MOHD. HASHIM AJMULLAH KHAN Vs. VASIULLAH NASIBULLAH KHAN

JUDGEMENT

(1.) Rule, returnable forthwith. Heard finally.

(2.) The learned Judge, first of all not considered, as opposed by the Respondents, to appoint the Commissioner and to submit the report with regard to the possession of the property in question. After going through the reasons, as well as, the documents so filed by the parties, it is clear that the learned Judge has decided and adjudicated the issue of ownership instead of the issue of actual possession of the property. In a Suit like this, where the leave is sought to file a substantive Suit, but the main prayers are for injunction to protect the property, in my view, the relevant aspect is that the actual possession of the Suit property and not only the ownership. The person in possession of the property may not be the owner. The owner may not be in actual possession. The concept of "ownership" and the "possession" are two distinct and distinguishable on facts of the matter.

(3.) The learned Judge may take note of ownership issue but the situation like, where there are number of documents and at this prima facie stage, it is difficult to decide the actual possession, the rejection of Application of injunction or a prayer to protect the possession, in my view, is also undesirable approach to deal with the main Suit for possession of the property. The principle of grant of injunction and/or protection of possession revolved around the actual and physical possession of the property irrespective of ownership and/or title, even if any. The learned Judge however, referring to the documents, decided the issue against the Plaintiff/Appellant by deciding the aspect of ownership first and so also the issue of contradictory and inconsistent plea so raised revolving around only the Plaintiff. I am inclined to observe that those documents itself, as read and referred by the parties, are not sufficient to decide the aspect of actual possession of the property at least of the Defendants Respondents. The disputed questions based upon these documents required a detail trial or at least a material to show and/or to decide actual physical possession of the property.