An injunction cannot be granted to restrain a party from interfering with another party's possession of land unless the court is satisfied that the party seeking the injunction is actually in possession.

Before Mr. Justice Sanjib Banerjee, J.

( 1 ) THE short question that has been raised in this revisional application is whether the learned Appellate Court below could grant an order of injunction in favour of the plaintiffs/opposite parties restraining the petitioner from disturbing the plaintiffs' alleged possession of an open land without ascertaining as to whether the plaintiff was in possession of such land.

( 2 ) THE plaintiffs' application under Order 39 Rules 1 and 2 made in a suit seeking declaration and injunction in respect of immovable property, was dismissed. The appeal was allowed by restraining the defendants from interfering with the plaintiffs' possession of the suit property.

( 3 ) THE Appellate Court's criticism of the trial Court's order is found in the following lines: -

"in the impugned order learned Court below observed. . . though according to the title deed of gift and the R. O. R S. it appears that the plaintiffs and the proforma defendants are the owner of the suit property but from the document of the defendants i. e. the certified copy of the registered sale deed dated 16. 1. 1932 which is the prior deed of the plaintiffs deed of gift, it is trite that the defendants predecessor and subsequently the defendants have certain interest over the suit property. Yes, that question is supposed to be decided in the suit. But that deed does not totally negate the claim of the plaintiffs. Defendants themselves admitted that the predecessor in interest of the plaintiffs also owned the bigger part of the land of which suit property is a pond. There was absolutely no reason to hesitate in holding that the plaintiff had a prima facie case. "

( 4 ) FOLLOWING such criticism of the lower Court's order, the Appellate court proceeded to restrain the defendant Nos. 1 to 3 from interfering with the possession of the plaintiffs over the suit property till the disposal of the suit. However, it does appear from the appeal Court's order that the appellate Court had found that the plaintiff was actually in possession.

( 5 ) THERE was no prima facie satisfaction of the first Court on this aspect.

( 6 ) MR. Aniruddha Chatterjee, learned Advocate appearing in support of this application has cited the judgment reported at 2006 (3) SCC 312 for the proposition that unless at the interlocutory stage the Court came to a finding that the party seeking an order of injunction restraining the other party from interfering with his possession, was actually in possession, no injunction could be granted. He has placed Paragraph -5 of that judgment which is as follows : -

"it is necessary to notice at this stage that in an original suit of this nature, it was not appropriate for the Additional District Judge to pass an order directing the parties to maintain status quo, without indicating what the status quo was. If he was satisfied that the appellant before him had made out a prima facie case for an adinterim ex parte injunction and the balance of convenience justified the grant of such an injunction, it was for him to have passed such an order of injunction. But simply directing the parties to maintain status quo without indicating what the status quo was, is not an order that should be passed at the initial stage of a litigation, especially when one Court had found no reason to grant an ex parte order of injunction and the Appellate Court was dealing with only the limited question whether an ad interim order of injunction should or should not have been granted by the trial Court, since the appeal was only against the refusal of an ad-interim ex parte order of injunction and the main application for injunction pending suit, was still pending before the trial Court itself. Therefore, we are prima facie of the view that the Additional District Judge ought not to have passed an equivocal order like the one passed in the circumstances of the case. But of course, that aspect has relevance only to the extent that before ordering an interim mand

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