KANHIYA Vs. GRAM PANCHAYAT

JUDGEMENT

(1.) This petition under Sec. 115, Code of Civil Procedure, is directed against an order of the Additional District Judge, Kurukshetra whereby he upset the order of the trial Sub -Judge granting temporary injunction in favour of the Petitioner restraining the Respondent from dispossessing him except in due course of law. For granting this temporary injunction, the trial Court recorded a firm finding with regard to the actual physical possession of the Petitioner over the suit land since 1977, that is, about more than 1 year prior to the filing of the suit on the basis of the affidavit including that of the Patwari Halqa and also after looking into the entries of the Khasra Girdawari Register maintained by the Patwari. The appellate Court while considering this aspect of the matter did not upset this finding of the trial Court that the Plaintiff was not in physical possession of the suit land and rather held that the Plaintiff was there on a major portion of the suit land only as a trespasser since 1978. Be that as it may the fact remains that the Plaintiff is in possession of the suit land in whatever capacity. On the basis of the above noted conclusion, the appellate Court further held that no temporary injunction can be granted in favour of a trespasser as against a true owner. For this proposition, the learned Additional District Judge relied on a judgment of the Supreme Court reported as M. Kallappa Setty v/s. Lakhminarayana Rao : AIR 1972 SC 2299 and rather distinguished an earlier judgment of their Lordships in Mohan Lal and Ors. v/s. The State of Punjab and Ors., 1971 PLJ 338, wherein it had been held that even a trespasser can be evicted only in the manner authorised by law. According to the Additional District Judge the ratio of this latter judgment can only be applied while deciding a writ matter and not a civil suit. I do not find any basis for this distinction resorted to by the Additional District Judge. In fact in M. Kallenppa Setty's case (supra) even their Lordships in the concluding paragraph of the judgment allowed permanent injunction to the Plaintiff restraining the Defendant in that case from dispossessing the Plaintiff forcibly from the suit land. If such a relief can be granted to the Petitioner even if he is held to be a trespasser on the suit land at the time of the final disposal of the suit, why can 't this relief be granted to him on temporary basis as an ad interim measure? The non -granting of the temporary injunction would only indicate a licence to the true owner to resort to force or unlawful means to disposes a person from a property of which the Defendant or the alleged true owner claims himself to be the owner.

(2.) Mr. Sarin, learned Counsel for the Respondent, however, raises a preliminary objection that this petition under Sec. 115, Code of Civil Procedure, is not maintainable in view of the pronouncement of their Lordships of the Supreme Court in The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar Hyderabad and Anr. v/s. Ajit Prasad Tarway Manager (Purchase and Stores) Hindustan Aeronautics Ltd. Balanagar Hyderabad : AIR 1973 SC 76. I have no dispute and rather can have none with what has been laid down in this judgment. But as in the case in hand I am not upsetting any finding of fact and am rather relying on what the Additional District Judge has said with egad to the factum of possession of the parties over the suit land, I find that the order under revision is wholly unsustainable and is in disregard of the well known principles laid down for the granting of temporary injunctions. To this extent the order can even be styled as illegal.

(3.) Then the learned Counsel makes a reference to a judgment of a learned Single Judge of this Court in Sham Signh v/s. Prem Chand and Ors., 1979 PLR 537, wherein the learned judge went to the extent of observing that since permanent injunction cannot be granted to a trespasser against a true owner on parity of reasoning, no temporary injunction can even be granted in favour of such a trespasser or Plaintiff. Firstly I find that the learned Judge himself doubted the actual possession of the Plaintiff on the suit land and secondly in view of the Supreme Court judgment in M. Kallappa Setty's case (supra) where their Lordships have even granted a temporary injunction in favour of a person who was found to be a trespasser restraining the alleged true owner from forcibly dispossessing him, then why cannot such a relief be granted in the case in hand?