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CASE NO.: Appeal (civil)  5353 of 2006

PETITIONER: Ramji Rai & Another

RESPONDENT: Jagdish Mallah (Dead) through L.Rs.& Another

DATE OF JUDGMENT: 04/12/2006

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP (C)No.19322 of 2004)

KAPADIA, J.

       Leave granted.         Plaintiff (appellant no.1 herein) instituted Civil Suit  No.202/77 for permanent injunction in the court of Additional  Munsif Magistrate-VII, Ballia, against defendants-respondents.   In the 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.   The 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.

       The 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;  that 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.

       After framing the issues the trial court decreed the suit.   The trial court held that the appellants were the owners and

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they were in possession of the disputed land.

       Aggrieved 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.

       By 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.   The 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.

       Aggrieved 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.

       As stated above, the lower appellate court vide judgment  dated 21.9.1981 dismissed the suit filed by the appellants.    While dismissing the suit the lower appellate court held as  follows: "On 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)

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       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.

       On the 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 \026 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.   This has been done but the declaration that the appellants are  not the owners, was not necessary.   

       Subject to above clarification, the appeal stands  dismissed with no order as to costs.