1985 Supreme(MP) 694

IN THE HIGH COURT OF MADHYA PRADESH
B.M. Lal, J.
Kamal Singh – Petitioner
Versus
Jairam Singh – Respondent
C. R. No. 1688 of 1984 (I)
Decided On : 02-08-1985

Headnote:(1) Civil Procedure Code, 1908 – O.39, R. 1 and 2 – temporary injunction under cannot be claimed merely on basis of possession – possession should be legal possession of trespasser cannot be protected.

       (2) Possession – should be legal for claiming temporary injunction.

        Short Note

       1. The salient features of tile case are that the suit was filed on 6 – 1 – 83 and the application for injunction was also filed on the same day, but during the pendency of the application for grant of injunction the non – applicant No.1 was delivered possession under the warrant of possession as directed by the Board of Revenue.

       2. The trial Court, however, considered the aspect of 'possession' alone, i.e., considering the factum of possession, it granted injunction on 5 – 5 – 84 in favour of the plaintiff applicant.

       3. The non – applicant – defendants preferred appeal against this order of the Trial Court. The appellate Court by the impugned order dated 29 – 10 – 84 set aside the order of the Trial Court dated 5 – 5 – 83 and dismissed the application for grant of injunction against which the present revision has been filed by the unsuccessful plaintiff – applicant.

       Held: On 6 – 4 – 83 when the suit was filed, no doubt, the applicant plaintiff was in possession of the suit land. But, as to whether his possession was lawful or unlawful, that has not been inquired into by the trial Court while passing order on the injunction application. It is true that while passing the order no elaborate inquiry is required to be conducted, but all the same, if the respective parties want to lead evidence to 'controvert the allegation and counter – allegations of the application, then certainly, the trial Court is required to give that much opportunity for proving the requirement for grant of injunction. i.e. prima facie case. For proving prima facie case, the party who seeks injunction in his favour, is not only required to prove the possession but also further required to prove his legal right of possession or such possession which is recognized under the law having its presumptive value, then only he could say that he succeeded to establish his possession over the suit land. Merely, by proving factum of possession, will not serve the purpose within the meaning of Order XXXIX Rules 1 and 2 CP.C. for seeking injunction.

       4. It is settled law that "Possession may be good against all the world prima facie, but not against the true owner having title with him. Therefore, presumption of possession over an open land always deemed to be that of the owner and not of trespasser.

       5. If, on the basis of factum of possession alone, the Court starts granting injunction, this will lead to a great anarchy of the provisions of O. 39, Rules 1 and 2. C.P.C. and the seasoned Court – birds will not even hesitate in exercising muscle – practice in dispossessing the true owner having title of the land with him, and will file suit for seeking injunction just dispossessing him a preceding day of filing of the suit. Therefore, possession for which the law does not give any legal sanctity to it, in the eye of law will not be construed to be 'Possession' and ill such cases only on the basis of factum of possession question of grant of temporary injunction does not arise. ‘Possession' as being used in common parlance and according to dictionary meaning, means, to which the law recognizes" i.e., legal possession – having some sort of semblance of legal right to occupy land in question or in law has got some presumptive value of the possession.

       6. The word "Possession" connotes not only physical occupation of a property or piece of land, but also connotes domain or control over it. 'Occupation' on the other hand means the right to occupy or to cultivate or use the land. A bhumiswami can be in possession of a plot of land even though the same is in occupation of his tenant, as permitted and provided in law, but the mere right to cultivate does not amount to possession unless" and until it is shown that in his independent right he is cultivating and occupying the land and his name finds place in the khasra entries which have got a presumption value in the eye of law.

       7. In the instant case, no doubt, the applicant – plaintiff was in possession of the land in suit, at the time of filing the suit, but he failed to show and establish any source of semblance of title to justify his possession over the suit land. Therefore, for want of semblance of legal right which could be supported by some legal evidence, only on the basis of factum of possession alone, the injunction as has been granted by the trial Court, bas been rightly vacated by the Appellate Court.

       8. Their lordships of the Supreme Court in Gangubai Bablya Chaudhary and others v. Sitaram Bhalchandra Sukhtankar and others etc. (AIR 1983 SC 742) have held that be wben an interim injunction is sought for the Court has to examine whether the party seeking the assistance of the Court, was at any' time in "lawful possession" of the property. More emphasis was given on lawful possession. Therefore, while dealing with an application for grant of injunction it is incumbent upon the Court granting injunction to look into the matter and to verify from the record filed by the respective parties, as to who was in lawful possession of the disputed land property at the time of filing the suit, construing "possession" to be a lawful possession.

       9. The learned counsel appearing for the applicant placed great emphasis and vehemently argued on the basis of the decision of this Court reported in 1981 JLJ 487 (Chhitoo Hirajee and others v. Sakharam Umdia and others) that for granting injunction only factum of possession may be looked into. He further argued that at this stage question of examining title does not arise at all. I am afraid, if this contention is accepted then, as stated above, it will lead to misuse of provision of Order 39, Rules 1 and 2 C. P. C. as in law 'Possession' always recognises a 'legal Possession' having semblance of some title, may be documentary title or may be established by leading some cogent evidence that a person has perfected his title by any legal means.

       10. Therefore, in my view, the decision of this Court in Chhitoo Hirajee's case (Supra) stands no longer a good law in view of the pronouncement of their Lordships of the Supreme Court in Ganoubat Bablya Chaudhary's case (Supra). 1981 JLJ 487 held to be no more good law. AIR 1983 SC 742 followed. Revision dismissed.