Noormohammad Bhurekhan vs Masidkhan Chandkhan and Others

S.D. Jha, J.

By this petition under Articles 226 and 227 of the Constitution of India, the petitioner, who is defendant in Civil Suit No. 1/22/90, pending in Court of Civil Judge Class II, Badnagar, District Ujjain, challenges order dated 19-3-1991 passed by First Additional Judge to the Court of District Judge, Ujjain, whereby he partly modified the order dated 26-4-1990 granting injunction in favour of the petitioner defendant and directed that the order dated 264-1990 passed by the Trial Court in favour of the defendant shall be applicable only in respect of l/3rd share of the suit land situated at Bhaisalakalan and the plaintiffs shall be able to keep their possession over 2/3rd of the land.

The respondents Nos. 1 and 2, who are plaintiffs in the suit, filed suit for permanent injunction against the petitioner-defendant and pro forma defendant State of M.P. praying for perpetual injunction restraining petitioner defendant Noormohammad from interfering with their possession over Section Nos. 17, 18 and 19 area respectively 0.199, 3.480 and 0.376 hectares total area 4.055 hectares, land revenue 23.50. Both the plaintiffs and the defendant filed application for temporary injunction praying for restraining respectively the other party from interfering with the possession over the suit land of the respective applicants. The Civil Judge, Class II, Badnagar by order dated 26-4-1990 rejected the application of the plaintiff, but granted the application of the defendant petitioner and restrained the plaintiff from interfering over the lands situate at Bhaisalakalan described in the order. In appeal the learned Additional District Judge modified the order as already stated above.

At the hearing of petition Shri B.L. Pavecha, learned Advocate was present for the petitioner. Despite service of notices, the respondents did not file any return and they were not present at hearing dated 23-5-1991 in spite of S.P.C.

Shri B.L. Pavecha, learned counsel for the petitioner submitted that the lower appellate Court, Additional District Judge, Ujjain, upheld the finding of the trial Court that prima facie the respondent No. 1, Noormohammad, the present petitioner, was in physical possession of the disputed land. Having so held the learned Additional District Judge was in legal error in modifying the injunction granted in favour of the petitioner by the trial Court on the ground that granting of injunction on the strength of mere possession is an outmoded concept. He also erroneously placed reliance on the Supreme Court decision referred to in the order i.e. Gangubai Bablya Chaudhary and Others Vs. Sitaram Bhalchandra Sukhtankar and Others, and judgment of this Court in Chandan Singh v. Jairam Singh 1986 MPWN 116 . Proceeding further Shri Pavecha submitted that the petitioner was in settled possession of the disputed land and, therefore, temporary injunction as granted by the trial Court ought to have been upheld and should not have been modified. In support of his contention Shri Pavecha relied on the following decisions Krishna Ram Mahale (Dead), by his Lrs. Vs. Mrs. Shobha Venkat Rao, Yeshwantsingh v. Jagdish Singh AIR 1968 SC 620 and Munshiram v. Delhi Administration AIR 1968 SC 620.

5-6. The land in question is agricultural land and the present case is not of one of partnership. Reliance of the learned Additional District Judge on Gangubai Bablya Chaudhary and Others Vs. Sitaram Bhalchandra Sukhtankar and Others, which was not a case of agricultural land and was a case of a partnership would not apply to the present suit particularly so because the learned Additional District Judge himself had found that the petitioner is in possession of the disputed land though he also held that he was in permissive possession. The other decision Ramlal v. State of M.P. 1990 R.N. 108 , was not a case granting temporary injunction and was, therefore not directly relevant for decision on the point in controversy. In Krishna Ram Mahale (Dead), by his Lrs. Vs. Mrs. Shobha Venkat Rao,

"Mr. Tarkunde, learned counsel for defendant No. 3 the appellant, rightly did not go into the appreciation of the evidence either by the trial Court or the High Court or the factual conclusions drawn by them. It was, however, strongly urged by him that the period of licence had expired long back and the plaintiff was not entitled to the renewal of licence. It was submitted by him that in view of the licence having come to an end, the plaintiff had no right to remain in charge of the business or the premises where it was conducted and all that the plaintiff could ask for was damages for unlawful dispossession even on the footing of facts as found by the High Court. We find ourselves totally unable to accept the submission of Mr. Tarkunde. It is a well-settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. If any authority were needed for that proposition, we could refer to the decision of a Division Bench of this Court in Lallu Yeshwant Singh Vs. Rao Jagdish Singh and Others, This Court in that judgment cited with approval the well-known passage from the leading Privy Council case of Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy 51 IA 293 :AIR 1924 PC 144 where it has been observed p. 208 of SCR at p. 622 of AIR :

"In India persons are not permitted to take forcible possession : they must obtain such possession as they are entitled to through a Court".

The decision in para 8 refers to Lallu Yeshwant Singh v. Rao Jagdish Singh AIR 1968 SC 620 and Privy Council decision in Midnapur Zamindary Co.Ltd. v. Naresh Narayan Roy which has taken the same view. The second decision Ram Rattan v. State of U. P. (supra) and Vishnu Mahadeo Pendse Vs. The Rajen Textile Mills (P) Ltd. and Another, in the context of the criminal cases lay down what is the settled possession and whether a trespasser, who has entered into possession of the land in question can protect his possession against the true owner. For the purpose of this petition a detailed discussion is not necessary.

In our view, having regard to enunciation of law contained in Krishna Ram Mahale v. Mrs. Shobha Venkat Rao (supra) the petitioner, who has been found to be in de facto possession of the suit land, which possession has been described as prima facie de facto and permissive by the first appellate Court is entitled to protect his possession till he is evicted from the land in due course of law. In this view of the matter the temporary injunction granted by the trial Court in favour of the petitioner should not have been modified by the learned Additional District Judge.

We, therefore, set aside the order passed by the learned Additional District Judge, Ujjain, and restore the injunction passed by the trial Court. The petition is allowed with no order as to costs.