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Judgment
This is plaintiff's appeal challenging the judgment and decree dated 10.10.2013 rendered in Regular Civil Appeal No. 39A/2011 whereby the judgment and decree of the trial Court passed in Civil Suit No. 38A/2011 was affirmed on the question of title however, on the issue of possession and consequential relief of permanent injunction, the same was reversed.
The facts of the case are that the appellants/plaintiffs filed a suit for declaration and permanent injunction with respect to suit property situated in survey No. 1869 (new survey No. 1773) of Village Garod admeasuring 0.024 aare. The plaintiff and the defendants No. 1 to 6 are cousins and defendant No. 7 is the wife of nephew of the plaintiff.
It was averred in the plaintiff that father of the plaintiff late Ramchandraji and late Mangilalji - father of defendants No. 1 to 6 were real brothers. Ramchandraji died in the year 1970 and Mangilalji in the year of 1978.
Late Mangilalji the father of defendants No. 1 to 6 purchased the suit property around the year 1950 from one Kudrat Khan. After purchase of the suit property the same was registered in revenue records in the name of Mangilalji in the year 1951-52 for the reason that he was the elder brother.
The said Mangilalji and his son Devilalji (defendant No. 1) along with other properties sold the suit property to the father of plaintiff Ramchandraji on 18.07.1958 by executing an agreement on stamp and since then, Ramchandraji was in possession of the said suit property. After his death, the property devolved to his wife and son (plaintiff). It was kept for sustenance of the mother of the plaintiff who had executed a will in favour of the plaintiff on 02.07.2000. As such, the plaintiff became owner and possession holder of the suit property.
It was also averred in the plaint that since the decade of 1950, the suit property is in continuous possession of plaintiff /his family. The old car of his father, some pillars for construction of chattri (Cenotaph), boundary wall of boulders, agricultural equipment, etc. are kept on the suit property. There is a big gate and a small door on the west side of the suit property. It is further averred that there were disputes between the plaintiff, defendants and neighbour Shiv Narayan regarding the common wall of the suit property. Thus, complaints were filed before the Revenue Officer from time to time. It was further averred that though the defendants No. 1 to 6 also admitted to possession of the plaintiff, however, due to greed crept in their minds, they have fraudulently got their names mutated in the revenue records in respect of the suit property after death of their father Mangilal and thereafter they had executed a registered sale deed in favour of defendant No. 7 Nirmala on 30.04.2008. It was further averred that earlier defendants No. 1 to 6 had filed an application before the concerned Tehsildar which was rejected by the Tehsildar on 30.03.2008 and for this reason they connived with defendant No.7 and the aforesaid sale deed was executed. It was thus pleaded that the said sale deed dated 30.04.2008 is not binding upon the plaintiff. In view of the above pleadings, the relief of declaration of exclusive title, correction of revenue records, declaration of sale deed dated 30.04.2008 null and void as well as permanent injunction was sought. The defendants No. 1 to 6 and defendant No. 7 filed their separate written statements in denial of the pleadings in the plaint. It was stated by the defendants No. 1 to 6 that the suit property was purchased by their father Mangilal and it is incorrect to say that Ramchandraji was having any share in the suit property as it was purchased by Mangilalji out of his own income.
The execution of agreement on 18.07.1958 was also denied. The possession of plaintiff and before him his father was also denied. The will dated 02.07.2000 executed by the mother of the plaintiff in his favour was also denied by stating that the same is not binding upon the defendants. It was averred in para 6 of the written statement that the suit property was not in possession of the plaintiff in fact their father Mangilal had permitted the father of the plaintiff to park his old car in the suit property due to their relationship of being real brothers. However, when the defendants required the plaintiff to remove the same, he started the dispute. Thus, title and possession both were denied by the defendants No. 1 to 6. Similarly, defendant No. 7 also denied the title and possession of the plaintiff. It was stated that the suit property was purchased by the father of defendants No. 1 to 6 Mangilal out of his own income. The execution of the agreement dated 18.07.1958 was denied and it was stated that Mangilalji - father of defendants No. 1 to 6 was a habitual alcoholic, the plaintiff and his father may have got some stamps signed but father of the plaintiff never remained in possession of the suit property.
Based on the rival pleadings, the trial Court framed 4 issues. The issue Nos. 1 to 3 were substantive issues and issue No. 4 was with respect to relief and expenses. All the issues were decided against the plaintiff/appellant and in favour of defendants (present respondents), however, the trial Court found possession of the plaintiff/appellant. Thus, by relying on the judgment of the Hon'ble Apex Court in the case of Rame Gowda (D) By LRs vs. M. Varadappa Naidu (D) By LRs & Anr., 2004 (1) MPJR 366 protected possession of the plaintiff/appellant by issuing permanent injunction. As such, the suit of appellant was dismissed with respect to title however, decree for protecting his possession was passed vide judgment and decree dated 30.04.2011.
The appellant/plaintiff as well as the defendants/respondents being aggrieved by the aforesaid judgment filed their separate appeals before the First Appellate Court. The appeal filed by the plaintiff was registered as 39A/2011 and the appeal filed by the respondents was registered as 40A/2011. The First Appellate Court considered the issue of title of the plaintiff/appellant from para 11 to 15. The Court after extensive appreciation of evidence concluded that there is no document showing transfer of title of the suit property in favour of father of the plaintiff. The Court found that the agreement (Exhibit P/1) was insufficiently stamped unregistered instrument which cannot be treated to be an instrument for transfer of immovable property in view of the clear provisions of Section 17 and 49 of the Registration Act, 1908. Thus, the Court in para 15 concluded that title of plaintiff/appellant is not found proved. The Court also considered the issue of adverse possession and concluded in para 18 that it is the case of plaintiff himself that his father Ramchandraji entered into possession of the suit property based on Exhibit P/1 agreement, the as per plaintiff itself the possession was permissive. The First Appellate Court found that it has not been pleaded in the plaint as to when this permissive possession turned hostile. Thus, the Court found that no relief based on adverse possession could have been granted. Thus, this issue was also decided against the plaintiff/appellant. The First Appellate Court considered the issue of possession in para 19 of the impugned judgment and based on Exhibit P/10 as well as P/11 found possession of the appellant/plaintiff on the suit property. However, the Court considered that the judgment of the Hon'ble Apex Court in case of Rame Gowda (supra) was later on considered by the Hon'ble Apex Court in case of Maria Margarida Sequeira Fernandez & Ors. vs. Erasmo Jack de Sequeira, AIR 2012 SC 1727. The Hon'ble Apex Court in the said case considered the term "due process of law'' used in case of Rame Gowda. The Court concluded that due process means opportunity of being heard as nobody should be condemned unheard. A person in settled possession will not be dispossessed except by due process of law and it does not mean whole trial. Apart from the judgment of Maria Margarida (supra), the Appellate Court also considered the judgment of the Delhi High Court in case of Thomas Cook (India) Limited vs. Hotel Imperial, 2006 (88) DRJ 545 and ultimately it concluded that in view of the fact that the appellant failed to prove his title with respect to suit property, consequentially he is not entitled for protection of his possession, thus the appeal of the present appellant was dismissed and the appeal filed by the respondents was allowed vide judgment dated 10.10.2013. Hence, the present appeal before this Court by the plaintiff/appellant.
Learned counsel for the plaintiff/appellant while arguing on the question of protection of possession submitted that the First Appellate Court has grossly erred in reversing the decree of permanent injunction granted by the trial Court in view of the fact that the Appellate Court itself found possession of the appellant as concluded by it in para 19 of the impugned judgment. He submits that once this conclusion was drawn by the First Appellate Court, it was a bounden duty of the Court to protect the possession of appellant in view of settled position of law that once a person is found in settled possession, the same cannot be disturbed without due process of law. In support of his submission he has placed reliance on the judgment passed in case of Rame Gowda (supra).
The learned counsel also placed reliance on the judgments of Hon'ble Apex Court as well as this Court rendered in the case of Balu vs. Ummed Singh & Ors. reported in 1990 RN 172; Gajendra Sing vs. Mansingh & Ors., 2000 (2) MPLJ 316; Dhansingh vs. Ganguba, AIR 1992 MP 311; Rameshwar vs. Smt. Alka, 2012(1) JLJ 443 as well as Puran Singh & Ors. vs. The State of Punjab, AIR 1975 SC 1674.
The learned counsel for the appellant apart from the above also stressed upon the fact that the Appellate Court and even the trial Court erred in law while denying decree of title based on adverse possession. His submission is that the plea of adverse possession need not be specifically pleaded. It is included in the plea of title and for this proposition, he has placed reliance on the judgment of this Court rendered in the case of Chandasingh vs. Kalyansingh, 1981 (2) Weekly Note 257 . He further submitted that even if the agreement (Exhibit P/1) was an unregistered instrument, still based on the same the appellant and his family entered into possession and considering that they are in long-standing possession of the property, they have perfected their title based on this unregistered deed. In support of this proposition, he has placed reliance on the judgment rendered in case of Karamsingh vs. Surajmal Rameshchandra (Firm), 1979 M.P. Weekly Note 57 . Learned counsel thus submits that the appeal involves substantial questions of law hence, deserves to be admitted for hearing.
Per contra, learned counsel for respondent No. 7 opposed the appeal on several grounds. His first contention is that findings regarding possession are in fact wrongly construed by the appellant. What has come to the fore from the findings of the trial Court in view of the documents Exhibit P/10 and P/11 is that some of the artifacts/things of the appellant are lying on the suit property and not that entire suit property is in possession of the appellant. His second contention is that even if it is accepted for the sake of argument that the appellant is in possession of the suit property, the same cannot be protected after a full-fledged trial before the competent Court of law when the judgment and decree of the civil Court was assailed before the Appellate Court wherein the appellant has miserably failed on both occasions to establish his title on the suit property. He submits that this process has satisfied the requirement of due process of law. As such, the law as laid down in the case of Rame Gowda (supra) will not come to rescue the appellant and thus, the appeal deserves to be dismissed.
In support of his submissions, learned counsel for the respondents has placed reliance on the judgment of this Court in case of Suleman vs. Narendra Kumar in Second Appeal No. 1258/2021 dated 15.09.2023 as well as in case of Maria Margarida (supra).
Apart from the above, learned counsel submitted that in fact there is another aspect of the matter in as much as the relief of permanent injunction was not the main relief in the suit. He submits that what was sought by the appellant in the suit was declaration of title and based on such title, the consequential relief of permanent injunction was prayed for. He submits that once the main relief was denied by the trial Court, the consequential relief of permanent injunction could not have been granted. For this proposition, he places reliance on the judgment of the Hon'ble Apex Court in case of Padhiyar Prahladji Chenaji vs. Maniben Jagmalbhai, (2022) 12 SCC 128. He, thus, supports the impugned judgment and decree and prays for dismissal of the appeal.
Heard learned counsel for the parties. Perused the record.
As far as the issue of adverse possession is concerned, a perusal of the entire plaint would show that what was pleaded by the plaintiff before the trial Court was existence of his title based on Exhibit P/1. According to the plaintiff himself, his father entered into an agreement with the father of defendants No. 1 to 6 pursuant to which agreement was executed and his father became title holder of the suit property on 18.07.1958 and after the death of his father, he and his mother became the title holder of the suit property. The submission of the learned counsel for the appellant that plea of adverse possession is included in the plea of title is not sustainable in the facts of the present case. It has now been settled by the Hon'ble Apex Court in a catena of judgment that plea of adverse possession is a plea where the rightful owner of the property is deprived from his rights on the property. Thus, there is no equity in favour of the person who pleads adverse possession and it is a burden very heavy upon that person to prove as to when the possession has become hostile to the true owner of the property.
In the present case, contrary has been pleaded. In the present case, it has been placed that father of defendants No. 1 to 6 executed agreement and with his consent, father of the plaintiff entered into possession of the suit property. Even the written statement of the defendants would show that they pleaded that father of the plaintiff was permitted to park his car in the suit property. Thus, there is complete absence of any pleading and evidence for establishing that possession of the plaintiff became hostile on a particular date and in absence of which no decree of declaration of title based on adverse possession could have been granted by the trial Court. The Hon'ble Supreme Court in the case of Narasamma v. A. Krishnappa, (2020) 15 SCC 218 held in para 30 to 38 as under:
30.We may also note that on the one hand, the appellants herein have sought to take a plea of bar of limitation vis-à-vis the original defendant claiming that possession came to them in 1976, with the suit being filed in 1989. Yet at the same time, it is claimed that the wife had title on the basis of these very documents. The claim of title from 1976 and the plea of adverse possession from 1976 cannot simultaneously hold. On the failure to establish the plea of title, it was necessary to prove as to from which date did the possession of the wife of the defendant amount to a hostile possession in a peaceful, open and continuous manner. We fail to appreciate how, on the one hand the appellants claimed that the wife of the original defendant, Appellant 1 herein, had title to the property in 1976 but on their failure to establish title, in the alternative, the plea of adverse possession should be recognised from the very date.
31.We also find that the reliance placed by the learned counsel for the appellants in Ravinder Kaur Grewal [Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729 : (2019) 4 SCC (Civ) 453] is also misplaced. The question which arose for consideration before the three-Judge Bench was whether, a suit could be maintained for declaration of title and for permanent injunction seeking protection on a plea of adverse possession, or that it was an instrument of defence in a suit filed against such a person. In fact, if one may say, there was, for a long time a consistent view of the Court that the plea could only be of shield and not a sword. The judgment changed this legal position by opining that a plea to retain possession could be managed by the ripening of title by way of adverse possession. However, to constitute such adverse possession, the three classic requirements, which need to co-exist were again emphasised, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge.
32.The question which confronts us is not the aforesaid, but whether simultaneously a plea can be taken of title and adverse possession i.e. whether it would amount to taking contradictory pleas. In this behalf, we may refer to the four judgments cited by the learned counsel for the respondent herein, which succinctly set forth the legal position.
33.In Karnataka Board of Wakf case [Karnataka Board of Wakf v. Union of India, (2004) 10 SCC 779, para 11] , it has been clearly set out that a plaintiff filing a title over the property must specifically plead it. When such a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. In that context, it was observed in para 12 that “… The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.”
34.The aforesaid judgment in turn relied upon the judgment in Mohan Lal [Mohan Lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639] , which observed in para 4 as under: (SCC pp. 640-41)
“4.As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor-in-title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e. up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.”
35.In order to establish adverse possession an inquiry is required to be made into the starting point of such adverse possession and, thus, when the recorded owner got dispossessed would be crucial. [P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59]
36.In the facts of the present case, this fact has not at all been proved. The possession of Smt Narasamma, the wife of the defendant, is stated to be on account of consideration paid. Assuming that the transaction did not fructify into a sale deed for whatever reason, still the date when such possession becomes adverse would have to be set out. Thus, the plea of adverse possession is lacking in all material particulars.
37.The possession has to be in public and to the knowledge of the true owner as adverse, and this is necessary as a plea of adverse possession seeks to defeat the rights of the true owner. Thus, the law would not be readily accepting of such a case unless a clear and cogent basis has been made out [M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1] .
38.We may also note another judicial pronouncement in Ram Nagina Rai v. Deo Kumar Rai [Ram Nagina Rai v. Deo Kumar Rai, (2019) 13 SCC 324 : (2018) 5 SCC (Civ) 722] dealing with a similar factual matrix i.e. where there is permissive possession given by the owner and the defendant claims that the same had become adverse. It was held that it has to be specifically pleaded and proved as to when possession becomes adverse in order for the real owner to lose title 12 years hence from that time.
As such, in view of the above position of law, the case of Chandansingh (supra) as cited by the learned counsel for the appellant with respect to adverse possession will not held him. The trial Court as well as the First Appellate Court in para 18 of the impugned judgment has rightly concluded against the appellant on this issue.
As far as the title of the plaintiff based in Exhibit P/1 is concerned, the first Appellate Court has correctly concluded in para 15 that Exhibit P/1 is an unregistered document which cannot confer any title of an immovable property having value more than Rs. 100/- on the father of the plaintiff. In the considered view of this Court, there is no infirmity in this conclusion of the First Appellate Court. The provisions of Registration Act, 1908 and the Transfer of Property Act enjoins upon each and every person for executing instrument in accordance with the provisions of the said Acts for effecting sale of an immovable property. In the present case, the same is completely absent. Neither there is registration nor proper stamping on the so called agreement (Exhibit P/1). Thus, on this issue also the findings of both the Courts below are confirmed. The Hon'ble Apex Court in the case of Appineni Vidyasagar v. State of A.P. , (2004) 11 SCC 186 held in para 5 to 7 as under:
5.Learned counsel for the appellant submitted that the appellant having purchased the land, though not under a registered sale deed, did acquire title though imperfect. All the same, he was in possession of the land in question and, therefore, according to him, the landlord could not have surrendered the land in possession of the appellant, and he should have been compelled to surrender other lands which were in his personal possession in excess of the ceiling limit. He drew our notice to Section 10(5) of the A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (hereinafter referred to as “the Act”) and submitted that since there was an encumbrance on the land in question on account of the unregistered sale deed executed in favour of the appellant, the Tribunal ought to have rejected the surrender made by the landlord of the land in question, and ought to have compelled him to surrender other lands which were not involved in dispute of any kind as contemplated by sub-section (5) of Section 10 of the Act.
6.The High Court having considered the orders of the Land Reforms Tribunal and the Land Reforms Appellate Tribunal, came to the conclusion that both the Tribunals had fully considered the matter and had reached the right conclusion that the land, of which the appellant may have been in possession for some time, could be surrendered because in the absence of valid transfer of title the land formed part of the holding of the owner. The courts below have also relied upon the judgment of this Court in State of A.P. v. Mohd. Ashrafuddin [(1982) 2 SCC 1] in which it was observed as follows: (SCC p. 4, para 9)
“9.It is by now well settled that a person in possession pursuant to a contract for sale does not get title to the land unless there is a valid document of title in his favour. In the instant case it has already been pointed out that the transferee came into possession in pursuance of an agreement for sale but no valid deed of title was executed in his favour. Therefore, the ownership remained with the respondent transferor. But even in the absence of a valid deed of title the possession pursuant to an agreement of transfer cannot be said to be illegal and the transferee is entitled to remain in possession. If per chance he is dispossessed by the transferor, he can recover possession. The transferor cannot file any suit for getting back possession but all the same he will continue to be the owner of the land agreed to be transferred. The respondent, in our considered opinion, satisfies the conditions contemplated by the definition of the term ‘holding’ and the land transferred by him under a defective title deed will form part of his holding. The High Court, therefore, erred in holding that the land in possession of the transferee cannot be taken to be a part of the holding of the respondent transferor.”
7.We have perused the orders of the Land Reforms Tribunal as well as the Land Reforms Appellate Tribunal and we find no reason to take a different view. It cannot be disputed that the land in question had not been validly transferred in favour of the appellant and, therefore, the erstwhile owner in the absence of a valid sale deed continued to be the holder of the land. The matter has also been examined from another angle, namely, whether the appellant acquired title to the land in question by adverse possession. Even that has been answered against the appellant. In these circumstances, the High Court has rightly dismissed the CRP preferred by the appellant.
This Court in the case of Kamal Singh v. Sharif Khan, 2024 SCC OnLine MP 1522 has considered the issue of transfer of title by an unregistered document. After considering the statutory provisions the court held in para 8 to 12 as under:
8.On perusal of the document Ex. P-1 it is found that this document is an agreement to sell and it is an unregistered document. Section 54 of the Transfer of Property Act defines the sale which reads as under:—
Section 54 defines the “Sale” of immovable property.-Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made — Such transfer, in the case of tangible immovable property of value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.”
9.In the case of Meghmala v. G. Narasimha Reddy, (2010) 8 SCC 383 it is held that an agreement to sell does not create any right or title in favour of the intending buyer. In the case of Suraj Lamp and Industries Pvt Ltd. v. State of Haryana, JT (2011) 12 SC 654 it is held that transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law) no right, title or interest in an immovable property can be transferred.
10.Section 17 of the Registration Act, 1908 also provides the registration of document. Section 17 reads as under:—
17. Documents of which registration is compulsory.—
(1)The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:—
(a)instruments of gift of immovable property;
(b)other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c)non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d)leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e)non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:
11.Section 49 of the Registration Act, 1908 reads as under:—
“49.Effect of Bosa-registratioii of documents required to be registered.—No document required by section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall—
(a)affect any immovable property comprised therein, or
(b)confer any power to adopts or
(c)be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
[Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument]
12.So on perusal of the provisions of Section 54 of the Transfer of Property Act, Sections 17 and 49 of the Registration Act it is clear that no right, title or interest in immovable property can be transferred without registration of the sale deed.
As such, the appellant cannot claim title based on an unregistered instrument, moreover in the present case, the said instrument is only a purported agreement to sale and not even an unregistered sale deed.
This brings us to the last issue i.e. protection of possession of the appellant. The fulcrum of the argument of learned counsel for the appellant on this issue is that the First Appellate Court in para 19 of the impugned judgment has concluded that appellant is in possession of the suit property. His submission is that same was the finding of the trial Court. Thus, the trial Court correctly protected the possession of the appellant and Appellate Court has illegally reversed that finding. This argument is based on the proposition as laid down by the Hon'ble Apex Court in the case of Rame Gowda (supra). However, the learned counsel for the appellant has completely ignored the subsequent judgment of the Hon'ble Apex Court passed in case o f Maria Margarida (supra). In the said case, the Hon'ble Apex Court explained the purport of due process of law. A careful reading of the said judgment would show that filing of the suit by the appellant/plaintiff for declaration of title and consequential decree denying relief of title after giving full trial in which full opportunity to lead evidence and prove his case was given by the trial Court are sufficient compliance of the said requirement. Thus, the appellant here is not being condemned unheard. It is also to be kept in mind that even the revenue authority did not entertain the application of defendant No. 1 to 6 only for the reason that dispute of title was pending. It is not even the case of appellant / plaintiff that the defendants are using force against them. As such, in the considered view of this Court, the First Appellate Court has correctly reversed the judgment and decree of the trial Court with respect of permanent injunction.
There is yet another reason for reaching to this conclusion. A perusal of the plaint would show that the case was brought by the appellant for declaration of title and consequential relief of protection of possession. However, the trial Court as well the First Appellate Court did not find the title of the appellant on the suit property. Thus, on this issue both the Courts concurrently dismissed the suit of the appellant and once the suit for substantive/main relief was dismissed, it was imperative for both the Courts below that the suit for consequential relief of permanent injunction should also be dismissed. The Hon'ble Apex Court in case of Padhiyar Prahladji (supra) has held in para 28 to 30 as under :
"28.In the said decision in Maria Margarida (supra), this Court has approved the following findings of the High Court of Delhi in Thomas Cook (India) Ltd. v. Hotel Imperial (supra)
"28.The expressions "due process of law", "due course of law" and "recourse to law" have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed "forcibly" by the true owner taking law in his own hands. All these expressions, however, mean the same thing-ejectment from settled possession can only be had by recourse to a court of law. Clearly, "due process of law" or "due course of law", here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner. Now, this "due process" or "due course" condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the "bare minimum" requirement of "due process" or "due course" of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the "recourse to law" stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action. Thus, in the present case, the plaintiff's failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law."
29.Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand and once the rights of the parties are adjudicated and Defendant 1 is held to be the true owner on the basis of the registered sale deed and on payment of full sale consideration, it can be said that due process of law has been followed and thereafter the plaintiff is not entitled to any permanent injunction against the true owner.
30.In view of the above discussion and for the reasons stated above, all the courts below have erred in granting permanent injunction in favour of the plaintiff and against Defendant 1, who is the true owner. After having held that the plaintiff had no title and after dismissing the suit qua the cancellation of the registered sale deed and the declaration, the plaintiff is not entitled to relief of permanent injunction against Defendant 1 - the true owner."
As far as the reliance placed by the learned counsel for the appellant on the judgment of the Hon'ble Apex Court in case of Rame Gowda (supra) and Dhansingh (supra) are concerned, in view of the above analysis and the law as laid down by the Hon'ble Apex Court while considering the judgment of Rame Gowda (supra) in the case of Maria Margarida (supra), the requirement of due process of law has been satisfied. Thus, the same will not come to rescue the appellant in the present case. As regards the judgment in case of Balu Singh (supra) what was held in the said case is that the possession could not have been disturbed in absence of due process of law. As regards the orders passed by this Court and relied upon by the learned counsel for the appellant, in view of the above discussion, the judgments of the Hon'ble Apex Court in the case of Maria Margarida (supra) a n d Padhiyar Prahladji (supra) would show that in the present case, the requirement of due process of law has been satisfied. Thus, these cases will also not come to the rescue of the appellant.
In view of the above analysis of facts and the position of law, this Court is of the considered view that the First Appellate Court has correctly recorded its findings and there is no perversity or infirmity in the same. The appeal is bereft of any substantial question of law. Thus, the same is hereby dismissed.
No order as to cost.
Record of the Courts below be sent back.