1992 Supreme(MP) 9

V.D. Gyani and S.D. Jha, JJ.
Noormohammad v. Masidkhan
M.P. No. 855 of 1991 (I); Decided on 8.1.1992.

Headnote:Civil P.C., 1908 -- O. 39, Rr.1 and 2 -- person in settled possession -- cannot be dispossessed even by owner except by recourse of law n his possession is to be protected.

       

       flfoy izfdz;k lafgrk] 1908 & vk- 39] fu- 1 rFkk 2& r; gqvk dCt j[kus okyk O;fDr fof/k ds voyac ds vfrfjDr Lokeh }kjk Hkh csn[ky ugha fd;k tk ldrk & mldk dCtk lajf{kr fd;k tkuk gks x;kA

        By this petition under Articles 226 and 227 of the Constitution of India, the petitioner, who is defendant in Civil Suit No. ½2/90, pending in Court of Civil Judge Class II, Badnagar, Ditrict Ujjain, challenges order dated 19.3.1991 passed by First Additional Judge to the Court of District Judge, Ujjain, whereby he partly modified the order dated 26.4.1990 granting injunction in favour of the petitioner-defendant and directed that the order dated 26.4.1990 passed by the Trial Court in favour of the defendant-shall be applicable only in respect of 1/3rd share of the suit land situated at Bhaisalakalan and the plaintiffs shall be able to keep their possession over 2/3rd of the land.

        Held: In Krishna Ram Mahala v. Mrs. Sobhna Venkat Rao (AIR 1989 SC 2097) : "Mr. Tarkunde, learned counsel for defendant No. 3 the appellant, rightly did not go into the appreciation of the evidence either by the trial Court or the High Court or the factual conclusions drawn by them. It was, however, strongly urged by him that the period of licence had expired long back and the plaintiff was not entitled to the renewal of licence. It was submitted by him that in view of the licence having come to an end, the plaintiff had no right to remain in charge of the business or the premises where it was conducted and all that the plaintiff could ask for was damages for unlawful dispossession even on the footing of facts as found by the High Court. We find ourselves totally unable to accept the submission of Mr. Tarkunde. It is a well- settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. If any authority were needed for that proposition, we could refer to the decision of a Division Bench of this Court in Lallu Yashwant Singh v. RaoJagdish Singh (1968) 2 SCR 203 at pp. 208-210: (AIR 1968 SC 620 at pp. 622-23). This Court in that judgment cited with approval the well known passage from the leading Privy Council case of Midanpur Zamindari Co. Ltd. v. Naresh Narayan Roy, 51 Ind. App 293 at p. 299 (AIR 1924 PC 144) where it has been observed (p. 208) (of SCR) : at p. 622 of AIR) :

       

        "In India persons are not permitted to take forcible possession: they must obtain such possession as they are entitled through a Court" The decision in para 8 refers to Lallu Yeshwant Singh v. RaoJagdish Singh (AIR 1968 SC 620) and Privy Council decision in Midanpur Zamindary Co. Ltd. v. Naresh Naryan Roy (AIR 1977 SC 619), which has taken the same view. The second decision Ram Rattan v. State of U.P. (supra) and Parashram. Mahadeo v. Rajen Textile Mills (P) Ltd. (AIR 1975 SC 2079) in the context of the criminal cases lay down what is the settled possession and whether a trespasser, who has entered into possession of the land in question can protect his possession against the true owner. For the purpose of this petition a detailed discussion is not necessary.

       

        In our View, having regard to enunciation of law contained in Krishna Ram Mahale v. Mrs. Shobha Venkat Rao (supra) the petitioner, who has been found to be in de facto possession of the suit land, which possession has been described as prima facie de facto and permissive by the first appellate Court is entitled to protect his possession till he is evicted from the land in due course of law. In this view of the matter the temporary injunction granted by the trial Court in favour of the petitioner should not have been modified by the learned Additional District Judge.

        We, therefore, set aside the order passed by the learned Additional District Judge, Ujjain, and restore the injunction passed by the trial Court. The petition is allowed with no order as to costs. AIR 1989 SC 2097, AIR 1968 SC 620, AIR 1977 SC 619 and AIR 1975 SC 2079 relied on.