SOHAN SINGH AND ANOTHER Vs. JHAMAN

JUDGEMENT

(1.) THIS second appeal was heard by me earlier sitting singly when it was urged on behalf of the Defendants Appellants that the Plaintiff was not entitled to the relief of the permanent injunction when it has been found by the Courts below that his possession was that of a trespasser and that too over a part of the suit property whilst they were the owners thereof. It was also contended that once it is found that they were the owners of the suit property and the Plaintiff was a trespasser thereon no relief of permanent injunction could be granted to the Plaintiff Since I found the question involved to be of importance and likely to arise in many cases, I referred the case to a larger Bench to determine as to whether the Plaintiff is entitled to the relief of permanent injunction or not in view of the provisions of Section 37 read with Section 33 of the Specific Relief Act (hereinafter called the Act) when it is found by the Court that his possession over the suit property it that of a trespasser and the Defendant is held to be the owner thereof. It is under these circumstances that this case has come up for final hearing before us.

(2.) THE brief facts are that the Plaintiff Respondent Jhaman, (now deceased) filed the suit for the grant of the declaration and the permanent injunction restraining the Defendant from interfering with his possession on the allegations that he was in possession of the nauhra which belonged to him; he constructed the same more than 30 years ago and had been in its peaceful possession since then; over a part of the land, in dispute, sugarcane crops were being cultivated for the last more than 30 years and the Defendants had never been in possession thereof and that in the Jamabandi containing khasra No. 121 the defenders had wrongly got their names entered as owners thereof though they had no right or title therein. A plea was also taken that be had become the owner of the property, in question, by adverse possession Since the Defendants wanted to take forcible possession thereof; hence the present suit for a declaration to the effect that be was in possession of the nauhra, with consequential relief of the permanent injunction restraining the Defendants from interfering with his possession. The Defendants contested the suit inter alia on the ground that the property, in dispute, formed part of khasra No. 121 measuring 1 kanal 16 marlas and that they were the owners in possession of the same The trial Court found that the Plaintiff was not the owner of the suit property, as alleged. He was only in possession of a part thereof. It was also found that the Defendants were the owners of the suit property. In view of these findings, his suit was dismissed In appeal, filed on his behalf, the only question debated was whether he was entitled to retain possession of portion of the property, in dispute, even though the Defendants may be the owners thereof It was argued on behalf of the Defendants that the Plaintiff being a trespasser was not entitled to the relief of injunction as held by the trial Court. However, the learned Senior Subordinate Judge with enhanced appellate powers, relying upon the Supreme Court decision in Mohan Lal v. The State of Punjab 1 decreed the Plaintiffs suit qua the relief of injunction on the ground that he had been proved to be in possession of a part of the property and, therefore, the Defendants could not interfere with his possession thereon except in due course of law Dissatisfied with the same, the Defendants have filed this second appeal in this Court. During the course of the arguments before us, it was not disputed by the learned Counsel for the parties that no person is entitled to take law in his own hands and a person in unauthorised possession of the property can be dispossessed only in accordance with law and that, to the same effect is the law laid down in Mohan Lal's case (supra), wherein it was observed, -

(3.) THAT Sub -section provides that a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the Defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act which would be contrary to the rights of the Plaintiff, ( emphasis supplied). Subject to the aforesaid provision, Sub -section (3) to Section 38 inter alia further provides that a perpetual injunction may be granted to the Plaintiff when the Defendant invades or threatens to invade the Plaintiff's right to, or enjoyment of, the property. Thus, from a reading of the above -said provisions, it is evident that a perpetual injunction can be granted by a decree whereby the Defendant is perpetually restrained from the assertion of a right or from the commission of an act which would be contrary to the rights of the Plaintiff In other words, there must be some overt act on the part of the Defendant to invade or a threat to invade the Plaintiff's right or commission of an act on the part of the Defendant which is contrary to the Plaintiff's rights Except insofar as the above contingencies, no perpetual injunction could be granted against the Defendant under the Act. Such a decree is in the nature of a preventive relief which is granted at the discretion of the Court by injunction -temporary or permanent as contemplated under Section 36 of the Act. That judicial discretion the Court has to exercise only when the Plaintiff builds a good prima facie case and the merits of the case so suggest as otherwise an effective remedy is provided to meet such situations under Section 6 of the Act which provides that if any person is dispossessed, without his consent, of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit filed within six months from the date of the dispossession. Therefore, it was not disputed that a person who is in possession of the immovable property when dispossessed therefrom without his consent otherwise than in due course of law would be entitled to the relief of possession thereof summarily Thus, relief under Section 36 of the Act, which is of a preventive nature, can in a suitable case be withheld where under section 6, the Plaintiff can get back the possession as a matter of right if he is dispossessed forcibly.