SMT. GEETA AND ANOTHER Vs. ASHOK KUMAR

JUDGEMENT

(1.) The petitioners filed a suit for permanent injunction restraining the respondent from dispossessing them from the land in dispute on the ground that they were its owners in possession and in the alternative that they had acquired ownership rights by prescription. It was further pleaded that the defendant alleging himself to be the owner of the plot in dispute persuaded petitioner No. 1 to enter into an agreement of sale and receive Rs. 4,000/ - as earnest money and that in fact he was not the owner and the agreement had been got executed by fraud and misrepresentation. Alongwith the suit, they filed an application for ad interim injunction restraining the defendant from dispossessing them from the land in dispute The trial Court rejected that application and on appeal, its order was affirmed by the learned District Judge vide judgment dated September 2, 1981. Aggrieved thereby, the plaintiffs have come up in this revision.

(2.) The lower Appellate Court has found that the plaintiffs have no prima facie case ; that they are not owners of the plot in dispute ; that the possession was secured by them under the alleged agreement of sale and that on the repudiation of that agreement they are mere trespassers and have no right to continue in its possession On these findings the Court held that the plaintiffs can either sue for specific performance or return of the earnest money but have no right to seek any injunction, being trespassers. Reliance for this proposition was laid on a Full Bench decision of the Delhi High Court in Chandu Lal v/s. Municipal Corporation of Delhi : A.I.R. 1978 Delhi 174. So far as Chandu Lal's case (supra) is concerned that related to a licencee whose licence had been revoked and, as such, has no bearing on the present case. It is well established that the licencee is deemed to be in possession on behalf of the licensor and the legal possession continues to be that of the latter. On revocation of the licence the possession immediately reverts to the licensor and he has the right to enter thereupon without recourse to law. It was, therefore, rightly held that the licence after revocation of the licence will have no right to seek temporary or permanent injunction against a licensor restraining him from entering upon the property. But that is not true regarding a trespasser. A person who is found to be in established possession of any property, even if he may have no legal right to continue thereon, cannot be dispossessed forcibly and the true owner can recover the possession only by due process of law. This matter was authoritatively settled by the Supreme Court in Mohan Lal v/s. The State of Punjab, 1971 Rev. L.R. 390, wherein it was held that under our jurisprudence even an unauthorised occupant can be evicted only in the manner authorised by law. It is, therefore, apparent that the Courts below proceeded wholly on illegal premises to decline the prayer for ad interim injunction restraining the defendant from interfering with their possession except in due course of law and thus acted illegally in the exercise of its jurisdiction.

(3.) The Learned Counsel for the respondent, however, relying on Sham Singh v/s. Prem Chand, 1979 P.L.R. 537 and Deep Ram v/s. Nanak Chand, (1979) 81 P.L.R. 695, urged that no injunction temporary or permanent can be granted to a trespasser. There can be no doubt with this proposition and in both the decisions injunction claimed was that the defendant may be restrained from taking possession of the property in dispute during the pendency of the suit. As in both the cases it was found that the plaintiff had no right to continue in possession, injunction in absolute form was declined. In none of the two judgments any observation has been made that the trespasser is not entitled to a temporary injunction to the effect that he cannot be dispossessed except by due process of law. Both these decisions are, therefore, of no help to the respondent.