Heard Sri Anil Sharma learned counsel for the plaintiff appellant.
This is a second appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 5.3.2010 passed in Civil Appeal No. 1 of 2008 Ratan Singh Vs Gaon Sabha & Ors. whereby the appeal of the plaintiff has been dismissed and the judgment and decree dated 15.12.2007 passed in Original Suit No. 115 of 2002 has been confirmed whereby the injunction sought by the plaintiff has been refused.
Sri Sharma has referred to the judgment of the Trial Court and points out to the findings recorded on Issue no. 1 which was, whether the plaintiff is owner in possession of the land in dispute on the basis of an allotment. He states that the Trial Court has categorically recorded a finding that the plaintiff is in possession although not on the basis of an allotment. According to Sri Sharma even an unauthorised occupant/trespasser cannot be evicted otherwise than by following due process of law and therefore the Trial Court having found the plaintiff to be in possession could not have dismissed the suit of the plaintiff.
He refers to the judgment of the first appellate court for the same contention and states that when the possession of the plaintiff was established over the land in question the first appellate court ought to have decreed the suit of the plaintiff by setting aside the judgment of the Trial Court.
Having considered the submission of Sri Sharma it would be appropriate to refer to the plaint allegation with respect to the cause of action that accrued to the plaintiff for bringing a suit of injunction against the Gaon Sabha. Paragraph 7 of the plaint is quoted here under:-
"यह की वाद का कारण fookfnr घेर वादी को बजरिए आबंटन प्राप्त होने के कारण से आबंटन के पश्चात गाँव सभा द्वारा कबजा दीलाये जाने के उपरांत वादी बतौर घेर fdlh बांध के iz;ksx करते रहने के कारण से izfroknhx.k द्वारा वादी के घेर से वादी को अपनी शक्ती के बल पर वादी को बेदखल करने को कहने के कारण से वादी द्वारा मना करने पर izfroknhx.k द्वारा इंकार vafre fnukad 12.8.2002 मान्य न्यायलय के निर्णयाधिकार क्षेत्र में पैदा है . तथा मान्य न्यायालय को वाद के श्रवण ग्रहण एवं निस्तारण का iw.kZ क्षेत्राधिकार प्राप्त है."
From a reading of the aforesaid paragraph it is quite apparent that the cause of action alleged is that the defendants are saying that they shall evict the plaintiff by force. Neither any incident or details of the persons who had come to evict the plaintiff nor the date or time or even the place has been mentioned in the afore quoted paragraph. It appears that the cause of action has been pleaded but it is shorne of any detail for bringing the suit. In a suit for injunction the cause of action is key to maintain the suit therefore it has to be specifically pleaded in order to establish that the suit is bonafide and it is not pre-emptive particularly when it is against a local body.
A perusal of the written statement filed by the Gaon Sabha indicates that the land in question which is under occupation of the plaintiff is meant for Harijan Abadi and it has not been allotted to the plaintiff. It states that the plaintiff has unauthorisedly taken possession of the land in question and the Gaon Sabha is entitled to evict the plaintiff in accordance with law.
From the aforesaid written statement it is quite apparent that the Gaon Sabha is not evicting the petitioner forcibly and illegally. It is the own case of the Gaon Sabha to take appropriate proceedings in accordance with law.
In so far as the suit for injunction is concerned a finding has been recorded by both the courts below that the possession of the plaintiff is unauthorised, illegal and without any allotment over the land reserved for Harijan Basti. The injunction was sought not against a private individual but against the Gaon Sabha of land which had been reserved for the less privileged.
Under such circumstances grant of an injunction at the instance of the plaintiff by the court would amount to putting a stamp of the court on the illegal possession of the plaintiff. Such illegality cannot be countenanced by the court and therefore both the courts below have rightly rejected the suit filed by the plaintiff which was an attempt by the plaintiff to misuse the process of court.
However, in so far as the submission of Sri Sharma that even a trespasser/unauthorised occupant cannot be evicted otherwise than by due process of law is concerned the same cannot be disputed. Even the Gaon Sabha in its written statement has affirmed the above position of law and therefore when the cause of action for bringing the suit is not clear nor made out as discussed above this proceeding appears to be a misuse of the process of court. Such an injunction at the instance of an unauthorised occupant could not be granted by the court.
Learned counsel for the appellant has referred to a decision of the Supreme Court in the case of Ram Ratan Vs State of U.P. reported in AIR 1977 SC 619. He refers to a sub para of Paragraph 4 of the said judgment. The sub para of Paragraph 4 is quoted here under:-
"It is well settled 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."
In so far as the above position of law is concerned there is no dispute on the same that a true owner has no right to dispossess and forcibly throw out a trespasser if the trespasser has successfully accomplished his possession to the knowledge of the true owner. The law requires that the true owner should dispossess the trespasser by taking recourse to the remedies under law. This is actually what has been pleaded by the Gaon Sabha in their written statement and its stand is in accordance with the decision of the Supreme Court referred to above.
No substantial question of law arises in this second appeal. The findings of the courts below are concurrent hence no interference is required in them. The impugned judgements are in accordance with law and the suit of the plaintiff has been rightly dismissed by both the courts. This appeal has no merits.
The second appeal is accordingly dismissed.
No order is passed as to costs.
Order Date :- 15.12.2010 Pravin