Kanhaiyalal vs Vasudeo - 1993 Supreme(MP) 412

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates:
R.D. Jain and S.K. Jain for appellant; Anil Mishra for respondents.

Headnote:Specific Relief Act, 1963 -- S. 38 -- plaintiff in peaceful possession of property for number of years -- entitled to the decree for permanent preventive injunction -- law respects possession.
        fofufnZ"V vuqrks"k vf/kfu;e] 1963 & /kkjk 38 & oknh dk laifRr ij okksaZ ls dCtk & LFkk;h fuokjd O;kns‘k dk gdnkj gS & fof/k dCts dk vknj djrh gSA
        The trial Court has upon an evaluation of oral and documentary evidence adduced by the parties recorded finding ort question of possession in favour of the plaintiff/appellant. The lower appellate Court has not dislodged this finding. On the contrary para 12 of the judgment of the lower appellate Court shows that it also agreed with the finding of the plaintiff having remained in possession of the suit property for quite some time though the plaintiff had not perfected his title by adverse possession, in its opinion.
        Held: It is to be noted that the Khasra entry, Ex. P-1, records possession of the plaintiff for Samvat years 2028 to 2032 i.e. for a period of 5 years continuously. This Khasra entry is relatable to British Calendar years 1971 to 1976. The suit was filed on 20.7.76. There is overwhelming oral evidence adduced by the plaintiff in support of his plea of having been in possession of the suit property for a number of years prior to the institution of the suit. The defendants own witness Nathuram (DW 2) admitted the plaintiff to have been in possession of the suit property for about four years before. That being the evidence, the finding as to possession recoded by the lower appellate Court is certainly sustainable.
        In the matter of grant of a permanent preventive injunction protecting possession over a suit property, the law is well settled. Three recent decisions of this Court are in point. They are Hamirsingh v. Shandra Shakhar (1993 RN. 80); Kala Bai v. Bhoj Raj (1992-1 MPJR SN 7) and Ramkishan v. Rampal (1992-1 MPWN 164). These decisions are based on the law laid down by the Supreme Court in Krishnaram Mahala v. Mrs. Shoblza Venkat Rao (1989) 4 SCC 131; State of U.P. v. Maharaja Dharmender Prasad & Ors. (1989) 2SCC 505; Yeshwantsingh v. Jagdish Singh (AIR 1968 SC 620) and Nair Service Society v. KC. Alexander (AIR 1968 SC 1165).
        The law settled by the Supreme Court is that law respects possession. A person in settled and peaceful possession of the property has to be protected and cannot be allowed to be dispossessed even by the real owner by taking the law in their own hands. The position may be different when encroachment committed is of a flimsy character or where a trespasser is sought to be prevented by the real owner whilst the former was in process of committing trespass.
        The appellant is not an encroacher of a flimsy nature nor a trespasser caught in the process of commission. He has been undoubtedly in settled and peaceful possession of the suit land for quite a number of years prior to the institution of the suit though exact number of years cannot be determined. He is, therefore, entitled to protect his possession from any attempt at his dispossession otherwise then by due process of law. The decree of injunction could not have been refused to the plaintiff/appellant.1993 RN 80, 1992-1 MPJR SN 7,1992 (I) MPWN 164 relied on. (1989) 4 SCC 131, (1989) 2 SCC 505, AIR 1968 SC 620 and AIR 1968 SC 1165 followed. Appeal allowed.