SATYA PAL HANDA S/O SH. BRIJ LAL HANDA, CHANDIGARH Vs. KANTA HANDA W/O LATE SH. SURAJ PARKASH HANDA AND OTHERS

JUDGEMENT

(1.) The second appeal is sought against the dismissal of the suit by the appellate Court which had been originally decreed in his favour. The contention of the plaintiff/appellant is that the suit property had been purchased in the name of his elder brother for his benefit as well and ever since the purchase, he has been in possession of a portion of the property. It is contended by him that his brother is residing at the ground floor, while he is residing at the first floor. His grievance is that even when the family was cordial, his brother's sons were sowing seeds of discord and were forcibly trying to eject the appellant from the property held by him. If the contention of the plaintiff were to be that the property is a joint purchase and he shall not be disturbed in his continuation in possession, the proper frame of suit should have been to seek for a declaration or for a partition of the property and for an allotment of the property in his possession in equity. A bare relief of injunction cannot be maintained against a true owner in whose name the property admittedly ostensibly stands without actually conceding title in his favour. The suit framed was untenable and if the relief of injunction has been refused by the appellate Court, it was justified. Injunction is a discretionary relief and it cannot be issued against a true owner merely because he is in possession (see: Premji Ratansey v. Union of India, 1994 5 SCC 547 The precept that a person in settled possession cannot be evicted even by a owner except by due process will apply only in situation where the suit is laid on the basis of previous possession without joining issues of title. If the plaintiff, on the other hand, denies title of the ostensible owner and pleads title in himself for the whole or part of property (as done in this case by issuing a bogey of benami purchase) a relief of injunction will fail if his denial of title is unjustified.

(2.) The counsel for the appellant cites before me a judgment of the Delhi High Court in Prem Nath Wadhawan v. Inder Rai Wadhawan, 1993 105 PunLR 70, which was a case where the Court was considering an issue of adverse possession and was making out a case examining the case under benami transaction provision. It does not detract from the fundamental precept of law which I have outlined already and I do not feel constrained to make any reference to the judgment than how the case would require to be considered. I find no substantial question of law arising in this case and the appeal is dismissed at the stage of admission.