Municipal Corpn. it was held, after referring to Woodroffe:
Law Relating to Injunctions; Goyle, L.C.: Law of Injunctions;
Bean, David: Injunctions; Joyce: Injunctions and other leading
articles on the subject that the appellant who was trespasser
in possession could not seek injunction against the true
owner. In that context this Court quoted Shiv Kumar Chadha
v. Municipal Corpn. of Delhi wherein it was observed that
injunction is discretionary and that: (SCC p.175, para 31)
"[J]udicial proceedings cannot be used to protect or to
perpetuate a wrong committed by a person who approaches
the court."
26. Reference was also made to Dalpat Kumar v.
Prahlad Singh in regard to the meaning of the words "prima
facie case" and "balance of convenience" and observed in
Mahadeo case that: (SCC p.39, para 9)
"9. It is settled law that no injunction could be
granted against the true owner at the instance of persons in unlawful possession."
(See Premji Ratansey Shah v. Union of India [(1994)5 SCC 547),
In the light of the aforesaid decisions of the Apex Court, I do not
think that the plaintiffs in this case are entitled to a decree of
injunction against the first defendant who is the real owner of
the property.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE P.B.SURESH KUMAR
THURSDAY, THE 13TH DAY OF AUGUST 2015
RSA.No. 592 of 2015 ()
MOHINI NARAYANA HEGDE Vs B.THIMMAPPA, THYAMPU, ,
Citation;AIR 2016 (NOC)368 kerala
The plaintiffs in a suit for declaration of title and
injunction is the appellant in this Second Appeal.
2. The facts relevant for decision of the Second
Appeal are the following:
Plaint A schedule property belonged to deceased
Narayana Hegde, the husband of the first plaintiff and the
father of plaintiffs 2 to 5. On the death of Narayana Hegde,
plaint A schedule property devolved on the plaintiffs. Plaint B
schedule property is situated on the south and east of plaint A
schedule property. According to the plaintiffs, Narayana Hegde
and the first plaintiff trespassed into plaint B schedule property
during December, 1975 and reduced the same to their
possession by constructing a common compound wall enclosing
both plaint A and B schedule properties. The case of the
plaintiffs is that they have perfected title to plaint B schedule
property by adverse possession and limitation. It is alleged by
the plaintiffs in the plaint that deceased Narayana Hegde and
the first plaintiff had constructed a building also in plaint B
schedule property. According to the plaintiffs, the first
defendant attempted to demolish the compound wall of the
plaint B schedule property on 23.6.2010 with a view to trespass
upon the said property and the suit was necessitated on
account of the said reason. The relief claimed in the suit was a
declaration that the plaintiffs have perfected title to plaint B
schedule property by adverse possession and limitation. A
decree of permanent prohibitory injunction restraining the
defendants from trespassing into plaint B schedule property
was also claimed as a consequential relief.
3. The first defendant resisted the suit by filing a
written statement. According to the first defendant, plaint B
schedule property belonged to one Lakshminarayana Naik; that
Lakshminarayana Naik was in possession and enjoyment of the
said property as its absolute owner until his death and that on
the death of Lakshminarayana Naik, the said property devolved
on his wife Lalithamma and his children. It is also their case
that on the death of Lalithamma, her rights also devolved on
the children of Lakshminarayana Naik and that they sold the
property to the first defendant during 2009 by virtue of Exts.B1
and B2 sale deeds. According to the first defendant, plaintiffs
and Narayana Hegde were never in possession of plaint B
schedule property. As regards the building claimed to have
been constructed by Narayana Hegde and the first plaintiff in
plaint B schedule property, it was contended by the first
defendant that the said building was constructed by the first
plaintiff with the permission of Lalithamma to enable her to
earn a livelihood by leasing out the building. As regards the
construction of the compound wall, it was contended by the
first defendant that the same was constructed by the earliest
common owner of plaint A and B schedule properties.
4. The second defendant who is one of the legal
representatives of Lalithamma also resisted the suit by filing a
separate written statement raising contentions identical to the
contentions raised by the first defendant. He also asserted that
by virtue of Exts.B1 and B2 sale deeds, the first defendant
became the absolute owner in possession of plaint B schedule
property. The second defendant also endorsed the stand of the
first defendant that the building in the property was
constructed by the first plaintiff with the permission of
Lalithamma.
5. The trial court found that the plaintiffs have been
in possession of plaint B schedule property for more than
twelve years openly, continuously, uninterruptedly and as of
right with the hostile animus against the true owners and
consequently, decreed the suit declaring that the plaintiffs
have perfected title to plaint B schedule property by adverse
possession and limitation. A decree of permanent prohibitory
injunction restraining the defendants from trespassing into
plaint B schedule property or interfering with or disturbing the
peaceful possession, user and enjoyment of plaint B schedule
property was also granted to the plaintiffs as a consequential
relief.
6. The defendants have challenged the decision of
the trial court in two separate appeals. The appellate court,
relying on the decision of the Apex Court in Gurudwara Sahib v.
Gram Panchayat Village Sirthala and Another [(2014) 1
SCC 669], held that a suit for declaration of title by adverse
possession and limitation is not maintainable. The appellate
court also held that a prohibitory injunction cannot be issued
against the first defendant who is the owner of the property. In
the light of the said findings, the appellate court allowed the
appeals and dismissed the suit. The plaintiffs are aggrieved by
the said decision of the appellate court.
7. Heard the learned Senior Counsel for the
appellants and the learned counsel for the first respondent.
8. The learned Senior Counsel for the appellants
contended that in view of the provision contained in Section 34
of the Specific Relief Act, it cannot be said that a suit for
declaration of title by adverse possession and limitation is not
maintainable. He relied on the decision of the Apex Court in
S.Jeevantham v. The State through Inspector of Police,
Tamil Nadu [AIR 2004 SC 4608] and the decisions in Badri
Chaudhuri v. Harbans Jha (AIR 1919 Patna 447) and Shiro
Kumari Debi v. Govind Shaw Tanti (ILR 1877 Vol.II Calcutta
418) in support of the said contention. According to the
learned Senior Counsel, in the light of the provision contained in
Section 27 of the Limitation Act, if it is found that the suit for
possession based on title is barred, the person in possession of
the property becomes its owner. The learned Senior Counsel
relied on the decisions of the Privy Council in Perry v. Clissod
and others (1907 AC 73), Ramanuj v. Ramkrishna (AIR
1922 PC 184), Hem Chand v. Pearey Lal (AIR 1942 PC 64)
and the decision of the Bombay High Court in Fakirappa
Melemani v. Ningappa Matti (AIR 1943 Bombay 265) in
support of the said contention. As regards the view taken by
the Apex Court in Gurudwara Sahib v. Gram Panchayat
Village Sirthala (supra) that a suit for declaration of title by
adverse possession and limitation is not maintainable, the
learned Senior Counsel for the appellants contended that the
said decision of the Apex Court is a judgment rendered per
incuriam. The learned Senior Counsel further contended that
at any rate, in so far as the plaintiffs have made out a case of
possession, the appellate court ought to have sustained the
decree of prohibitory injunction granted by the trial court.
9. Per contra, the learned counsel for the first
respondent contended that in the light of the decision of the
Apex Court in Gurudwara Sahib v. Gram Panchayat Village
Sirthala (supra), the plaintiffs are not entitled to the
declaration sought in the suit. According to the learned
counsel, since the case of the plaintiffs is that they are
trespassers to the property, they are not entitled to the decree
of injunction against the first defendant who is the true owner
of the property.
10. The questions fall for consideration, in the
circumstances, are (i) whether a suit for declaration of title
over a property by adverse possession and limitation is
maintainable and (ii) whether a trespasser is entitled to a
decree of injunction against the true owner of the property.
11. Section 34 of the Specific Relief Act confers
power on the court to grant declaratory reliefs. Section 34
provides that any person entitled to any legal character, or to
any right as to any property, may Institute a suit against any
person denying, or interested to deny, his title to such
character or right, and the court may in its discretion make
therein a declaration that he is so entitled. There is no law
which provides that when a person possesses a property
adverse to the interest of the real owner, he becomes the
owner of the property. On the other hand, when it is said that
the person in adverse possession has perfected title, it only
means that since the person who had the right to possession
has allowed his right to be extinguished, the person who is in
adverse possession will be entitled to hold the property as its
absolute owner. As such, a suit for declaration of title by
adverse possession can only be treated as a suit for declaration
of a legal character. The question is as to whether a declaration
of such a legal character can be sought. Article 65 of the
schedule to the Limitation Act deals with the period of limitation
for suits for possession of immovable property or any interest
therein based on title. As per the said Article, the period of
limitation prescribed for suits of the said nature is twelve years
from the date when the possession of the defendant becomes
adverse to the plaintiff. In other words, if the possession of the
defendant does not become adverse to the plaintiff, there is no
period of limitation for a suit for possession based on title.
Article 65 does not confer any right on the defendant over the
property. On the other hand, the said Article provides for a
defence to persons in possession of immovable property of
others. Section 27 of the Limitation Act provides that at the
determination of the period prescribed to any person for
instituting a suit for possession of any property, his right to
such property shall be extinguished. Section 27 would operate
only when a plea of adverse possession is established by the
defendant in an action for possession based on title. In other
words, the extinguishment of the right of the real owner is
dependent on the establishment of adverse possession by the
person in possession and the question of establishment of
adverse possession arises only when a suit is filed for
possession based on title. It is therefore, evident that the plea
of adverse possession is only a shield and not a sword at all. If
that be so, I have no hesitation to hold that a suit for
declaration of title over a property by adverse possession and
limitation is not maintainable. I draw support to this view from
the decision of the Apex Court in Gurudwara Sahib v. Gram
Panchayat Village Sirthala (supra). Paragraph 7 of the said
judgment reads thus:
"In the Second Appeal, the relief of ownership by adverse
possession is again denied holding that such a suit is not
maintainable. There cannot be any quarrel to this extent the
judgments of the courts below are correct and without any
blemish. Even if the plaintiff is found to be in adverse possession,
it cannot seek a declaration to the effect that such adverse
possession has matured into ownership. Only if proceedings filed
against the appellant and appellant is arrayed as defendant that it
can use this adverse possession as a shield/defence."
I also draw support to the said view from the decision of the
Delhi High Court in Prem Nath Wadhawan v. Inder Rai
Wadhawan (1993(3) Punjab Law Reporter (Delhi Section) 70),
the decision of the Gouhati High Court in M/s.Brahmaputra
Automobiles Pvt. Ltd. v. State of Assam [AIR 2014 (NOC)
73] and decisions of the Punjab and Haryana High Court in
Bhim Singh v. Zile Singh [AIR 2006 Punjab and Haryana 195]
and Joginder Kaur v. Gurbachan Kaur [(2013) 1 CCC 522
(P&H)].
12. True, in Perry v. Clissod and others (supra),
Ramanuj v. Ramkrishna (supra), Hem Chand v. Pearey Lal
(supra) and Fakirappa Melemani v. Ningappa Matti
(supra), it was held that since the provisions of the Limitation
Act extinguishes the right of the real owner on determination of
the period of limitation, in the absence of any provision to
indicate as to the person in whom that right is to vest, it is
reasonable to hold that the title of the property would vest in
the person in possession of the property. The question whether
a suit for declaration of title by adverse possession and
limitation is maintainable or not did not arise for consideration
in the said cases. As far as the decision in Shiro Kumari Debi
v. Govind Shaw Tanti (supra) is concerned, I am unable to
agree with the view taken in the said decision, for, it only
reiterates a similar view taken by the said court in an earlier
case. Badri Chaudhuri v. Harbans Jha (supra) is a case
where the owner of a property after executing a fraudulent
transfer continued to be in possession of the property for more
than twelve years and it was in the said context, the court held
that the plaintiff being in possession for more than twelve
years, has acquired title by adverse possession and he is
entitled to claim a declaration to that effect. The question
whether a trespasser is entitled to get a declaration to that
effect did not arise for consideration in the said case also. A
decision can be held to be per incuriam only when it is rendered
contrary to a statutory provision or against the binding
decisions of the courts. There is no statutory provision which
enables a trespasser to file a suit for declaration of his title to
the property by adverse possession and limitation. There is also
no decision by any larger bench of the Apex Court which took a
contrary stand on the said issue. As such, the contention
advanced by the learned Senior Counsel for the appellant that
the decision in Gurudwara Sahib v. Gram Panchayat
Village Sirthala (supra) is a decision rendered per incuriam is
liable to be rejected. The contention raised by the learned
Senior Counsel for the appellants based on the decision of the
Apex Court in S.Jeevantham v. The State through
Inspector of Police, Tamil Nadu (supra) is also liable to be
rejected, for, the issue whether a suit for declaration of title
over a property by adverse possession and limitation is
maintainable or not has not been considered in the said case.
13. As regards the contention of the learned Senior
Counsel for appellants that at any rate, the plaintiffs were
entitled to a decree for injunction, I must point out at once that
there is no pleading in the plaint as regards the right of the
plaintiffs to obtain a decree of injunction against the
defendants. As noticed above, a decree of injunction was
sought in the suit as a consequential relief to the declaratory
relief sought in the suit to the effect that the plaintiffs have
perfected title to the property by adverse possession. Further,
the specific case of the plaintiffs is that they are trespassers. It
is now settled that no injunction can be granted against the true
owner at the instance of a trespasser. (See Premji Ratansey
Shah v. Union of India [(1994)5 SCC 547), Mahadeo
Savlaram Shelke v. Pune Municipal Corpn. [(1995)3 SCC
33], Tamil Nadu Housing Board v. A.Viswam (AIR 1996 SC
3377) and Sopan Sukhdeo Sable v. Asst. Charity Commr.
[(2004) 3 SCC 137). Paragraphs 25 and 26 of the decision of
the Apex Court in Sopan Sukhdeo Sable v. Asst. Charity
Commr. (supra) read thus:
"25. Now the other aspect of the matter needs to be
noted. Assuming a trespasser ousted can seek restoration
of possession under Section 6 of the Specific Relief Act,
1963, can the trespasser seek injunction against the true
owner? This question does not entirely depend upon
Section 6 of the Specific Relief Act, but mainly depends upon
certain general principles applicable to the law of injunctions
and as to the scope of the exercise of discretion while
granting injunction. In Mahadeo Savlaram Shelke v. Pune
Municipal Corpn. it was held, after referring to Woodroffe:
Law Relating to Injunctions; Goyle, L.C.: Law of Injunctions;
Bean, David: Injunctions; Joyce: Injunctions and other leading
articles on the subject that the appellant who was trespasser
in possession could not seek injunction against the true
owner. In that context this Court quoted Shiv Kumar Chadha
v. Municipal Corpn. of Delhi wherein it was observed that
injunction is discretionary and that: (SCC p.175, para 31)
"[J]udicial proceedings cannot be used to protect or to
perpetuate a wrong committed by a person who approaches
the court."
26. Reference was also made to Dalpat Kumar v.
Prahlad Singh in regard to the meaning of the words "prima
facie case" and "balance of convenience" and observed in
Mahadeo case that: (SCC p.39, para 9)
"9. It is settled law that no injunction could be
granted against the true owner at the instance of persons in
unlawful possession."
In the light of the aforesaid decisions of the Apex Court, I do not
think that the plaintiffs in this case are entitled to a decree of
injunction against the first defendant who is the real owner of
the property.
In the result, the Second Appeal fails and the same
is, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR,
(JUDGE)
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