DHARAMVIR Vs. NARESH KUMAR

JUDGEMENT

(1.) THIS is plaintiff's petition filed under Article 227 of the Constitution with a prayer for setting aside order dated 4.11.2004 passed by the learned Additional District Judge, Kapurthala dismissing his application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908. The plaintiff-petitioner has filed a suit for permanent injunction restraining the defendant-respondents from interfering in his peaceful possession. The defendant-respondents who are his brother, brother's wife and his fathier respectively. Alongwith the suit an application for interim stay was also filed. The trial Court vide order dated 11.8.2004 had granted interim stay but the lower Appellate Court has reversed the order on the principal ground that no interim order staying dispossession of a stranger to the property could be passed against the true owner. The view of the learned Appellate Court is discernible from paragraph 8 of the order which reads as under :-

(2.) MR . Rakesh Kumar, learned counsel for the plaintiff-petitioner has argued that injunction can be granted even against true owner if possession of the plaintiff-petitioner is established by evidence. In support of his submission the learned counsel has placed reliance on two judgments of the Supreme Court in the cases of Prataprai N. Kothari v. John Braganza, 1999(3) RCR(Civil) 119 and Walter Louis Franklin (dead) through LRs. v. George Singh (dead) through LRs., 1997(2) RCR(Civil) 41. The learned counsel has further submitted that the Appellate Court cannot interfere in the order of the trial Court as the order passed by the trial Court is a discretionary order and in the absence of any specific reason for reversing the order, no such interference by the Appellate Court is warranted. In support of his submission, the learned counsel has placed reliance on two judgments of this Court in the cases of Maman Chand v. Kamla, 1996(1) RRR 230 (P&H) : (1996-2)113 PLR 147 and Man Singh v. H.S. Kohli (Harbhajan Singh Kohli), 1997(2) R.C.R.(Civil) 370 : (1997-1)115 PLR 643. He has further urged that the matter is at preliminary stage and evidence with regard to the title or the nature of the property is yet to be adduced. On the ground that the defendant-respondent 3 is the true owner, no conclusion with regard to possession could be recorded.

(3.) THE argument of the learned counsel that even against the true owner ad- interim injunction can be granted has failed to impress me because the judgments on which he has placed reliance itself show that the person who has been in possession can protect his possession by seeking injunction against any other person and not against the true owner. The aforementioned observations have been made in paragraph 11 of the judgment in Prataprai N. Kothari's case (supra) to which reference has been made by the learned counsel. Similar is the position in respect of the other judgment. The other argument that jurisdiction of the Appellate Court to interfere in order of the trial Court is limited, would also not require any serious consideration because I find that the Appellate Court has interfered in the order of the trial Court purely on a legal basis that no injunction could be granted against the true owner. The plaintiff-petitioner admittedly is not the owner of the property and the property is owned by defendant-respondent 3 his father. Therefore, there is no substance in the argument that the Appellate Court has interfered in order of the trial Court without reversing the findings of the trial Court.