IMPORTANT POINT
Mandatory injunction – Dispossession from premises in a high-handed manner cannot be countenanced.

ORDER

This appeal under Order 43 Rule 1 (r) of the Code of Civil Procedure has been preferred by the plaintiffs/appellants being aggrieved by the order dated 30.04.2024 passed by the appellate Court whereby their application under Order 39 Rule 1 and 2 of the CPC for issuance of mandatory injunction has been rejected.

2. The facts of the case in brief are that the plaintiffs/appellants claim themselves to be the owners of the disputed property the same having been purchased by their predecessors by registered sale deed dated 14.11.1892. On 14.07.1995 defendant No.1 issued notices to the plaintiffs under Section 12 of Public Premises (Eviction of Unauthorizd Occupants) Act, 1971 seeking documents of title regarding the disputed property. The plaintiffs filed their reply to the notice. On 05.06.1995 defendant No.2 passed an order under Section 5-B(2) of the Act, 1971 informing the plaintiffs for stopping construction over the disputed property. Reply was submitted by the plaintiffs to the said notice on 09.06.2025. On 15.06.1995 defendant No.2 issued a notice to the plaintiffs under Section 4 of the Act, 1971. The plaintiffs then preferred W.P. No.846/1995 before this Court which was dismissed by order dated 10.07.1994 granting liberty to them to file a civil suit.

3. On 07.05.1997 the plaintiffs filed a civil suit before the trial Court for declaration of their title over the disputed property, declaration that the notices issued by the defendants are null and void and for permanent injunction restraining the defendants from interfering with their possession over the disputed property. By order dated 09.05.1997 status quo with respect to the disputed property was directed to be maintained by the trial Court. Written statement to the plaintiff’s claim was filed by the defendants. Thereafter by order dated 01.08.2001 the trial Court granted temporary injunction in favour of the plaintiffs. Eventually by judgment and decree dated 20.12.2022 the trial Court dismissed the plaintiff’s claim but in paragraph No.39 it was held that though they have failed to prove their title but are in possession of the disputed property and are entitled to right of its occupation.

4. As per the plaintiffs, on the very next day i.e. 21.12.2022 in the morning at around 8.00 a.m. the defendants along with labourers and personnel came to the disputed property and took over possession of the same without following the due process of law and without any order of eviction passed by any competent Court or authority. On that day itself an appeal under Section 96 of the CPC was preferred by the plaintiffs before the appellate Court along with an application under Order 39 Rule 1 and 2 of the CPC for issuance of temporary injunction. That day itself the appellate Court granted status quo in respect to the disputed property. The plaintiffs subsequently filed another application under Order 39 Rule 1 and 2 of the CPC for grant of mandatory injunction directing for restoration of possession of the disputed property. The same was contested by the defendants by filing their reply and has been rejected by the appellate Court by the impugned order on the ground that plaintiff’s title has been negatived by the trial Court hence the issues raised by them can be decided only on merits.

5. Learned counsel for plaintiffs has submitted that plaintiffs are in possession of the disputed property as has been found by the trial Court itself. They were also held entitled for its occupation. There is no order of the defendants for dispossession of the plaintiffs despite which they have dispossessed them from the disputed property illegally and in an extremely high handed manner. On the very next morning of passing of the judgment and decree by the trial Court the plaintiffs were dispossessed without even affording them opportunity to challenge the said judgment in appeal and seek interim order from the appellate Court. During the entire pendency of the civil suit there was an inj