Point of Law: Where once a suit is held not maintainable, no relief of injunction can be granted.

JUDGMENT :

JYOTSNA REWAL DUA, J.

1. This appeal was admitted on 28.10.2010 on following substantial question of law:

“Whether the first Appellate Court has fallen in error, by granting decree of permanent prohibitory injunction against the defendant-appellant, who has been held to be the owner of the suit land?”

2. The case:

(i) A civil suit was instituted by late Sh. Sawaru the predecessor-in-interest of the present respondents against late Sh. Durga Dass predecessor-in-interest of the present appellants. In the civil suit following relief was claimed:

“1. Decree for declaration that the plaintiff is owner in possession of the suit land and the entries in the revenue record are wrong.

2. Decree for permanent injunction that the defendant should not interfere in any manner in this suit land.

3. In case the defendant take forcible possession of the suit land then decree for possession.

4. Any other relief which this Hon’ble Court deems fit by passed in favour of the plaintiff and against the defendant.”

(ii) Plaintiff’s case was that he was in possession of the suit land since the year 1956. His possession was open, peaceful and without any interruption to the knowledge of the owner. He was in hostile possession of suit land since the year 1960. He had become owner in possession of the suit land by way of adverse possession. Plaintiff claimed himself to be a tenant over the suit land under one Sh. Naulu on payment of rent. Naulu died. Mutation of suit land was attested in the name of Dandu on the basis of Will stated to have been executed by Naulu. Dandu further sold the suit land to the defendant. Revenue entries of suit land existing in favour of the defendant were wrong and illegal. The sale deed executed by Dandu in favour of the defendant was also illegal and not binding upon the plaintiff.

(iii) The defendant claimed that he was owner in possession of the suit land. The suit land was sold to him for a sale consideration of Rs. 25,000/- by its lawful owner Dandu on 23.05.1997. This transaction was duly incorporated in the revenue records. Mutation to this effect was attested on 28.10.1997. Plaintiff was neither the tenant nor the owner by way of adverse possession of the suit land. The plaintiff appeared as PW-1 and stated that he was in continuous possession of the suit land for the last about 50 years. He had raised a cowshed over the suit land in the year 1960. He had been giving 1/4th of the produce to Naulu as rent, however about 20-22 years ago, Naulu refused to accept rent from the plaintiff. Plaintiff’s application for correction of revenue entries was dismissed by the Sub Divisional Collector on 24.04.1987. The land was mutated in the name of Dandu on the basis of Naulu’s Will. Dandu further sold the land to the defendant. The plaintiff admitted that in the revenue record neither his name was reflected as owner nor in possession of the suit land. The defendant did not step into the witness box.

(iv) Learned Trial Court vide judgment and decree dated 21.02.2004, dismissed the civil suit. Learned Trial Court held that the plaintiff had claimed himself to be a tenant under Naulu but the tenancy was not proved on record. There was no evidence to show that the plaintiff was paying 1/4th produce to Naulu as claimed by him. Plaintiff’s claim of possession over the suit land allegedly for past 50 years would not give it the nature of adverse possession. The plaintiff had even failed to prove his possession over the suit land. His own witness PW-2 stated that the defendant was in possession over the suit land. Plaintiff had not denied the execution of sale deed by Dandu in favour of the defendant. Plaintiff had not refuted defendant’s claim that he had purchased the suit land from Dandu for a sale consideration of Rs.25000/ - on 23.05.1997. The only opposition of the plaintiff to the defence was that the sale of suit land by Dandu was not proper. Learned trial court came to the conclusion that in the jamabandi for the year 1994-95 (Ex