Heard Sri Vishnu Sahai, learned counsel for the petitioners and Sri Manish Goyal assisted by Sri Shiv Sagar Singh, learned counsel for the respondents.
The plaintiffs/petitioners filed Suit No. 80 of 2009 for cancellation of sale deed along with temporary injunction application to restrain the respondents from interfering in the possession of the suit property. The Court of first instance by order dated 11.9.2009 directed the parties to maintain status quo in respect of Plot No. 243 measuring 1-10-0 situated in Village Garh Bangad, Tehsil Garh Mukteshwar, District Ghaziabad (now Hapur). Aggrieved by the aforesaid order the respondents filed Misc. Appeal No. 42 of 2009. The Appellate Court allowed the appeal vide order dated 1.5.2013 and set aside the order of the Court of first instance. The order dated 1.5.2013 is being assailed.
The plaintiff/petitioners had earlier filed Suit No. 147 of 2002 for permanent mandatory injunction for the same property and the suit is still pending. The application for temporary injunction was rejected as the petitioners failed to prima facie establish his title and possession over the suit property.
The submission advanced by learned counsel for the petitioners is that the lower appellate court has not appreciated the facts properly though the petitioners fully proved their possession in respect of the suit property over which the petitioners are having possession for the past 20 years and in case, the petitioners are dispossessed they will suffer irreparable loss and injury.
In rebuttal, it is submitted that the petitioners have neither title nor possession of the suit property. The revenue records pertaining to record of rights (Khatauni) records the ownership of Dhanpat Rai as proprietor and the name of one Kalicharan is recorded under Form P-10-A in the Khatauni pertaining to Fasli 1398, 1399, 1402, 1403, 1404 and 1410. Whereas Form P-10-A was deleted by notification no. 4674/1-F-1378-F/16 dated 3.7.1965. The respondents are bona fide purchaser of the property by a valid sale deed from its true owners.
Rival submissions fall for consideration In civil cases, pleadings are extremely important for ascertaining the title and possession of the property in question.
Possession is important when there are no title documents and other relevant records before the Court, but, once the documents and records of title come before the Court, it is the title which has to be looked at first and due weightage be given to it. Possession cannot be considered in vacuum.
A title suit for possession has two parts - first, adjudication of title, and second, adjudication of possession. If the title dispute is removed and the title is established in one or the other, then, in effect, it becomes a suit for ejectment where the defendant must plead and prove why he must not be ejected.
The person averring a right to continue in possession shall, as far as possible, give a detailed particularized specific pleading along with documents to support his claim and details of subsequent conduct which establish his possession.
The Supreme Court in the case of Maria Margarida Sequeira Fernandes vs. Erasmo Jack De Sequeria (Dead) through Lrs. (2012) (5) SCC 370 enumerated the ingredients that needs to be pleaded by one who claims possession, para 70 is as follows:-
"70. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive.
(a) who is or are the owner or owners of the property;
(b) title of the property;
(c) who is in possession of the title documents (d) identity of the claimant or claimants to possession;
(e) the date of entry into possession;
(f) how he came into possession - whether he purchased the property or inherited or got the same in gift or by any other method;
(g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount;
(h) If taken on rent, license fee or lease - then insist on rent deed, license deed or lease deed; (i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.;
(j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and
(k) basis of his claim that not to deliver possession but continue in possession."
Grant or refusal of an injunction in a civil suit is the most important stage in the civil trial. Due care, caution, diligence and attention must be bestowed by the judicial officers and judges while granting or refusing injunction. In most cases, the fate of the case is decided by grant or refusal of an injunction. Experience has shown that once an injunction is granted, getting it vacated would become a nightmare for the defendant.
The Supreme Court in the case of Rame Gowda (D) By Lrs vs M. Varadappa Naidu (D) By Lrs. & Anr (2004) 1 SCC 769 quoted Salmond's Jurisprudence on possession:-
"5. Salmond states in Jurisprudence (Twelfth Edition), "few relationships are as vital to man as that of possession, and we may expect any system of law, however primitive, to provide rules for its protection.......... Law must provide for the safeguarding of possession. Human nature being what it is, men are tempted to prefer their own selfish and immediate interests to the wide and long-term interests of society in general. But since an attack on a man's possession is an attack on something which may be essential to him, it becomes almost tantamount to an assault on the man himself; and the possessor may well be stirred to defend himself with force. The result is violence, chaos and disorder." (at pp. 265, 266)."
The court quoted with approval the law, as stated by a Full Bench of Allahabad High Court in Yar Mohammad Vs. Lakshmi Das (AIR 1959 All. 1,4), "Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a court. No person can be allowed to become a judge in his own cause."
In the case of Nair Service Society Ltd. Vs. K.C. Alexander and Ors. (1968) 3 SCR 163, this Court held that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. When the facts disclose no title in either party, possession alone decides. The court quoted Loft's maxim 'Possessio contra omnes valet praeter eur cui ius sit possessionis (He that hath possession hath right against all but him that hath the very right)' and said, "A defendant in such a case must show in himself or his predecessor a valid legal title, or probably a possession prior to the plaintiff's and thus be able to raise a presumption prior in time"
The court laid down the following tests which may be adopted as a working rule for determining the attributes of 'settled possession' :
"i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;
ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;
iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and
iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession."
Applying the law on the facts of the case at hand, the petitioners have not disputed that they had earlier filed suit no. 147 of 2002 in respect of the suit property wherein application for temporary injunction was rejected vide order dated 14.9.2007 by the trial Court as well as the appellate court, wherein finding was recorded on the basis of commissioner report, as well as, report of the revenue inspector that Plot No. 243 is a non ZA land and the petitioners is not in possession of the land, the boundary constructed thereon as well as the tin shed was not constructed by the petitioners and the Court after perusing the Khatauni entries recorded a finding that the name of the petitioners' ancestor Kali Charan is recorded under 10-A and the property belongs to proprietor Dhanpat Rai. The plaintiff/petitioners have nowhere disclosed in the plaint nor any documentary evidence was filed to indicate as to when Kali Charan died and after his death any effort was made by the petitioners to get their name incorporated/mutated in the Khatauni/revenue record.
After the death of Kali Charan, the name of the petitioners was not recorded in any of the revenue records and the copies of the field register (khasra) recording possession of the suit property has not been filed by the petitioners, it has been contended on behalf of the petitioners that the respondents have also failed to prove their possession, interest of justice requires that status quo as on date be maintained in respect of possession of suit property during the pendency of the suit.
The contention of the petitioners cannot be accepted as the petitioners have to stand on his own legs in order to establish prima facie title and possession of the suit property. The appellate Court has rightly recorded a finding that the petitioners neither have title nor they are in possession of the suit property. Further the petitioners have not approached the Court with clean hand, petitioners have suppressed the findings recorded by the court in the earlier suit regarding possession. Once the petitioners were not in possession of the suit property, the plaint falls short in detailing, as to when, and how, they regained possession of the suit property.
For the reasons stated herein above, I find no illegality or jurisdictional error in the impugned order passed by the learned lower appellate court.
The writ petition is devoid of merit and is, accordingly, dismissed. Interim order, if any, stands vacated.
No order as to cost.
Order Date :- 10.7.2014 S.Prakash