DHARAM CHAND Vs. VISHAN DAS

JUDGEMENT

(1.) This is defendant's second appeal against whom suit for the grant of the permanent injunction has been decreed by both the Courts below.

(2.) Plaintiff respondent Vishan Das filed the suit on the allegations that Jamna Bai, by virtue of the agreement dated November 16, 1964, executed in his favour and Kishan Chand, defendant, restored the property, in dispute and the share in the house to them and that they were already in possession of the suit land since long. Thus, whatsoever rights Jamna Bai had in the property were relinquished by her by virtue to the said agreement. It was further alleged that in a partition of the property between him and his brother Kishan Chand, the suit property had fallen to his share and, thus, the plaintiff was the owner in possession of the property, in dispute, by adverse possession as well. Since Jamna Bai (now deceased) got the land, in dispute, mutated in her name by mutation No. 2556 sanctioned on November 21, 1973, the same be held to be illegal and ineffective against him. On these allegations, it was prayed that the decree be passed in his favour for a declaration to the effect that he was the owner in possession of the land, in dispute, and the impugned mutation was wrong and ineffective against him. As a consequential relief, it was prayed that a decree be also passed in his favour for the grant of the perpetual injunction restraining the defendant Jamna Bai from interfering with his possession over the land, in dispute. Jamna Bai died during the pendency of the suit before filing the written statement. Her son Dharma Chand and daughter Parkash Devi, were impleaded as her legal representatives. They contested the suit on the ground that they were the owners in possession of the land, in dispute, and that the impugned mutation was rightly sanctioned in favour of Jamna Bai. They denied the alleged execution of the agreement dated November 16, 1964, by Jamna Bai and pleaded that her thumb-impression thereon might have been obtained by fraud, by the plaintiff. The trial Court held that Jamna Bai did not execute any agreement dated November 16, 1964, relinquishing her right of ownership in the land, in dispute, on the basis of the agreement or by adverse possession, he was in possession of the land, in dispute and that the impugned mutation was valid and was not liable to be set aside. On the basis of the finding that the plaintiff was in possession of the land, in dispute, a decree for the grant of the perpetual injunction was passed restraining the defendants from interfering with his possession over the land, in dispute, except in due course of law. In the appeal filed on behalf of the plaintiff, the learned Senior Subordinate Judge with enhanced appellate powers affirmed the findings of the trial Court except in regard to the validity of the mutation sanctioned on November 21, 1973. It was held in that behalf that the impugned mutation sanctioned in favour of Jamna Bai was illegal and inoperative against the plaintiff. Consequently, the decree passed by the trial Court was modified to the extent that the plaintiff was also entitled to the relief of declaration that the impugned mutation was illegal and inoperative against him. Dissatisfied with the same, the defendants have filed this second appeal in this Court.

(3.) The learned counsel for the appellants contended that having been found that the plaintiff was not the owner of the suit land, the decree for the grant of the permanent injunction could not be passed in his favour. According to the learned counsel, the suit was virtually for the grant of the declaration that the plaintiff was the owner in possession. Once the plaintiff failed to prove his ownership over the suit land, no relief could be granted to him in view of the Division Bench judgment of this Court in Sohan Singh v. Jhaman, 1986 89 PunLR 326. It was also contended that the mutation was rightly sanctioned in the presence of Jamna Bai and in any case, if the plaintiff had failed to prove himself to be the owner of the suit land, he had no right to challenge the same. On the other hand, the learned counsel for the plaintiff-respondent submitted that once it is found that the plaintiff was in possession of the suit land, he was entitled to the decree for the grant of the permanent injunction. He could not be dispossessed therefrom except in accordance with law.