CHAND SINGH Vs. GANGADHAR

JUDGEMENT

(1.) THIS is plaintiffs appeal filed under Section 100 of the Code of Civil procedure, 1908 (for brevity, 'the Code') challenging the view taken by the learned lower Appellate Court dismissing his suit for permanent injunction. It has been concurrently found by both the Courts below that the plaintiff-appellant is in possession of the suit land since 1989 but there is variation in the view concerning the nature of possession. The findings of the trial Court have been set aside by learned lower appellate Court by holding that the plaintiff-appellant is not in possession in his capacity as a tenant. The possession of the plaintiff-appellant has been held to be unauthorised and on that basis his suit for permanent injunction has been dismissed. The view of the learned lower Appellate Court is discernible from paragraph Nos. 9 and 10 of the judgment and the same reads as under:-9, However, the point in controversy is whether the possession of the plaintiff over the suit land is in the capacity of the tenant or as an unauthorised occupant. Learned trial court in order to hold the plaintiff to be a tenant over the suit land relied upon the entry of Jamabandi and Khasra-girdawari wherein he (plaintiff) has been recorded to be in possession as tenant-at-Will, However, the column of rent is blank in jamabandi Ex. P-6 which pertains to the possession of the plaintiff. Jamabandi Ex. P-7 pertains to the year 1963-64 when tubachhapuri was in possession of the suit land as tenant on payment of some rent. After 1963 the land was admittedly acquired by the Government for the purpose of constructing a drain but later on this land was relaxed from acquisition and it was returned to the defendant Ganga Dhar on getting a refund of compensation amount from him. So, after release from acquisition the possession of the suit land was delivered to the defendant. The plaintiff, as per his own statement recorded in the year 1997, came in possession of the suit land 8/9 years back. This means the plaintiff came in possession of the suit land some-where in the year 1989. There is no agreement on the file showing that the plaintiff came in possession of the suit land as a tenant. There is no receipt about the payment of rent by the plaintiff to the defendant. The entry of Jamabandi in which the plaintiff has been recorded in possession of the suit land at tenant-at-Will in the column of cultivation is not sufficient to show has tenancy over this land. The law is well settled that when a person is in unauthorised occupation of some land, he is generally recorded as tenant at will i. e. gair marusi. The entry in column of cultivation has to be read with the column of rent so as to determine the status of a person in possession of the land. When the column of rent in Jamabandi Ex. P-6 relating to the 1983-84 is blank, the plaintiff cannot claim himself to be in possession of the suit land as a tenant simply on the basis of entry of column of cultivation or the correction of Khasragirdawari of the suit land in his favour by the revenue authority. Learned trial Court did not consider the legal consequences of the entries in the revenue record and simply relied upon the entry of gair marusi in the column of cultivation to come to a conclusion that the plaintiff was a tenant over the suit land. The entry of the column of cultivation is of no help to show the tenancy of the plaintiff over the suit land when the column of rent in Jamabandi is blank and no agreement on receipt of payment of rent have been brought on record by the plaintiff to show his tenancy over the land. 10. So, the finding of learned trial Court is maintained to the effect that the plaintiff has been coming (continuing ?) in possession of the suit land since 1989 but the finding of learned trial Court to the effect that the possession of the plaintiff over the suit land is in the capacity of a tenant is not legally sustainable and as such set aside. The result thereof is that the possession of the plaintiff over the suit land is unauthorised. A perusal of the above paras shows that before the plaintiff-appellant came in possession of the suit land, Tulchhaprui was in possession as a tenant on payment of some rent. The aforementioned factual position has been depicted in the Jamabandi. Ex. P-7 belonging to the year 1963-64. It has further been established that after 1963 the land was acquired by the State Government for construction of a drain and it was later on returned to Ganga Dhar, defendant-respondent, after recovering back the amount of compensation from him. The plaintiff-appellant had stated that he came in possession of the suit land somewhere in the year 1989 and there is nothing on record to show that his possession is in his capacity as a tenant. The entry in jamabandi showing the plaintiff-appellant as tenant-at-Will in the column of cultivation has not been found sufficient to prove the tenancy of the plaintiff-appellant over the suit land and the view of the trial Court in that regard has not been accepted by the learned lower appellate Court.

(2.) MR. G. S. Bawa, learned Counsel for the plaintiff-appellant has placed reliance on a judgment of the Supreme Court in the case of Walter leuis Franklin v. George Singh (1997)3 S. C. C and argued that even against the true owner the remedy of injunction would be available. According to the learned Counsel a person in possession of immovable property is entitled to such a relief and the law does not permit even the true owner to take the law in his hands and dispossess a person like the plaintiff-appellant.

(3.) MR. Jaswant Jain, learned Counsel for the defendant-respondent, however, has placed reliance on two judgments of the Supreme Court in the cases of Prataprai N. Kothari v. John Braganza and Sopan Sukhdev Sable and Ors. v. Assistant Charity Commissioner and Ors. and argued that it is settled law that no injunction could be granted against the true owner at the instance of a person who has been found to be in un-lawful possession.