or title to the property. In the present case, the finding recorded by the lower appellate Court falls short of a finding or lawful possession of the plaintiff over the disputed plot. In Khun Khun Chaube v. Mahabir Chaube and others (A. I. R. 1948 All. 261), a Full Bench of this Court observed that if a judge decided a matter without reference to a section of the Act which was applicable to that matter or decided a matter ignoring the existing law on the subject, he acted with "material irregularity and that an application in revision under Section 115 Civil Procedure Code lay against such a decision. " That decision can be of no avail to the appellant in the present case. In Chhedi Ram Tewari v. Mahangoo Tewari (1969 R. D. 101), a Division Bench of this Court broughtaout the distinc tion between the concept of "occupation" and "possession" within the meaning of Section 3 of U. P, Land Reforms (Supplementary) Act, (1952. The Bench observed that the concept of cultivatory possession implies that the claimant must have been in lawful right to be in possession of the land. The occupa tion according to the Bench, only implies bare use of the land without any right to retain it. Quite apart from the fact that the decision is directly not in point in so far as it related to the controversy involved in the present case, it may be observed that the Bench recognised that more occupation could not be said to amount to possession. The findings recorded by the lower appellate Court that in the material on record, the plaintiff appellant has not successfully established his title to the land in dispute and further that he had failed to establish his continuous lawful possession on the date of the suit, were enough to dispose of the matter. It was not necessary, after these findings, to consider the question about the title of the defendant to the land in suit as was due by the trial Court, for purpose of deciding whether relief of injunction should be granted to the plaintiff or not. In the result, the appeal fails and is dismissed but since no one has appeared to oppose it, therefore there shall ba no order as to costs. .