The suit for permanent injunction based on possessory title is maintainable, and concurrent findings of fact by lower courts cannot be disturbed without manifest error.

JUDGMENT :

Mahendar Kumar Goyal, J. - This writ petition has been preferred against the judgment and decree dated 30.08.1999 passed by the Board of Revenue Rajasthan, Ajmer (for brevity, "BoR") in appeal No.154/1995 whereby, while dismissing the appeal preferred by Shri. Ratan Singh (hereinafter referred to as, "defendant No.3") -the predecessor-in-interest of the petitioners, the judgment and decree dated 31.08.1995 passed by the Revenue Appellate Authority, Alwar (for brevity, "learned First Appellate Authority") dismissing the appeal No.296/1987 preferred against the judgment and decree dated 30.09.1976 passed by the Assistant Collector, Rajgarh, District Alwar (for brevity, "trial Court") decreeing the suit No.218/1972 filed by Shri. Gulab Singh (for brevity, "plaintiff")-the predecessor-in-interest of the respondents No.1/1 to 1/5 for permanent injunction, have been affirmed.

2. The relevant facts in brief are that the plaintiff filed a suit for permanent injunction against the defendant No.3 and the predecessor-in-interest of the proforma respondents No.2 to 8/defendants No.1 and 2 stating therein that he was in possession and cultivation of the land of Khasra no.165/3 measuring 3 bighas 19 biswas Village Mokroda, Tehsil Rajgarh, District Alwar since long. Alleging that the defendants have no concern with the subject agricultural land; but, are interfering in his use and occupation of the same. Therefore, the decree, as aforesaid, was prayed for. The defendants in their written statement, denying the averments made in the plaint, submitted that the defendant no.3 was Khatedar of the subject land and was in its possession. They prayed for dismissal of the suit.

3. On the basis of pleadings of the parties, the trial Court framed two issues including relief. The issue no.1 was to the effect as to whether the plaintiff was in possession and cultivation of the land of Khasra no.165/3. After recording evidence of the respective parties, the trial Court decreed the suit vide judgment dated 30.09.1976 deciding the issue no.1 in favour of the plaintiff holding that although, the defendant no.3 Ratan Singh was Khatedar of the subject land; but, it was in possession and cultivation of the plaintiff since long. The first appeal preferred thereagainst by the defendant no.3 was dismissed by the First Appellate Court vide judgment and decree dated 31.08.1995 and the second appeal preferred thereagainst by the defendant No.3 has also been dismissed by the BoR vide judgment and decree dated 30.08.1999.

4. Assailing the impugned judgment and decree, learned counsel for the petitioners submits that the Courts erred in granting the decree of permanent injunction in favour of the plaintiff ignoring and overlooking that the subject land was in the Khatedari of Ratan Singh, their ancestor. He further submits that it was not appreciated by the Courts that the suit simplicitor for injunction was not maintainable in absence of prayer for decree of declaration as the plaintiff was not owner of the subject property. He, therefore, prays that the writ petition be allowed, the judgment and decree dated 30.08.1999 be quashed and set aside and the suit be dismissed.

5. Per contra, learned counsel for the respondents No.1/1 to 1/5, supporting the findings recorded by the Courts, would submit that there are concurrent findings of facts by the three Courts whereby, the plaintiff has been found to be in possession of the subject property and entitled for the decree of permanent injunction. He further submits that since, the suit was simplicitor for injunction, in view of his long, peaceful and settled possession, the learned Courts did not err in decreeing the same. Learned counsel, relying upon a judgment of the Hon'ble Supreme Court of India in the case of Sadhana Lodh v. National Insurance Co. Ltd and another: AIR 2003 SC 1561 and a co-ordinate Bench judgment of this Court in the case of Ganga Ram @ Gangu v. Jagannath: 2008 WLC (Raj.) UC 478, would submit th