w w w . L a w y e r S e r v i c e s . i n

Parkash Singh V/S State of Haryana and Others.

    Civil Revision No. 4691 of 1999

    Decided On, 15 January 2002

    At, High Court of Punjab and Haryana


    For Petitioner: Vivek Singal and Arun Nehra, Advocates And For Respondents: J.P. Dhull, Advocate.

Judgment Text

1. Through this order, civil revision Nos.4691, 4679, 4690, 4693 and 6232 of 1999 shall be disposed as the same question of law and fact is involved in all these revisions.

2. Facts are being taken from civil revision No. 4691 of 1990.

3. Parkash Singh filed suit for permanent injunction against the States of Haryana, Punjab and Rajasthan restraining them from dispossessing him from the house as detailed in the heading of the plaint forcibly and unlawfully or demolishing the superstructure raised by him. It is alleged in the plaint that he was brought to village Ahli Sadar as "Kami" by Bhakhra Oustees who gave him site on the assurance that he would not be dispossessed therefrom. Thereafter, he constructed two rooms, kitchen and chappar over the suit property. He has been in possession for the last 30 years and residing in the house constructed by him. He has taken electricity connection and is regularly paying electricity charges and challan tax. He has also submitted an application for allotment of suit property to him on government rate. Defendants have threatened to dispossess him from the suit property illegally and forcibly. In case, they succeed in doing so, he will suffer irreparable loss. Alongwith the plaint, he made application under Order 39 Rules 1 and 2 read with Section 151 CPC for the grant of temporary injunction to the said effect.

4. Defendants contested this application. It was denied that the plaintiff has been residing in the suit property for the last 30 years or electricity connection is in his name. He is not recorded in government record as in possession. Task of re-settlement of Bhakhra Oustees was looked after by the Bhakhra Beas Management Board. Allotment was made to the workers but no allotment was made to the plaintiff. Plaintiff wants to illegally occupy suit property through the instrumentality of the present suit, Since he is not in possession of any land, question of his dispossession or causing of irreparable loss to him does not arise. They (defendants) have every right to prevent illegal encroachment. Plaintiff has no prima facie case nor balance of convenience is in his favour.

5. Vide order dated 29.5.1997, Additional Civil Judge (Sr. Division), Fatehabad granted temporary injunction to the plaintiff restraining the defendants from dispossessing him from the suit property, otherwise than in due course of law till the disposal of the suit.

6. State of Haryana went in appeal. Vide order dated 16.8.1999, Additional District Judge, Hissar allowed the appeal.

7. Not satisfied with the order of Additional District Judge, Hissar dated 16.8.1999, plaintiff has come up in revision to this Court.

8. It was submitted by the learned counsel for the petitioner that both the courts below have concurrently found that the plaintiff is in possession. The suit land was allotted by the State Government to the Bhakhra Oustees. Members of Pursharthi Committee, Ahli Sadar who were in possession of the land gave possession to the plaintiff and others about 30 years ago. Since then, he has been in possession. It was submitted that only the proprietary rights remains to be conferred upon the allottees. It was submitted that the plaintiff is in lawful possession. Earlier suit filed by Parkash Singh against the Pursharthi Committee etc. for permanent injunction was decided in favour of the plaintiff. Appeal of the Pursharthi Committee was dismissed by the Additional District Judge, Hisar vide order dated 17.10.1996. It was submitted that letter dated 17.1.1996 vide which suit land was allegedly taken from him is merely a paper transaction. It was submitted that it is a small house which is being occupied by the plaintiff for the last 30 years, Electricity connection is in his name and he is paying chullah tax to the Panchayat. The fact that he has been in possession all along is in the knowledge of defendant. They acquiesced in his possession. They were in possession by the original allottees. As to what was the nature of the rights of the original allottees, that can be determined only by the terms and conditions on which land was allotted to the original allottees. It was submitted that defendants are in possession of the record showing the terms and conditions on which land was allotted to the original allottee. It was submitted that the fact does remain that the plaintiff is in possession. A person in settled possession cannot be dispossessed forcibly. If a person in settled/peaceful possession is to be dispossessed, recourse to law has to be had and no body can be allowed to take law in his own hands, be it State or any other person. It was submitted that at no cost defendants could displace the settled possession of the plaintiff without recourse to law.

9. In support of this submission, he drew my attention to R. V. shupal Prasad v. State of Andhra Pradesh and Ors. 1995(2) CCC 662 (S.C.) where it was held that a person entering into Govt. land and remained in unlawful possession, though trespasser cannot be ejected by Govt. forcibly. Govt. to take action under law against the trespasser. Learned counsel also drew my attention to East India Hotels Ltd. v. Syndicate Bank at page 52 where the Hon'ble Supreme Court held that "law respects possession even if there is no title to support it. No one is permitted to take law in one's own hands and to dispossess the person in actual settled possession without due course of law. No person can be allowed to become a judge in his own case." It was further held that "maintenance of law and order and enthusing confidence in the efficiency of rule of law are condition precedent for orderly society. Therefore, giving primacy, legitimacy or legality to the conduct or acts of the landlord to take possession of the property in derogation of the due course of law would be deleterious to rule of law and a pat on high-handedness of self-help."

10. Learned counsel for the respondents, on the other hand submitted that the petitioner's is a trespasser. A trespasser has no right to remain in possession with the aid of the Court against a true owner. It was submitted that the Court cannot grant injunction to enable a trespasser to remain in possession and thus perpetuate the act of trespass. In support of this submission, he drew my attention to Ram Rattan and Ors. v. State of Uttar Pradesh where it was held that a true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or process of trespassing and has not accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law.

11. Learned counsel for the respondents also drew my attention to Tamil Nadu Housing Board v. A. Viswam (dead) by Lrs : 1996(8) S.C.C. 259 where the Hon'ble Supreme Court observed that no injunction could be issued against a lawful owner of the property. In Smt. Gur Dei v. Arjan Singh (dead) through LRs. (1997)115 P.L.R. 666 (S.C.), it was held that no injunction can be claimed against the owner.

12. Learned counsel for the petitioner submitted that it may be true that no injunction can be granted to a rank trespasser against a true owner but injunction can always be granted to a trespasser whose act of trespass is sufficiently old and it has acquired settled possession.

13. It was submitted that the plaintiff-petitioner is not a rank trespasser He was inducted into possession by the original allottee. He constructed a house, got electricity connection and is residing there. He is in possession for the last 30 years. It was submitted that assuming that he is a trespasser, he is not such a trespasser, who can be dispossessed forcibly. He may be a trespasser but he is in settled possession for the last over 30 years and as such he is entitled to the protection of the Court against unlawful invasion on his possession.

14. In Walter Louis Franklin (dead) through LRs. v. George Singh (Dead) through Lrs. 1997(2) R.C.R. 41 it was held by the Hon'ble Supreme Court that a person in possession of immovable property is entitled to injunction even against the true owner. The true owner is entitled to seek possession only by dispossessing such person in accordance with law by filing a suit for possession.

15. So that a trespasser could be entitled to injunction, he has to show that he is in possession for over a sufficiently long period.

16. Learned counsel for the respondents on the other hand submitted that a person in long possession of the property without any right, title, grant or lease has no right to retain possession against a true owner and that he is not entitled to injunction. In support of this submission, he drew my attention to Osmania University v. Dr. Rajeshwar Rao 1990 CCC 21 (A.P.) where it was held that the merely because a true owner cannot evict a trespasser forcibly, it does not follow that a trespasser can obtain injunction as of right against the true owner. The remedy of permanent or temporary injunction is, it is well settled, basically an equitable relief and the plaintiff must come to court with clean hands. The plaintiff cannot therefore normally be permitted to seek the aid of the court to protect his unlawful possession for seeking injunction against the true owner.

17. In Jiya Lal \. Muni Lal 2002(3) R.C.R. 410 this Court held that the injunction cannot be issued in favour of a trespasser against true owner. If temporary injunction is granted to a trespasser that would mean driving the true owner to go to civil Court and ask for possession against wrong-doer.

18. In 200(3) R.C.R. 410 (supra), Defendants resisted the prayer of the plaintiff urging that one Sunder Lal son of Karta Mal had donated portion ABCD show in the site plan Annexure-A to Arya Smaja Mandir/School by way of registered Hibanama dated 12.5.1930. At present, Krishn Lal legal heir of Sunder Lal donated the suit land, which is a piece of land marked as AEFG in the site plan in Annexure A to the Arya Samaj Mandir/SchooI. Pursuant to Hibanama dated 21.8.1997, Arya Samaj Mandir/School (Defendant No. 4) came in possession of land shown by letters AEFG. Earlier with the consent of the legal representative of Sudner Lal, Arya Samaj Mandir/School had constructed a toilet which is shown as Mark-L in the portion of the land. With the laying of pacca toilets for school children through wall A-C of the School was closed. Petitioner-respondent was claiming injunction without any semblance of right or title to the property. Should injunction be granted to him even if he is exercising certain rights on the property, which fall short of the attributes of possession but which are mere acts of user. It was in this view that temporary injunction was refused to Jiya Lal by the appellate Court. Temporary injunction was refused to Jiya Lal in revision by this Court.

19. After surveying the case law, what I feel is that a trespasser has a right to claim injunction if he has some semblance of right or claim to the property. A rank trespasser who is out and out a trespasser having no semblance of claim or right has no right to claim equitable relief. In this case, the allottees were settled under the Punjab Colonisation of Government Lands (Punjab) Act, 1912.

20. Learned counsel for the respondents submitted that the allottees who had alienated the suit property to the plaintiff and others had not yet become owners thereof and as such they had no right to alienate the suit property.

21. Section 19 of the Punjab Colonisation of Government Lands (Punjab) Act, 1912 reads as follows:-

"19. Transfer of rights to be void-

Except as provided in Section 17, none of the rights or interests vested in tenant by or under the Government Tenants (Punjab) Act, 1893 (III of 1893), or this Act, shall without the consent in writing of the Commissioner, or of such officer as he may by written order empower in this behalf, be transferred or charged by any sale, exchange, gift, will, mortgage or other private contract, other than a sublease for not more than one year in the case of a tenant who has not acquired a right of a tenant who has not acquired a right of occupancy and seven years in the case of a tenant who has acquired a right of occupancy. Any such transfer or charge made without such consent in writing shall be void, and if (after the commencement of this Act) the transferee has obtained possession, he shall be ejected under the orders of the Collector:

Provided that right of sub-letting conferred by this section shall not release any tenant from a condition requiring him to reside in the estate in which this tenancy is situated."

22. It was submitted that the plot in question could not be transferred to the plaintiff without the consent in writing of the Commissioner, or of such officer as he may by written order empower in this behalf. It was submitted that a person who has obtained possession in violation of Section 19 could be ejected under the orders of the Collector. It was submitted that Civil Court has no jurisdiction as regards matter arising under this Act.

23. At this state in my opinion, the Court is to see whether plaintiff is in possession. If the alienation i

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n favour of the plaintiff from the original allottee(s) is in violation of Section 19 of the said Act, that will be a different matter. In that case, his title may be affected. He can remain in possession but with the rider to be thrown out only in due course of law. 24. Plaintiff has a prima facie case. Prima facie case means that he has a case which is not liable to be thrown at the out-set but which requires to be given consideration. Prima facie case does not mean that the plaintiff should have a cent percent case which will in all probability succeed at the trial, prima facie case means that the contentions which the plaintiff is raising merit consideration and are not liable to be rejected summarily. Balance of convenience is also in favour of the plaintiff. Plaintiff is in possession. If he remains in possession for some time more on the strength of the grant of injunction, heavens are not going to fail. Plaintiff will suffer irreparable loss, if he is thrown out of possession now inasmuch as he will be on the road. 25. For the reasons given above, I am of the opinion that these revisions should succeed. These revisions are accordingly allowed. Temporary injunction is granted in favour of the plaintiff-petitioners restraining the defendants from disposing them from the houses, they have constructed and further from demolishing the construction raised by them. If they are to be dispossessed, recourse to law has to be had by the defendants- State Government.