A trespasser cannot maintain an injunction against the rightful owner.

( 1 ) THE petitioner as plaintiff instituted Original Suit No. 1351 of 1997 in the Court of Learned civil Judge, Junior Division, Kanpur Nagar, against the opposite party-defendant for injunction restraining the defendant from evicting the plaintiff except through due process of law. An application for injunction was moved in connection with the said suit. Ad-interim order was issued on 5th August, 1997, Subsequently, the application for temporary injunction was dismissed by an order dated 1st May, 1999 passed by the learned civil Judge, Civil Misc. Appeal no, 146 of 1999 was preferred by the plaintiff-petitioner. By an order dated 18th August, 1999 passed by the Additional District Judge, Vth Court. Kanpur Nagar, the appeal was dismissed. These two orders dated 1st May, 1999 and 18th August. 1999 has since been challenged in this petition under Article 226 of the Constitution of India.

( 2 ) AN application has since been filed by the petitioner seeking to convert the petition into one under Article 227 of the Constitution of India. The said application is allowed and leave is granted to convert the application into one under Article 227 of the Constitution of India.

( 3 ) MR. M. D, Singh, learned counsel for the petitioner contends that the petitioner became tenant in respect of the said suit property by virtue of an oral agreement between the plaintiff and the defendant entered into on 20th May. 1997 at a rent of Rs. 350 payable per month. The plaintiff had advanced the rent for the period 20th May. 1997 till 19th June, 1997 but no receipt was issued. At the time of payment of the rent for the next month, the plaintiff insisted on issuing of receipt for the rent advanced but the defendant refused. The petitioner, thereafter, sent the rent through money order which having been refused, the rent is being deposited under Section 30 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act. 1972. On the allegation that the plaintiff fears that the defendant could evict him forcibly, the suit was filed seeking injunction restraining defendant from evicting the plaintiff forcibly. According to Mr. Singh, even if the plaintiff is held to be trespasser but still then he cannot be dispossessed even by the owner of the property except by recourse of law. He relied on paragraph 8 of the decision in the case of Krishna Ram Mahale v. . Mrs. Shobha Venkat Rao, AIR- 1989 SC 2097. Therefore, the order passed by both the Courts below, refusing to grant injunction, on the finding that the plaintiff was unable to establish his case of tenancy, cannot be sustained.

( 4 ) MR. Ramendra Asthana, learned counsel for the opposite party on the other hand contends that since the plaintiff has not been able to establish his tenancy right and he having been found to be a trespasser by both the Courts below, the said finding cannot be interfered with by this Court sitting in revision. In case the said finding remains in that event, the plaintiff as trespasser cannot maintain any injunction against the true owner. The defendant-opposite party had initiated a proceeding under Section 16 of the 1972 Act for releasing of the properly in his favour. The said proceeding cannot be estopped. According to him, unless the plaintiff is able to make out a prima facie case, he is not supposed to obtain an interim order of Injunction against the landlord. Then again the plaintiff had not claimed himself to be a trespasser but had claimed to be a tenant. Unless he establish that he is a tenant, he cannot seek Injunction on the basis of such plaint when the Courts had found him to be a trespasser. He had relied on several decisions which he had cited at the Bar. Therefore, according to him. the order passed by both the Courts below are justified and cannot be interfered with.

( 5 ) I have heard both the counsel at length.

( 6 ) IN the order dated 1st May. 1999, the learned trial court had found that the plaintiff has not been able to est