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IN THE HIGH COURT OF ALLAHABAD
SUDHIR AGARWAL, J.
Shanti Bai - Appellant
Versus
Narbada And Others - Respondent
Second Appeal No. 116 of 1977
Decided on : 03-07-2019
Civil Procedure Code, 1908 – Section 96, 100 – Seeking injunction, must prove better title than person who is allegedly interfering in his possession – Whether plaintiff’s possession legal and he/she entitled to injunction against defendants – Held, Plaintiff, who seeks injunction, must prove better title than person who is allegedly interfering in his possession – Mere long continuous possession without there being any right to property cannot be ground to retain possession against true owner except if case is within ambit of doctrine of "adverse possession" – However, if plaintiff is lost or failed to prove his/her title, it is not open to him/her to claim injunction to continue in possession merely on plea of long continuous possession – plaintiff evicted from property in dispute or her possession is being interfered in respect of property in dispute by resorting to unlawful means. On contrary, plaintiff set up her case on basis of title, which she failed to prove – In these circumstances, I do not find that there was any justification to pass a decree of injunction in favour of plaintiff and Trial Court clearly erred in law in doing so – Judgment of LAC, reversing findings and decision of Trial Court, in my view, is perfectly valid, legal and warrants no interference – Appeal Dismissed. (Paras: 62 to 68)
Facts of the case:
Seeking injunction, must prove better title than person who is allegedly interfering in his possession – Whether plaintiff’s possession legal and he/she entitled to injunction against defendants.
Findings of the court:
Plaintiff, who seeks injunction, must prove better title than person who is allegedly interfering in his possession – Mere long continuous possession without there being any right to property cannot be ground to retain possession against true owner except if case is within ambit of doctrine of "adverse possession" – However, if plaintiff is lost or failed to prove his/her title, it is not open to him/her to claim injunction to continue in possession merely on plea of long continuous possession – plaintiff evicted from property in dispute or her possession is being interfered in respect of property in dispute by resorting to unlawful means. On contrary, plaintiff set up her case on basis of title, which she failed to prove – In these circumstances, I do not find that there was any justification to pass a decree of injunction in favour of plaintiff and Trial Court clearly erred in law in doing so – Judgment of LAC, reversing findings and decision of Trial Court, in my view, is perfectly valid, legal and warrants no interference.
Result: Appeal Dismissed
JUDGMENT :
Sudhir Agarwal, J.
Heard Sri W.H.Khan, Senior Advocate, assisted by Sri Gulrez Khan, learned counsel for appellant and Sri Ravi Kant, Senior Advocate, assisted by Sri A.K.Sachan, Advocate as well as Sri Santosh Kumar Mishra, learned counsel for respondents.
2. This is a plaintiff's appeal under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C.") having arisen from judgment and decree dated 07.01.1977 passed by Sri Chandra Mohan, District Judge, Banda in Civil Appeal No.38 of 1971 whereby appeal has been allowed and judgment and decree dated 11.01.1971 passed by Sri Vikash Chandra Jain, IIIrd Temporary Civil and Sessions Judge, Banda, whereby Original Suit No.12 of 1966 was decreed, has been set aside.
3. This appeal was admitted on 25.01.1977 i.e. before amendment of Section 100 C.P.C., therefore it has not been admitted on any substantial question of law, which became necessary on and after 01.02.1977.
4. Section 100 C.P.C., as it was prior to 01.02.1977, read as under:
"100. (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court on any of the following grounds, namely:
(a) the decision being contrary to law or to some usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.
(2) An appeal may lie under this Section from an appellate decree passed ex parte." (emphasis added)
5. Thus, if Court below has decided an issue contrary to law, or a material issue of law has not been determined or there is substantial error or defect in procedure provided in C.P.C. or any other law, which has caused error or defect in decision upon merits or decision is ex-parte, this Court can interfere.
6. Now I proceed to consider arguments raised by learned counsel for parties to examine whether judgment of Court below suffers any of such defect as pointed out above so as to warrant interference in this appeal, on merits.
7. Original Suit No.12 of 1966 was instituted by Smt. Shanti Bai wife of Lala Piarey Lal, vide plaint dated 08.12.1966, impleading seven defendants namely Narbada (minor) son of Janki Sharan; Sudul son of Deo Raj; Narbada son of Hira Lal; Raja Ram son of Tulsi Ram; Dwarka Prasad son of Tulsi Ram; Puran Mal son of Tulsi Ram; and Kuber Prasad son of Tulsi Ram, for grant of permanent injunction restraining defendants from interfering in plaintiff's possession and rights in respect of a house, boundaries whereof are detailed at the foot of plaint, situated in Kasba Karvi, Nai Bazar, District Banda.
8. The plaint case set up is that disputed house was initially owned by Smt. Saraswati Bai widow of Mool Chand. Tulsi Ram, father of defendants 4 to 7, was brother of Mool Chand. He acquired possession over the house whereupon Smt. Saraswati Bai filed suit for his ejectment, which was decreed. Tulsi Ram was evicted from disputed house and possession was restored to Smt. Saraswati Bai. Thereafter Saraswati Bai continued as owner in possession of disputed house. Smt. Saraswati Bai executed a sale deed dated 29.12.1965 in favour of plaintiff. Prior to execution of sale deed, Smt. Saraswati Bai was exercising title and possession by mortgaging house and letting it out to the tenants. Some portion of house had fallen down and some tenants were occupying by raising temporary constructions thereon. After purchase of disputed house, plaintiff herself had raised two rooms on old foundation. Defendants 4 to 7, sons of Tulsi Ram, in collusion with defendants 1 to 3, sought to interfere in peaceful and exclusive possession and enjoyment of suit property by plain
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