A plaintiff in a permanent injunction suit must prove lawful possession of the property and the defendant's interference, especially when the disputed property is unidentifiable.

JUDGMENT :

Rajnish Kumar, J.

1. Heard, Shri Bahar Ali, learned counsel for the appellants and Ms.Tapasya Bajpai along with Shri Amarendra Kumar Bajpai, learned counsel for the respondent no.1. None appeared on behalf of respondent no.2.

2. This second appeal under Section 100 of CIVIL PROCEDURE CODE (here-in-after referred as CPC ) has been filed for setting-aside the judgment and decree dated 14.10.2021/26.10.2021 passed in Civil Appeal No.60 of 2013 (Smt. Vijay Laxmi Vs. Ram Lal (Dead) substituted by his legal heirs) by Additional District Judge, Court no.6, Sitapur.

3. The appeal has been admitted on the following substantial question of law:-

"1. Whether learned first appellate court fell in error while granting permanent injunction without recording the finding of possession of the plaintiff/ respondent while maintaining the dismissal of suit for cancellation of sale deed?"

4. Learned counsel for the appellants submitted that the suit for permanent injunction and cancellation of sale deed filed by the plaintiff-respondent no.1 was dismissed by the trial court after considering the pleadings, evidence and material on record but the lower appellate court, though maintained the judgment and decree passed by the trial court to the extent of dismissal of suit in regard to cancellation of sale deed on the ground of unidentifiablity of the portion of land i.e. the land in dispute but held the plaintiff-respondent no.1 entitled for permanent injunction and granted the relief of permanent injunction on 1/4th western portion of Gata No.233 without any evidence and recording any finding of possession of the plaintiff-respondent no.1 on the said portion. Thus, the submission is that the judgment and decree passed by the lower appellate court is not sustainable in the eyes of law and liable to be set-aside.

5. Per contra, learned counsel for the plaintiff-respondent no.1 submitted that the predecessor-in-interest of the plaintiff-respondent no.1 had entered into a family settlement, on the basis of which they were in possession on their portion and accordingly she was in possession on the land in dispute. The possession of the parties has been decided on the basis of Commission Report in the suit for partition. Thus, the injunction has rightly been granted in accordance with law as the plaintiff-respondent no.1 is in possession on 1/4th portion on the western side of Gata No.233. It has further been submitted that the sale deed, without partition could not have been executed. However since that part of judgment and decree passed by the courts below has not been challenged by the plaintiff-respondent no.1, the same is not in issue in this appeal.

6. Learned counsel for the plaintiff-respondent no.1, on the basis of aforesaid submissions, submitted that the permanent injunction has rightly been granted by the lower appellate court in accordance with law. There is no illegality or error in the impugned judgment and decree dated 14.10.2021. He relied on judgment and order dated 10.09.2024 passed in SK. Golam Lalchand Vs. Nandu Lal Shaw @ Nand Lal Keshri @ Nandu Lal Bayes and Others ; Civil Appeal No.4177 of 2024 & judgment and order dated 01.05.2024 passed in Ram Balak Singh Vs. State of Bihar and Another ; Civil Appeal No.1627 of 2016, both by the Hon'ble Supreme Court.

7. I have considered the submissions of learned counsel for the parties and perused the records.

8. The suit for permanent injunction and ca