The burden of proof lies upon the plaintiff to prove actual and physical possession of the suit property for the grant of permanent injunction.

ALKA SARIN, J.

1. The present appeal has been preferred against the judgments and decrees dated 19.10.2012 and 16.11.2016 passed by the Courts below dismissing the suit filed by the plaintiff-appellant.

2. The brief facts relevant to the present lis are that the plaintiff-appellant filed a suit for permanent injunction against the defendant-respondents for restraining them from causing any interference towards the south courtyard and right of ingress and egress and not forcibly raise any construction or cause hinderance from using the common path, road to the said courtyard. It was claimed that the plaintiff-appellant was owner in possession of a house in village Gothri, Tehsil Narnaul and had been residing there since the last 60-65 years. The courtyard to the south of his house was being used by the plaintiff-appellant for tethering cattle and storing firewood and even the mori, parnala, windows, ventilators and door of his house opened in the said courtyard. It was alleged that the defendant-respondents intended to encroach upon the suit property and if they succeeded then the plaintiff-appellant shall suffer irreparable loss and injury. Hence, the suit. In the written statement the defendant-respondents raised preliminary objections regarding maintainability, cause of action, locus standi, concealment of true and material facts. On merits it was submitted that the plaintiff-appellant was not the owner in possession nor his forefathers had any concern with the suit property. The defendant-respondents claimed that they were owners in possession since the time of their forefathers and had been residing therein and had built a surrounding wall and constructed one chappar, tin shed etc. where they also tethered their animals.

3. The Trial Court framed the following issues :

1. Whether the plaintiff is entitled to the relief of injunction as prayed for ? OPP

2. Whether the suit is not maintainable in the present form ? OPD

3. Whether the plaintiff has no cause of action and locus standi to file the suit ? OPD

4. Whether the plaintiff has not come in the court with clean hands ? OPD

5. Whether the plaintiff is estopped from filing the suit by his own act and conduct ? OPD

6. Relief.

4. On the basis of the pleadings of the parties and the evidence on the record, the Trial Court dismissed the suit of the plaintiff-appellant vide judgment and decree dated 19.10.2012. The Trial Court inter-alia found that the plaintiff-appellant had failed to prove his possession over the suit property. Aggrieved by the decision of the Trial Court, an appeal was preferred which appeal was also dismissed vide judgment and decree dated 16.11.2016. Hence, the present regular second appeal.

5. Learned counsel for the plaintiff-appellant would contend that the Courts below have erred in dismissing his suit for permanent injunction and that the possession of the plaintiff-appellant over the suit property was established by the evidence on the record.

6. I have heard learned counsel for the plaintiff-appellant.

7. In the present case both the Courts below have concurrently found that the plaintiff-appellant had failed to prove his ownership or possession over the suit property. Even the deposition of the witnesses of the plaintiff-appellant did not establish the case set-up by the plaintiff-appellant. Learned counsel for the plaintiff-appellant has not been able to point out any clinching evidence to prove the exclusive possession of the plaintiff-appellant over the suit property. In a suit filed under Section 38 of the Specific Relief Act, 1963, permanent injunction can be granted only to a person who is in actual possession of the suit property. The burden of proof lies upon the plaintiff to prove that he was in actual and physical possession of the suit property on the date of suit. The possession of the plaintiff cannot be based upon inferences drawn from circumstances. The plaintiff has to prove actual possession for grant of permanent injunction. In the present ca