In order to succeed in a suit for permanent injunction to restrain interference with possession, the plaintiff must prove his established possession of the property on the date of the institution of the suit.

R.L.Anand, J.

1. The appellants are the legal representatives of unsuccessful plaintiff Bishna and they have filed the present appeal and it has been directed against the judgment and decree dated 6.2.1979 passed by the Additional District Judge, Karnal, who accepted the appeal of the defendants Teja and others by setting aside the judgment and decree of the trial Court dated 15.2.1975 and dismissed the suit for permanent injunction of plaintiff Bishna, now represented by Bhan Singh and others.

2. Brief facts of the case are that Bishna plaintiff (deceased) filed a suit for permanent injunction that the defendants be restrained from interfering in his possession over the Bara in question, which was allegedly owned and possessed by him from the times of his ancestors and over which he had been putting his heap of rubbish, which was lying there at the time of the institution of the suit. The plaintiff alleged that he was the owner in the Shamilat Deh and Abadi Deh. He was one of the proprietors of the village. He was enjoying the possession over the Bara in dispute and that the defendants wanted to interfere in his possession but they had no right to do so. Hence the suit.

3. The suit was contested by the defendants respondents on the plea that Bishna was neither the owner nor in possession of the Bara, rather the defendants were the owners and in possession. Further it was pleaded that the suit of the plaintiff Bishna was not maintainable in the present form.

4. On the above pleadings of the parties, the trial Court framed the following is-sues:-

1. Whether the Bara in dispute is owned and possessed by the plaintiff? OPP.

2. Whether the suit is not maintainable? OPD.

3. Relief.

5. The parties led oral and documentary evidence in support of their case and vide judgment dated 15.2.1975 the trial Court held that the plaintiff is in possession of the Bara in dispute. All the issues were decided in favour of the plaintiff and the suit was decreed. The relevant findings of the trial Court are contained in Para Nos. 13 and 14 of the judgment, which I would like to reproduce for the purpose of appreciation of the controversy in this suit.

"13. In the evidence it was appeared that the parties descends from the common ancestor and this property was sometime joint of the parties. There is no plea by the either side on the lines of these facts. It has no bearing on the merits of the case and so that part of the evidence need not be discussed.

14. In the right of the discussion entered into above, I hold that the plaintiff has been successful in proving his possession over the suit property. His title to it flows from that possession. The defendants have been unable to disprove the case of the plaintiff. This issue is therefore concluded in favour of the plaintiff and against the defendants."

6. Aggrieved by the judgment and decree aforesaid the defendants filed the appeal before the Court of Additional District Judge, Karnal, who vide the impugned judgment and decree dated 6th February, 1979 allowed the appeal and set aside the judgment and decree of the trial Court and the suit of the plaintiff represented by his legal representatives was dismissed. The reasons given by the first appellate Court are contained in para No. 9 of the judgment, which is reproduced as follows:-

"The learned trial Judge was conscious of the fact that in such like cases it is the possession which governs title, but still he observed that the possession has to be determined on the basis of various acts of user. According to the trial Court, the placing of rubbish on the property by the plaintiff was sufficient act of possession, which therefore, entitled him to the decree. The trial Court observed in paragraph II of the judgment that in village Baras are used for purposes like storing of rubbish, manure and tethering of cattle and these acts of user indicate ones possession over the particular plot. I am afraid this reasoning of the trial Court is not sust