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PETITIONER: SRI HANUMANTHAPPA

       Vs.

RESPONDENT: SRI MUNINARAYANAPPA

DATE OF JUDGMENT:       07/10/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard learned counsel on both sides.      No doubt  this  appeal  arises  from  an  interlocutory application,  since   it  has  an  effect  on  the  judicial proceedings that  have become  final; we  think that at this stage, it would be appropriate to interfere with this matter and correct it.      This appeal  by special leave arises from the order and judgment of  the High  Court of Karnataka made on 20.10.1995 in  C.R.P.   No.420/95.  Admittedly,   the   appellant   had instituted the suit for partition and separate possession of the suit  property  in  1966  in  Suit  No.88/66  which  was dismissed on  February 20, 1988. On appeal, after the remand by  the   High  Court,   Appeal  No.98/88  culminated  in  a compromise. A  compromise decree  was passed on February 29, 1990 (sic.).  Thereunder the  appellant was  given from  the total extent of 3 acres 39 guntas of lands towards his share and decree  in that  behalf was  passed. under the Panchnama drawn by  the Tehsildar  on July  22, 1993 the appellant was put in  possession of 39 guntas of land as per the certified copies of  the Panchnama  filed in  the trial  Court as Item No.17 of  the documents  filed  in  the  present  suit.  The district Court  also in  the present  proceedings recorded a finding in paragraph 14 of its order that the appellant. was put in possession of 39 guntas of land.      The question,  therefore arises:  whether an injunction can be  issued against  the appellant?  It is not in dispute that pending  that partition  suit No.88/66,  the respondent had purchased the land belonging to his vendors including 39 guntas of land under registered sale deed dated February 24. l986. Undoubtedly  the respondent  was not  a party  to  the compromise  decree   dated  February   29,  1990.  Since  he purchased the property pending the suit for partition, a compromise  decree having  been executed by the parties in which the  right of the appellant to the extent of 39 guntas was  crystallized   and  he  was  duly  put  in  possession, necessarily, he  was in lawful possession of the property as an owner.  The question  is: whether  an injunction  can  be issued  against  the  lawful  owner?  It  is  settled  legal

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position that  no injunction  can be issued against a lawful owner of  the property.  The High  Court  proceeded  on  the premise that  the appellant  was put  in possession  of  the property after  the interim  injunction was  granted by  the trial Court.  It is factually incorrect since the injunction was granted  by the  trial Court  only on January 5, 1994 by which date  he had  already been  put in  possession by  the Tehsildar under  the Panchnama  dated July  22, 1993.  Under these circumstances,  the High  Court also  was in  error in coming to  the conclusion  that the  appellant cannot  be in lawful possession  since he had come in possession after the injunction was issued under Order 39 Rules 1 and 2 of CPC.      The appeal  is accordingly  allowed. The  orders of the courts below  stand set  aside.  But  in  the  circumstances without costs.      It  is   made  clear  that  since  the  respondent  has purchased the property pending the suit, it would be open to him to proceed against his vendor in accordance with law.