1991 Supreme(MP) 595

IN THE HIGH COURT OF MADHYA PRADESH
R.C. LAHOTI, J.
Ramkishan - Appellant
Versus
Rampal - Respondent
S.A. No. 276 of 1980 (G)
Decided on : 27-11-1991

Headnote:(1) Civil Procedure Code, 1908 – S. 100 – finding as to possession – is a finding of fact binding in second appeal.

       (2) Specific Relief Act, 1963 – S. 38 – settled and peaceful possession for 3 – 4 years proved – plaintiff is entitled to permanent preventive injunction against forcible dispossession.

        Short Note

       1. The plaintiff/appellants have come up in appeal aggrieved by the judgments and decrees of the Courts below dismissing their suit for declaration of title over 2 bigha area, out of 2 bigha 7 biswas area of lands S. No. 123/1, situated at village Rajlai of Tahsil Sheopurkalan.

       Held: The sole foundation of the title canvassed by the plaintiffs was that they had perfected their title in the suit property by adverse possession extending over the statutory period vide para 7, the lower appellate Court has recorded a finding of fact, affirming that of the trial Court, based on appreciation of oral and documentary evidence adduced by the parties, that the plaintiffs had entered into the possession of the suit property sometime in the Samvat year 2029 which would be somewhere around the British year 1972. The suit was filed in the year 1976. The finding binds this Court in second appeal (See Kshitish Chandra v. Commissioner of Ranchi – AIR 1981 SC 707, para 10). No fault can be found with the finding as it has not been shown to be based on misreading or non – reading of the evidence.

       2. The finding of the Courts below that the plaintiff/appellant have utterly failed in proving their title to the suit property is confirmed.

       3. However, the only contention that merits consideration is that the plaintiffs had also prayed for issuance of a permanent preventive injunction protecting their possession over the suit property and because the plaintiffs had succeeded at least in proving that they had been in settled and peaceful possession of the suit property for a period of 3 – 4 years prior to the institution of the suit, the defendants should have been restrained at least from forcibly dispossessing them.

       4. It appears that the defendant/respondent No.1 had secured allotment of land from the State. There was a dispute whether or not the possession was actually delivered to him. The remedy of the defendants lies either in moving the allotment authority for delivery of possession or filing of suit for possession based on their title before the civil Court. That they are still at liberty to do. The title of the plaintiffs having been negatived and their right to seek a declaration of title also having been refused, the only relief that deserves to be allowed to them is restraining the defendant from taking possession from the plaintiffs by show of force or by taking the law in their own hands.

       5. In Amra v. Samalia (1991 – II – MPWN 119), this Court has, referring to the decisions of the Supreme Court in Krishnaram Mahala v. Mrs. Shobha Venkat Rao (1989) 4 SCC 131, Lallu Yashwant Singh v. Rao Jagdish Singh (AIR 1968 SC 620) and Nair Service Society v. K.C. Alexander (AIR 1968 SC 1165), held: –

       " – – – – – a person in settled and peaceful possession of the suit property cannot be allowed to be dispossessed even by the real owners by taking the law in their own hands.”

       6. The appeal is partly allowed. The judgments and decrees of the Courts below dismissing the plaintiffs' suit for declaration of title over the suit property are maintained. The decrees of the Courts below dismissing the plaintiffs' suit for issuance of preventive injunction are set aside. It is directed that the defendant are restrained from dispossessing the plaintiffs by show of force and except in accordance with law, or by taking recourse to legal proceS. In the facts and circumstances of the case, the parties arc left to bear the costs as incurred throughout. Counsel's fee, as per Schedule, if certified.