& Another Vs. Jagdish Mallah & Another  Insc 895 (4 December 2006)
Pasayat & S.H. Kapadia
out of SLP (C)No.19322 of 2004) KAPADIA, J.
(appellant no.1 herein) instituted Civil Suit No.202/77 for permanent
injunction in the court of Additional Munsif Magistrate-VII, Ballia, against
said suit appellant sought permanent injunction restraining the defendants from
interfering in the possession of the land in dispute or from raising boundary
wall. In the suit it was alleged that the appellants owned a house from the
time of their ancestors; that their sehan was towards the south of the said
house; that the said sehan was in their possession even prior to the enactment
of U.P. Zamindari Abolition and Land Reforms Act, 1950; and that their cattle, palanis
and troughs etc. existed on the said land which was utilized by the appellants
for different household purposes.
appellants further alleged that the disputed land was unbounded and that they
had started construction of the boundary wall after leaving a small passage
between their house and the sehan. The appellants further stated that they
could not complete the boundary wall as they had to go to Bombay where they
were employed; that when they came back from Bombay to the village they started
the work of reconstruction which was obstructed by the respondents and,
therefore, they were compelled to file the suit for a permanent injunction
restraining the respondents from interfering in the possession of the land in
dispute as also from interfering in the construction of the boundary wall.
respondents denied the above allegations. They contended that the disputed land
belonged to them; that the disputed land was used by them for different
household purposes; that they had been in possession of the land in dispute for
several years; that there was a passage between the house of the appellants and
the disputed land in question;
the respondents had constructed a wall which could not be completed on account
of the temporary injunction order obtained by the appellants in the present
suit. The respondents further contended that the appellants were not tilling
their agricultural land; that the appellants had let out their agricultural
land to others and, therefore, there was no need of keeping any cattle or
agricultural equipment on the disputed land as claimed by the appellants.
framing the issues the trial court decreed the suit.
trial court held that the appellants were the owners and they were in
possession of the disputed land.
by the decree passed by the trial court, the respondents herein carried the
matter in appeal vide Civil Appeal No.84 of 1979 in the court of Additional
District Judge, Ballia.
judgment and order dated 21.9.1981, A.D.J. came to the conclusion that the
plaintiff-appellants had failed to prove that the disputed land was his sehan
land; that appellant no.1 had admitted in his statement that one Raghunath Rai
was the real brother of his father; that separation had taken place in the
family between the appellants and Raghunath Rai; that prior to the separation,
the appellants and Raghunath Rai were joint; that at that time they had a
common sehan land and that the appellants sehan, at the time when the family
was joint, was towards the east of his house. The lower appellate court further
found that both the appellants and the respondents were claiming the disputed
land as an area appurtenant to their building. However, the lower appellate
court came to the conclusion that the boundary wall was constructed by the
respondents and not by the appellants.
lower appellate court further found that the appellants had no direct access to
the land in question; that there was a lane running between the appellants'
house and the disputed land in question; that the appellants were not using the
disputed land as his sehan from the time of their ancestors; that the
appellants had admitted that before the partition the present house of the appellants
was used for keeping cattle and that the sehan of the appellants before the
partition was towards the east and not towards the south of the house as
claimed by the appellants. The lower appellate court further found that the
respondents were using the land in dispute; they were keeping their cattle on
the disputed land; they were keeping fodder and other agricultural equipments
on the disputed land and in the circumstances the lower appellate court came to
the conclusion that the suit land was being used by the respondents for their
household purposes and they were in possession of the said land. In the
circumstances, the suit was dismissed by the lower appellate court.
by the judgment delivered by the lower appellate court, the appellants carried
the matter in second appeal to the High Court. By the impugned judgment, Second
Appeal No.2839 of 1981 was dismissed on 2.4.2004. Hence this civil appeal.
stated above, the lower appellate court vide judgment dated 21.9.1981 dismissed
the suit filed by the appellants.
dismissing the suit the lower appellate court held as follows:
consideration on the entire materials on record, as discussed above, I find
that the plaintiff has totally failed to establish that the disputed land was
ever possessed by him as his sahan land. He has also failed to establish that
the construction upto the time of the filing of the suit was got raised by him.
That being so, the plaintiff is not proved to be the owner of the disputed
land. Therefore, he is not entitled to get any relief as claimed. In the
result, the appeal succeeds and it must be allowed with costs." (underlined
by us) Dr. R.G. Padia, learned senior counsel appearing on behalf of the
appellants, submitted that the lower appellate court and the High Court had
erred in holding that the appellants were not in possession of the suit land as
their sehan land. It was further argued that the boundary wall was under
construction by the appellants and not by the respondents. Learned counsel
submitted that in any event the lower appellate court had erred in stating that
the appellants have failed to prove that they were the owners of the disputed
land. It was urged that the present suit was only for permanent injunction. It
was urged that the appellants had never sought a declaration of ownership and,
therefore, lower appellate court had erred in holding that the appellants had
failed to prove their title to the disputed land.
finding of facts, we do not wish to interfere. There is no reason to reverse
the concurring findings. However, suffice it to state that the lower appellate
court should have dismissed the suit filed by the appellants only on the ground
that the appellants had failed to prove that they were in possession of the
disputed lands. Under Section 38 of the Specific Relief Act, 1963 an injunction
restraining disturbance of possession will not be granted in favour of the
plaintiff who is not found to be in possession. In the case of a permanent
injunction based on protection of possessory title in which the plaintiff
alleges that he is in possession, and that his possession is being threatened
by the defendant, the plaintiff is entitled to sue for mere injunction without
adding a prayer for declaration of his rights [See: Mulla's Indian Contract and
Specific Relief Acts, 12th Edn., page 2815] In the case of A.L.V.R. Ct. Veerappa
Chettiar v. Arunachalam Chetti and others AIR 1936 Madras 200, it has been
held that mere fact that the question of title may have to be gone into in
deciding whether an injunction can be given or not is not any justification for
holding that the suit is for a declaration of title and for injunction. There
can be a suit only for an injunction. The present suit is only for permanent
injunction and, therefore, the lower appellate court should have, on the facts
and circumstances of this case, confined itself to its dismissal only on the
ground that the appellants have failed to show that they were in possession.
has been done but the declaration that the appellants are not the owners, was
to above clarification, the appeal stands dismissed with no order as to costs.