ORDER S.P. Mehrotra, J.
1. The present Second Appeal was filed by Smt. Phool Sakhi Devi (plaintiff-appellant) against the judgment and decree dated March 7, 1981 passed by the learned Civil Judge, Ballia (Lower Appellate Court) whereby he confirmed the Judgment and decree dated 1-6-1974 passed by the learned Additional Munsif, Ballia (Trial Court), is Suit No. 254 of 1970.
2. It appears that the said Smt. Phool Sakhi Devi (plaintiff-appellant) filed a Suit being suit No. 245 of 1970 against Ram Sakal Singh (defendant-respondent No. 1) and Harsh Narain (defendant-respondent No. 2) as defendants Nos. 1 and 2, respectively in the said Suit,
3. It may be mentioned at the outset that the said Smt. Phool Sakhi Devi (plaintiff-appellant) expired during the pendency of the present Second Appeal, and she was substituted by her heirs and legal representatives, namely, Smt. Sushila Srivastava and three others (plaintiffs-respondents Nos. 1/ 1, 1/2, 1/3 and 1/4, respectively).
3. It is further relevant to note that the said Ram Sakal Singh (defendant-respondent No. 1) expired during the pendency of the litigation before the Courts below, and was substituted by Ram Naresh Singh, Ram Chandra Singh, Gopal Singh, Onkar Singh and Musamma Jaddo Devi (defendants-respondents Nos. 1/1, 1/2, 1/3, 1/4 and 1/5, respectively in the present Second Appeal).
5. It is further pertinent to note that the said Harsh Narain (defendant-respondent No. 2 in the present Second Appeal) expired during the pendency of the present Second Appeal, and was deleted from the array of parties by the order of the Court dated 26-10-2004.
6. It may be further noted that the said Ram Naresh Singh (defendant-respondent No. 1/1) expired during the pendency of the present Second Appeal, and his heir and legal representative Smt. Maheshra was substituted as the defendant-respondent No. 1/1/1.
7. Further, Smt. Jaddo Devi (defendant-respondent No. 1 /5) also expired during the pendency of the present Second Appeal and a note was made that her heirs and legal representatives were already on record as the defendants-respondents Nos. 1 /1 /1 /, 1/2, 1/3 and 1/4.
8. For convenience, the said Smt. Phool Sakhi Devi has hereinafter been also referred to as the "plaintiff-appellant" and the said Ram Sakal Singh has hereinafter been also referred to as the "defendant-respondent No. 1".
9. The said Suit was filed by the said Smt. Phool Sakhi Devi as plaintiff for permanent injunction directing the defendants in the said Suit not to interfere with the plaintiffs possession over the disputed property, which was an Ahata, and for restraining the defendants in the said Suit from making any constructions, alteration or other changes in the Suit property.
10. It was, interalia, alleged in the plaint that the Smt. Phool Sakhi Devi (plaintiff-appellant) was the owner of the property marked by digits 1,2,5,6 in the plaint map, and the Suit property, i.e., Ahata, shown by the digits 3,4,5,6, was a part of the said property of the plaintiff-appellant; and that the entire property (land) was acquired by her father-in-law, Ram Iqbal Lal about 50 years back, and a residential house was constructed by him over the portion 1,2,3,4 and the portion 3,4,5,6 was left as Ahata; and that a well and a latrine was constructed in the said Ahata and a palani was also fixed therein; and that some trees were also planted in the said land (Ahata); and that the said Smt. Phool Sakhi Devi (plaintiff-appellant) was in possession of the disputed Ahata since the time of her father-in-law; and that the defendants in the said Suit wanted to take forcible possession of the said land; and that the defendants in the said Suit had no right or titled to the land In Suit; and that on 1-8-1970 the defendants in the said Suit tried to demolish the eastern boundary wall of the Ahata but due to the intervention of the police, the defendants In the said Suit failed in their design.
11. The said Ram Singh (defendant-respondent No. 1) filed Written Statement alleging that he was the owner of the land in Suit and was in possession thereof since 23-12-1949 through a Registered Sale Deed executed by Ram Chander Lal, husband of the said Smt. Phool Sakhi Devi (plaintiff-appellant); and that the said Ram Sakal Singh (defendant-respondent No. 1) had purchased the said Ahata for a valuable sale consideration of Rs. 200/-, and that there existed a door in the eastern boundary wall of the said Ahata; and that the palani, latrine and well were constructed in the disputed Ahata by the defendant-respondent No. 1; and that the said Ram Sakal Singh (defendant-respondent No. l) had also planted trees in the said Ahata, and he used to canyon the business of wood in the said Ahata; and that on a part of the said Ahata, the defendant -respondent No. 1 used to grow vegetables; and that the plaintiff-appellant had never been in possession within limitation; and that the Suit was barred by Section 34 of the Specific Relief Act.
12. The parties led oral and documentary evidence in the said Suit in support of their respective cases.
13. On consideration of the oral and documentary evidence led in the Suit including the sale deed dated 23-12-1949 (Exhibit-A1) executed by Ram Chander Lal (husband of the plaintiff-appellant) in favour of Ram Sakal Singh (defendant-respondent No. 1), copy of the gift deed dated 24-12-1949 (Exhibit-A2), statement of the said Ram Chander Lal in Suit No. 271 of 1954, and the Report of Vakil Commissioner and map 9C2 and 10C2, the Trail Court in its judgment and order dated 1-6-1974 recorded various findings of fact.
14. It was, interalia, held by the Trial Court that Ram Sakal Singh (defendant-respondent No. 1) was the owner of the property in Suit (Ahata) by virtue of the sale deed dated 23-12-1949. It was, interalia, further held that the well, planani and latrine were constructed by the defendant-respondent No. 1 (Ram Sakal Singh) after the execution of the said sale deed, and the said Ahata was being used by the said Ram Sakal Singh (defendant-respondent No. l) since long. It was, Interalia, further held that the door in eastern wall of the Ahata was closed by the said Smt. Phool Sakhi Devi (plaintiff-appellant), and the defendant-respondent No. 1 (Ram Sakal Singh) was dispossessed from the Ahata In Suit before the institution of the Suit; and that the plaintiff-appellant (Smt. Phool Sakhi Devi) was in possession of the said Ahata Since June 1970, i.e., about 2 months before the institution of the Suit.
15. It was, interalia, further held that the defendant-respondent No. l (Ram Sakal Singh) was in possession of the Ahata since the execution of the sale deed dated 23-12-1949, and he continued to be in possession thereof till June, 1970.
16. It was, interalia, further held that the dispossession of the defendant-respondent No. 1 (Ram Sakal Singh) from the property In Suit (Ahata) did not disentitle him of the ownership of the said property. It was, interalia, further held that the plaintiff-appellant (Smt. Phool Sakhi Devi) could not be regarded as the owner of the property in Suit (Ahata) on the basis of her possession over the said property for such a short period as two months.
17. It was, interalia, further held that the plaintiff-appellant (Smt. Phool Sakhi Devi) was not the owner of the property in Suit (Ahata), and that the evidence on record proved the ownership of the defendant-respondent No. 1 (Ram Sakal Singh) over the property in Suit (Ahata).
18. As regards the issue as to whether the Suit was barred by limitation, the Trial Court held that the Suit was not barred by limitation.
19. As regards the issue as to whether the Suit was barred by Section 34 of the Specific Relief Act; the Trial Court held that the Suit was not so barred.
20. In view of the aforesaid findings that the plaintiff-appellant (Smt. Phool Sakhi Devi) had failed to prove her ownership of the property in Suit (Ahata) while the defendant-respondent no, 1 (Ram Sakal Singh) had proved his ownership of the property in Suit (Ahata), the Trial Court dismissed the said Suit filed by the said Smt. Phool Sakhi Devi (plaintiff-appellant).
21. Thereupon the plaintiff-appellant (Smt. Phool Sakhi Devi) filed an Appeal being Civil Appeal No. 45 of 1974 against the judgment and decree dated 1-6-1974 passed by the Trial Court.
22. The Lower Appellate Court by the judgment and order dated March 7, 1981 dismissed the said Appeal fined by the said Smt. Phool Sakhi Devi (plaintiff-appellant) and confirmed the said judgment and decree dated 1-6-1974 passed by the Trial Court.
23. The Lower Appellate Court, interalia, held that there was ample evidence to hold that the Ahata in dispute was transferred by the said Ram Chander Lal (husband of the plaintiff-appellant) in favour of the defendant-respondent No. 1 (Ram Sakal Singh) on 23-12-1949.
24. It was, interalia, further held that the Ahata in question did not form part of the property gifted to the plaintiff-appellant (Smt. Phool Sakhi Devi) by the said Ram Chander Lal by the said gift deed dated 24-12-1949. It was, interalia, further held that the Trail Court had rightly held that the plaintiff-appellant (Smt. Phool Sakhi Devi) was not the owner of the disputed property (Ahata).
25. It was, interalia, further held by the Lower Appellate Court that the possession of the Ahata was transferred to the defendant-respondent No. 1 (Ram Sakal Singh) by the said sale deed dated 23-12-1949. It was, interaliam, further held that the long possession of the plaintiff-appellant (Smt. Phool Devi) was not proved over the property in Suit (Ahata), and that her possession was proved only since the Police put her in possession which occurred only a few days before filing of the Suit.
26. It was, interalia, further held that the finding recorded by the Trial Court on the question of possession needed no interference.
27. It was, interalia, further held that no doubt the plaintiff-appellant (Smt. Phool Sakhi Devi) was in possession at the time of filing of the said Suit but her possession was not legal, and, therefore, she was not entitled for equitable relief of injunction, and the Trial Court rightly dismissed her claim.
28. Thereafter, the plaintiff-appellant (Smt. Phool Sakhi Devi) filed the present Second Appeal before this Court.
29. By the order dated 8-7-1981, the present Second Appeal was admitted on the following substantial question of law:
Whether in the proved circumstances of the case, the plaintiff was entitled to the equitable relief of injunction or not?
30. I have heard Shri Narain Mishra, learned Counsel for the plaintiff-appellant and Shri V. Singh, learned Counsel for the defendants-respondents Nos. 1/1/1 to 1/ 4, and perused the record.
31. It is submitted by Shri Satya Narain Mishra, learned Counsel for the plaintiff-appellant that on the proved facts and circumstances of the case, particularly in view of the fact that the plaintiff-appellant (Smt. Phool Sakhi Devi) was in possession of the land in dispute (Ahata) on the date of filing of the Suit, she was entitled to relief of permanent injunction. It is submitted that the Courts below acted illegally in refusing to grant the said relief to Smt. Phool Sakhi Devi (plaintiff-appellant).
32. In reply, Shri v. Singh, learned Counsel for the defendants-respondents Nos. 1/ 1/1 to 1/4 submits that the defendant-respondent No. 1 (Ram Sakal Singh) was held to be the owner of the land in dispute (Ahata), and in view of the better title of the defendant-respondent No. 1 (Ram Sakal Singh), no Injunction could be granted in favour of the said Smt. phool Sakhi Devi (plaintiff-appellant).
33. Shri v. Singh has placed reliance on a decision of the Apex Court in Hanumanthappa v. Muninarayanappa 1996(3), AWC 1850 (SC).
34. In rejoinder, Shri Satya Narain Mishra, learned Counsel for the plaintiff-appellant has reiterated the submissions made by him earlier.
35. I have considered the submission made by the learned Counsel for the parties.
36. In view of the findings recorded by the Courts below on a consideration of the oral and documentary evidence on record, as noted above, the following facts are established on record:
(1) The plaintiff-appellant (Smt. Phool Sakhi Devi) was not the owner of the land in dispute (Ahata) (2) The defendant-respondent No. 1 (Ram Sakal Singh) was the owner of the land in dispute (Ahata) by virtue of the sale deed dated 23-12-1949.
(3) The defendant-respondent No. 1 (Ram Sakal Singh) was in continuous possession of the land in dispute (Ahata) since the execution of the said sale deed dated 23-12-1949, and he made improvements on the said land in dispute.
(4) It was only a short time before the filing of the Suit that the plaintiff-appellant (Smt. Phool Sakhi Devi) took possession of the land in dispute (Ahata) by closing the door in the eastern boundary wall of the land in dispute (Ahata).
37. In view of the aforesaid facts established on record, let us now consider the substantial question of law formulated in the present case, as quoted above. The question is as to whether in view of the aforesaid facts established on record, the plaintiff-appellant (Smt. Phool Sakhi Devi) was entitled to equitable relief of injunction or riot.
38. As noted above, the said Smt. Phool Sakhi Devi (plaintiff-appellant) has been found to be not the owner of the land in dispute (Ahata). The plaintiff-appellant (Smt. Phool Sakhi Devi) has failed to establish any right, title or interest in the land in dispute (Ahata).
39. In the circumstances, I am of the opinion that the plaintiff-appellant (Smt. Phool Sakhi Devi) was not entitled to relief of permanent injunction as claimed in the Suit filed by her.
40. As regards the claim for permanent injunction on the basis of possession of the plaintiff-appellant (Smt. Phool Sakhi Devi) over the land in dispute, it is true that on the date of filing of the Suit, the plaintiff-appellant (Smt. Phool Sakhi Devi) was in possession of the land in dispute (Ahata). She got possession of the land indispute (Ahata) only a short time before the filing of the Suit by closing the door in the eastern boundary wall of the land in dispute (Ahata). It is further established on record that the said Ram Sakal Singh (defendant-respondent No. 1) was the owner of the land in dispute (Ahata).
41. It is settled that a person in possession of a property is not entitled to injunction against true owner of the property.
42. In the present case, the defendant-respondent No. 1 (Ram Sakal Singh) was been found to be the true owner of the land in dispute (Ahata). In the circumstances, the plaintiff-appellant (Smt. Phool Sakhi Devi), who failed to establish any right, title or interest in the land in dispute (Ahata), was not entitled to any injunction against the said Ram Sakal Singh (defendant-respondent No. 1) on the basis of her possession over the land in dispute (Ahata).
43. There is one more aspect of the matter, Relief of injunction is an equitable relief.
44. There is a well known maxim of equity, namely, one who comes to equity must come with clean hands,
45. Section 41(i) of the Specific Relief Act, 1963 also lays down as under:
41. Injunction when refused.-An injunction cannot be granted-
(a) to (h)...
(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the Court;
(1)...
46. In the present case, it has been established on record that a short time before the filing of the Suit, the plaintiff-appellant (Smt. Phool Sakhi Devi) obtained possession of the land in dispute (Ahata) by closing the door in the eastern boundary wall of the land in dispute (Ahata). In the circumstances, the conduct of the plaintiff-appellant disentitles her form seeking equitable relief of injunction in any view of the matter.
47. Before parting with the case, reference may be made to certain judicial decisions:
48. In Nair Service Society Ltd. v. K.C. Alexander and Ors. , their Lordships of the Supreme Court held as follows (at pages 1173 and 1174 of the said AIR):
17. In our judgment this involves an incorrect approach to our problem. To express our meaning we may begin by reading 1907 AC 73 to discover if the principle that possession is good against all but the true owner has in any was been departed from. 1907 AC 73 reaffirmed the principle by stating quite clearly:
It cannot be disputed that a person in possession of land in the assumed character of power and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title....
(Emphasis supplied)
49. In M. Kallappa Setty v. M.V. Lakshminarayana Rao , their Lordships of the Supreme Court opined as follows (paragraph 5 of the said A.I.R.):
5. So far as the question of possession is concerned, as mentioned earlier, both the trial court and the first appellate court have accepted the plaintiffs case that he was in possession of the suit site ever since he purchased the same in 1947. This is essentially a finding of fact. _That finding is based on evidence. The High Court, in our opinion, erred in coming to the conclusion that the possession of the plaintiff after the sale deed in his favour is not a relevent circumstance. We are of opinion that it is an extremely important circumstance. The plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property. Once it is accepted, as the trial court and first appellate court have done, that the plaintiff was in possession of the property ever since 1947 then his possession has to be protected as against interference by someone who is not proved to have a better title than himself to the suit property. On the findings . arrived at by the fact finding courts as regards possession, the plaintiff was entitled to the second relief asked for by him even if he had failed to prove his title satisfactorily. Therefore, in our opinion, the High Court was not right in interfering with the Judgment of the trial court as affirmed by the first appellate court regarding relief No. 2.
(Emphasis supplied)
50. In Mahadeo Savlaram Sheika and Ors. v. The Puna Municipal Corporation and Ors. (paragraph 9 of the said ACJ):
9. It is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession. It is true that the appellants placed reliance in their plaint on resolutions passed by the Municipality on 11 -11 -72 and 29-11 -72. A reading of those resolution would prima facie show that possession would be taken where the acquisition proceedings have become final and land acquisition proceedings would not be pursued where award has not been made as on the date of the resolutions. In this case, since the acquisition proceedings have become final, then necessarily possession has to taken by the Corporation for the public purpose for which the acquisition was made. In that context the question arises whether the appellants can seek reliance on two resolutions. They furnish no prima facie right or title to the appellants to have perpetual injunction restraining the Corporation from taking possession of the building the orders of eviction were passed by due process of law and had become final. Thereafter, no right was created in favour of the appellants to remain in possession. Their possession is unlawful and that therefore, they cannot seek any injunction against the rightful owner for evicting them. There is thus neither balance of convenience nor irreparable injury would be caused to the appellants.
(Emphasis supplied)
51. In Hanumanthappa v. Muninarayanappa case 1996 (III) AWC 1850 (supra) : 1997 (88) RD 41 (SC), relied upon by Shri V. Singh, learned Counsel for the defendants-respondents Nos. 1/1/1 to 1/4, their Lordships of the Supreme Court laid down as follows (paragraph 5 of the said AWC):
5. 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, 1988. 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 eh 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 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 after the interim injunction was granted by the trial court. It is factually 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 XXXIX, Rules 1 and 2 of C.P.C.
(Emphasis supplied)
52. In Tamil Nadu Housing Board v. Viswam (Dead) (by legal representatives) , their Lordships of the Supreme Court held as follows (paragraph 12 of the said ACJ):
12. Thus considered, the title of the land in Survey No. 140/4 having been vested in the appellant, to whomsoever it belonged earlier, it stood divested from him/them and no one can lay and claim to the said acquired land once over and claim injunction on that basis. The injunction, therefore, cannot be issued against the true owner namely. The Housing Board in whom the land ultimately stood vested and then stood transferred to the Municipal Corporation. A trespasser cannot claim injunction against the owner nor can the court issue the same.
(Emphasis supplied)
53. In K.V. Narayan v. S. Sharana Gowda and Anr. , it has been laid down as follows (paragraph 20 of the said A.I.R.):
20...Therefore the said discussion by the learned authors Shri Basu and Shri Nelson makes it absolutely clear that a trespasser in possession, is not entitled to a temporary injunction as against a true owner, The principle underlying the said conclusion is that the relief of injunction being a relief in equity, the Court cannot aid a person who himself is quilty of doing a wrongful thing.
54. In view of the above discussion; I am of the opinion that the substantial question of law formulated in the present Second Appeal, as quoted above, is to be answered as follows:
In the proved circumstances of the case, the plaintiff was not entitled to the equitable relief of injunction.
55. The substantial question of law is answered accordingly.
56. The Second appeal, thus, lacks merit, and is liable to be dismissed with cost.
57. The Second Appeal is accordingly dismissed with cost.