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PETITIONER: SMT. RAJNIBAI @ MANNUBAI

       Vs.

RESPONDENT: SMT. KAMLA DEVI & ORS.

DATE OF JUDGMENT:       12/01/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 AIR 1946            1996 SCC  (2) 225  JT 1996 (1)   706        1996 SCALE  (1)730

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard the counsel on both sides. This appeal by special 1eave  arises from  the order of the single Judge of the Madhya  Pradesh  High  Court  at  Jabalpur  Bench  dated January 20, 1993 made in M.A. No.337/91.        The  appellant  laid  the  suit  for  declaration  of prescriptive title  to the  property from  1974 in  his  own right and perfected the title thereto by adverse possession. He also filed an application under Order 39 Rule 1 and 2 CPC seeking temporary injunction restraining the respondent from interdicting his  possession pending  the  suit.  The  trial Court granted  the injunction  but on appeal it was reversed by  the learned single Judge in the impugned order. The High Court has concluded that when there is no dispute as regards the incoporeal  right in litigation, the declaratory suit is only a  right to  the property  but not to the right itself; Order 39 Rules 1 and 2 CPC could be availed of only when the property, the  subject matter thereof, is in danger of being wasted, damaged  or otherwise  being dealt with. In a simple suit for declaratory nature without any consequential relief there cannot  be any dispute as regards the property because the dispute is not about the property but to the entitlement of the  right sought in respect of the property which itself is directly involved in the suit but not in an Interlocutory order. Consequently,  it was  held that the grant of interim injunction is  beyond the  jurisdiction of  the Court  under Order 39  rule 1  and 2.  We are  of the  view that the view expressed by the High Court is not correct in law. In a suit for declaration  of title  simpliciter, the  Court has power under Order  39, Rules  1 and  2 or  even in  Section 151 to grant ad interim injunction pending suit.      Admittedly, the  appellant  is  in  possession  of  the property. In view of his apprehension that there is a threat to his  possession, his only remedy wou1d be whether he will

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be entitled  to the declaration sought for. When he seeks to protect  his   possession,  if   he  is  otherwise  entitled according to  law, necessarily  the Court  has  to  consider whether protection  is to  be given to him pending the suit. Merely because  there is no dispute as regards the corporeal right to  the property,  it does not necessarily follow that he is not entitled to avail the remedy under Order 39, Rules 1 and  2 CPC.  Even otherwise  also, it  is settled law that under Section  151 CPC,  the Court has got inherent power to protect the  rights of  the parties  pending the suit. Under these circumstances,  the view  expressed by  the High Court that application  itself  is  not  maintainable  is  clearly illegal and erroneous. The application under Order 39, Rules 1 and 2 is maintainable.      The matter  is remitted  to the  High Court to consider the case on merits and dispose it of according to law, since the High Court did not consider the case on merits.        Status  quo would  continue till  the disposal of the appeal in the High Court.          The appeal is accordingly allowed. No costs.