Wild Landscape

Kesar Bai v. Genda Lal: Does Something Remain Untold?

Created: 07 Jul 2024 at 23:29

Settled Possession Vs. Lawful Possession

Saji Koduvath, Advocate, Kottayam.

Abstract

               ••➧  Divergent opinion – Whether injunction can be issued against a true owner restraining him from evicting a ‘trespasser in settled possession’.
               ••➧  It is a sound principle – even the owner of the property can get back his possession only by resorting to due process of law.
               ••➧  In Kesar Bai v. Genda Lal, 2022-10 SCC 217, there was a (previous) Court Finding – the possession of the plaintiff (in the previous suit) was not lawful. Therefore, it was held – he is not entitled (in a subsequent suit) for injunction against the true owner.
               ••➧  It may likely to interpret this decision – the consequent natural outcome of this decision is that the defendant (rightful owner) need not go for a further suit, for recovery (under ‘due process’ doctrine).
               ••➧  There remains something unexplained.

Introduction.

Divergent views exist as to passing injunction in a case filed by a trespasser, against the ‘true owner’ of a property.

  • One view is that a trespasser in settled possession is entitled for injunction (even against the true owner), for, he cannot be evicted otherwise than on “due process of law” (by the true owner).
    • See: Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769 (Three Judge Bench decision).
  • The other view is that no injunction can be passed (against the true owner) in a suit filed by the person in unlawful possession (even if it is a settled possession).
    • See: Kesar Bai v. Genda Lal, 2022-10 SCC 217; Chenaji v. Maniben Jagmalbhai, 2022-2 RCR (Civil) 395; 2022 SCC OnLine SC 258 (Two Judge Bench decisions).

Settled Possession Vs. Rights of True Owner

When the relief of injunction or possession sought for in a suit is negated, and the title of the defendant as the owner is upheld, can the defendant recover the property without instituting a (second) suit, i.e., otherwise than on “due process of law“?

  • Earlier consistent view (See: Aarti v. Aruna Gautham, 2015-1 RCR Civil – 160 (SC): Ranjan Gogoi and Rohinton Fali Nariman, JJ.) was that the true owner was not legally entitled to eject the trespasser by force (otherwise than on due process of law), especially when the trespasser is in settled possession.
  • Present view: In Prahladji Chenaji v. Maniben Jagmalbhai: 2022-2 RCR (Civil) 395; 2022 SCC OnLine SC 258 (Followed in: Kesar Bai v. Genda Lal, 2022-10 SCC 217) it is held that the ‘due process’ or ‘due course’ condition was satisfied the moment the rights of the parties were adjudicated upon (in the first round), and therefore the possession of the plaintiff is not lawful.
  • It is held in Prahladji Chenaji as under:
    • “Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession.“
  • Note: Kesar Bai v. Genda Lal, 2022-10 SCC 217 (M.R. Shah, Sudhanshu Dhulia, JJ.) calls for reading along with Prahladji Chenaji v. Maniben Jagmalbhai: 2022-2 RCR (Civil) 395; 2022 SCC OnLine SC 258 (M.R. Shah, B.V. Nagarathna, JJ.).

View Prevailed in India – Courts Protect Settled Possession

  • Possession by itself is a substantive right recognised by law.
    • Nair Service Society Ltd. v. K.C Alexander, AIR 1968 SC 1165
    • Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179;
    • Phirayalal Kapur v. Jia Rani, AIR 1973 Delhi 186;
    • Nallammal v. Ayisha Beevi, 2017-5 Mad LJ 864). 
  • It is trite law that courts protect settled possession.
    • Poona Ram v. Moti Ram, AIR 2019 SC 813
    • Aarti v. Aruna Gautham. 2015 -1 RCR (Civil) 160,
    • Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769.
    • Krishna Ram Mahale v. Shobha Venkat Rao, (1989) 4 SCC 131
    • Ram Rattan v. State of Uttar Pradesh, (1977) 1 SCC 188.
    • Puran Singh v. The State of Punjab, (1975) 4 SCC 518
    • Munshi Ram v. Delhi Administration, (1968) 2 SCR 455,
  • Read Blog: POSSESSION is a Substantive Right in Indian Law

Even Rightful Owner to Take Recourse to law; He cannot take the law in his own hands

In Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769, our Apex Court Court (R.C. Lahoti, B.N. Srikrishna, G.P. Mathur, JJ.) observed that the law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner. It is held as under:­ 

  • “8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser.
  • A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force.
  • If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. 
  • The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force.
  • In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.” (quoted in: Subramanya Swamy Temple, Ratnagiri v. V. Kanna Gounder, 2009-3 SCC 306; Poona Ram v. Moti Ram, AIR 2019 SC 813)

What is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner was made clear in Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769. It reads as under:

  • “9. …The “settled possession” must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase “settled possession” does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession.” (quoted in Samarpan Varishtha Jan Parisar vs Rajendra Prasad Agarwal, AIR 2022 SC 2209)
  • Read Blog: INJUNCTION is a ‘Possessory Remedy’ in Indian Law

Even the Rightful Owner cannot Eject a Trespasser with Force

In Karthiyayani Amma v. Govindan, AIR 1980 Ker 224, the Kerala High Court considered the question whether the rightful owner can eject a trespasser in possession with force; and whether a person in illegal possession could sustain a suit for injunction against the true owner, from forcibly dispossessing him from the property.  It was held as under:

  • “The ultimate position, therefore, reduces itself to this:
  • Can a person in possession without title sustain a suit for injunction against the rightful owner if he proves possession?
  • Yes. In this case, plaintiff is found to in be possession. On the finding, he should be granted the injunction prayed for. A person in possession can be evicted only in due process of law. Even the rightful owner cannot eject him with force. If he cannot be evicted with force, he continues to be in possession and he can resist invasion of his possession by everyone including the rightful owner. If the rightful owner threatens his peaceful possession, he can approach Courts of Law and pray for the equitable relief of injunction to protect his possession”. (Followed in: Aiysumma v. Mariyamma, 1994-2 CIVCC 52, 1994-1 KerLT 570. )

It is pointed out in Suresh v. Ashok Girdharilal Chandak, 2016-1 MHLJ 171 that ‘bearing in mind the basic principle of law in civil jurisprudence that even a trespasser cannot be evicted without following due process of law and no one can be allowed to take law into his own hands to recover possession of the property without following due process of law and without proving title to the immovable property in possession of a person holding actual physical possession thereof’.

No Injunction in Favour of a Trespasser, Against the ‘True Owner’

It is observed by our Apex Court, in Prataprai N. Kothari v. John Braganza, AIR 1999 SC 1666, as under:

  • “It is quite obvious that the learned single Judge had not taken note of the principle of possessory title or the principle of law that a person who has been in long continuous possession can protect the same by seeking an injunction against any person in the world other than the true owner. It is also well settled that even the owner of the property can get back his possession only by resorting to due process of law.

Divergent Views are set out in Sopan Sukhdeo Sable v. Assistant Charity Commissioner, AIR 2004 SC 1801 also. They are the following:

  • first, a person in settled possession cannot be disposed by the owner except by recourse of law
  • second, a trespasser in possession cannot not seek injunction against the true owner.

In this case, a forceful postulation is posed-

  • A trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963, (even) against the true owner. If so, can’t the trespasser seek injunction as to possession, against the true owner?

In Sopan Sukhdeo Sable v. Assistant Charity Commissioner, AIR 2004 SC 1801, the appellants were the plaintiffs whose suit was rejected in terms of Order VII, Rule 11 of the Code of Civil Procedure. It is held in this decision as under:

  • “24. There are two different sets of principles which have to be borne in mind regarding course to be adopted in case of forcible dispossession. Taking up the first aspect, it is true that where a person is in settled possession of property, even on the assumption that he has no right to remain in property, he cannot be disposed by the owner except by recourse of law. This principle is laid down in Section 6 of the Specific Relief Act, 1963. That Section says that if any person is dispossession without his consent from immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. That a person without title but in “settled” possession – as against mere fugitive possession – can get back possession if forcibly dispossessed or rather, if dispossessed otherwise than by due process of law, has been laid down in several cases. It was so held by this Court in
    • Yashwant Singh v. Jagdish Singh, AIR 1968 SC 620,
    • Krishna Ram Mohate v. Mrs. Shobha Venkata Rao, (1989) 4 SCC 131 at p. 136;
    • Ram Rattan v. State of UP, (1977) 1 SCC 188, and
    • State of UP v. Maharaja Dharmender Prasad Singh, (1989) 2 SCC 505.
  • The leading decision quoted in these rulings is the decision of the Bombay High Court in
    • K. K. Verma vs. Union of India, AIR 1954 Bom 358.
  • 25. Now the other aspect of the matter needs to be noted. Assuming a trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963 can the trespasser seek injunction against the true owner?
  • This question does not entirely depend upon Section 6 of the Specific Relief Act, but mainly depends upon certain general principles applicable to the law of injunctions and as to the scope of the exercise of discretion while granting injunction.
  • In Mahadeo Savlaram Sheike vs. Pune Municipal Corporation, (1995) 3 SCC 33, it was held, after referring to Woodrofe on “Law relating to injunction: L. C. Goyal Law of injunctions:
    • David Bean Injunction Jayce on Injunctions and other leading Articles on the subject that the appellant who was a trespasser in possession could not seek injunction against the true owner.
  • In that context this Court quoted Shiv Kumar Chadha vs. MCD, (1993) 3 SCC 161, wherein it was observed that injunction is discretionary and that:
    • “Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court.”
  • 26. Reference was also made to Dalpat Kumar vs. Prahlad Singh (1992) 1 SCC 719 in regard to the meaning of the words prima facie case and balance of convenience and observed in Mahadeos case (supra) that:
    • “It is settled law that no injunction could be granted against the owner at the instance of a person in unlawful possession.”
  • 27. The question of forcible possession as claimed is also a matter which can be pressed into service by the parties before the trial Court and if raised the Court shall deal with it considering its relevance to the suit and accept it or otherwise reject the plea in accordance with law. We do not think it necessary to express any opinion in that regard.
  • 28. …. Looking into the nature of dispute it would be appropriate if the trial Court makes an effort to complete the trial within six months from the date of the judgment. The parties are directed to co-operate for disposal of the suit early within the stipulated time. The appeal is allowed to the extent indicated without any order as to costs.”

Injunction is Absolutely a Discretionary and Equitable Relief.

The Supreme Court in Premji Ratansey Shah v. Union of India, 1994-5 SCC 547, has held as under:

  • “Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.
  • 5. It is equally settled law that injunction would not be issued against the true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner.”

Possession is Good Against All But the True Owner

The principle that ‘possession is good against all but the true owner’ is stated in Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, referring Judicial Committee decision in Parry v. Clissold, (1907) AC 73, as under:

  • “17. In our judgment this involves an incorrect approach to our problem. To express our meaning we may begin by reading 1907 AC 73, to discover if the principle that possession is good against all but the true owner has in any way been departed from. 1907 AC 73 reaffirmed the principle by stating quite clearly:
    • “It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title.”

Following decisions also say – no injunction can be passed, in favour of a trespasser, against the ‘true owner’ of a property:

  • Lallu Yeshwant Singh v. Rao Jagdish Singh, AIR 1968 SC 620 (possession after the termination of the tenancy);
  • M.C. Chockalingam v. Manickavasagam (1974) 1 SCC 48;
  • Krishan Ram Mahale v. Mrs. Shoba Venkat Rao, (1989) 4 SCC 131;
  • Premji Ratansey Shah v. Union of India, 1994 (5) SCC 547;
  • Nagar Palika, Jind v. Jagat Singh, Advocate (1995) 3 SCC 426;
  • Tamil Nadu Housing Board v. A. Viswam, 1996 (8) SCC 259;
  • Ramesh Chand Ardawariya v. Anil Panjwani AIR 2003 SC 2508;
  • Gram Panchayat, Mundliyan, Tehsil Tohana v. Bawria, 1996(3) RCR (Civil) 349;
  • Gurcharan Singh v. District-Chief Agricultural Officer, Jalandhar, 1997(1) RCR (Civil) 1;
  • Sukhwant Singh vs Divisional Forest Officer; 2009(3) Law Herald (P&H) 2286, 2010-2 RCR(Civil) 394;
  • Mohini v. Thimmappa, 2015-4 Ker LT 759;
  • Lions Club of Thrikkakara v. Greater Cochin Development Authority, AIR 2017 Ker 77: 2017-2 Ker LT 158 (revocation of a licence).

If Title not Perfected by Adver. Posn, Can one eject a Trespasser After 6 Months

High Court differ, as pointed out in Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179.

Now it is settled that if one fails to exercise his option by filing a suit under Section 6 of the Specific Relief Act within six months, he is at liberty to file a suit to recover his possession (with or without declaration) by a regular suit for recovery of possession. It can be based on title or on his possession in assumed or presumed character of ownership (even if title not perfected by doctrine of adverse possession) on the principle that possession is good title against all the world but the rightful owner. See: Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179; Kanti Lal v. Smt. Shanti Devi, AIR 1997 Raj 230.

RECENT VIEW OF THE APEX COURT

  • Plaintiff who Failed to get Declaration on Title is Not in “Lawful Possession”; he is not entitled for injunction against the true owner.
  • Once the defendant is found to be the Rightful Owner, the argument that he Can Resume Possession only by Adhering “Due Process of Law” is to be “Rejected Outright“.

In Prahladji Chenaji v. Maniben Jagmalbhai, 2022-2 RCR (Civil) 395; 2022 SCC OnLine SC 258, our Apex Court made clear the scope of the issues arose for consideration as under:

  • “7. Therefore, the short question, which is posed for the consideration of this Court is, whether, in a case where the plaintiff has lost so far as the title is concerned and the defendant against whom the permanent injunction is sought is the true owner of the land, whether the plaintiff is entitled to a relief of permanent injunction against the true owner, more particularly, when the plaintiff has lost so far as the title is concerned and can thereafter the plaintiff be permitted to contend that despite the fact that the plaintiff has lost so far as the title is concerned, her possession be protected by way of injunction and that the true owner has to file a substantive suit claiming the possession.”

In this case the Court observed to the following effect: (See ‘End Notes’ below):

  • The plaintiff is not entitled to any injunction and/or protect his possession against the rightful owner, more particularly, when he fails to get the declaratory relief with respect to the title.
  • In a suit for permanent injunction to restrain the defendant from interfering with the plaintiff’s possession, the only thing the plaintiff will have to establish is that as on the date of the suit, he was in lawful possession of the suit property and the defendant has tried to interfere or disturb his possession (Anathula Sudhakar v. Buchi Reddy, (2008) 4 SCC 594. AIR 2008 SC 2033, relied on).
  • The plaintiff, who has failed to get any declaratory relief on title cannot be said to be in “lawful possession”. Only when the person seeking the relief is in lawful possession and enjoyment of the property, he is legally entitled to be in possession, and not to disposes him, except in due process of law.
  • The contention of the plaintiff that even if the plaintiff failed to get the declaratory relief and the suit is dismissed, once the plaintiff is found to be in possession, her possession cannot be disturbed except in due process of law and the only remedy available to the defendant would be ‘to file a substantive suit to get back the possession is noticed only to be rejected outright‘.
  • In Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, (2012) 5 SCC 370, it was held that the ‘due process’ or ‘due course’ condition was satisfied the moment the rights of the parties were adjudicated upon by a court of competent jurisdiction, and that it did not matter who brought the action to court.
  • In Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, the Court has approved the following findings of the High Court of Delhi in Thomas Cook (India) Ltd. Vs. Hotel Imperial (2006) 88 DRJ 545:
    • ‘In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not.’
  • Once the rights of the parties are adjudicated and the defendant is held to be the true owner, it can be said that due process of law has been followed and thereafter the plaintiff is not entitled to any permanent injunction against the true owner.

Kesar Bai v. Genda Lal – HC and SC Approached in Different Perspectives

Kesar Bai v. Genda Lal, 2022-10 SCC 217, arose from a suit seeking declaration of ownership and permanent injunction. The findings of the High Court were the following:

  • the plea of ownership claimed by the plaintiff based on a sale deed and the plea of adverse possession were contrary to each other;
  • the plaintiffs could not have been permitted to take both the pleas at the same time;
  • but, in view of the fact that the plaintiff was in possession of the suit land since the execution of the said sale deed, the plaintiff was entitled for injunction on the basis of his possession.

Setting aside the High Court judgment the Apex Court held as under:

  • “The possession/alleged possession of the plaintiffs could not have been protected by passing a decree of permanent injunction in favour of the plaintiffs”.

Logical Consequence of Prahladji Chenaji and Kesar Bai is Displeasing

In both Prahladji Chenaji v. Maniben Jagmalbhai, 2022-2 RCR (Civil) 395; 2022 SCC OnLine SC 258, and Kesar Bai v. Genda Lal, 2022-10 SCC 217, it is not specifically stated that-

  • (i) the true owner can resume possession using force, and
  • (ii) the suit for recovery by the true owner is barred.

In both these decisions, it was not required to pronounce – how the true owner could repossess his land from a trespasser in (settled) possession, if the true owner could not peacefully re-take it. It appears that he has to seek legal remedies by filing a civil suit itself, for, there is no summary-remedy known to law for recovery of possession (such as ‘revival of decree’ by a summary procedure and executing such a decree by the defendant).

Still, it may likely to interpret these decisions in away that their consequent natural outcome is the following:

  • The defendant (rightful owner) need not go for a further suit, for recovery, under ‘due process’ doctrine.

Relevant Considerations as to Granting Injunction Against the True Owner

In Shiv Kumar Chadha v. Municipal Corporation of Delhi, (1993) 3 SCC 161, with regard to ordering temporary injunction, a Three Judge Bench of our Apex Court, held as under:

  • “A party is not entitled to an order of injunction as a matter of course. Grant of injunction is within the discretion of the court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo.”

Observing that it is a settled law that injunction would not be issued against the true owner, it is held in Premji Ratansey Shah v. Union of India, 1994 (5) SCC 547, as under:

  • “The said sale is a void sale and the petitioners, therefore, cannot derive any interest under the agreement of sale to resist the possession of the lawful owner nor could the declaration sought for be given. The question, therefore, is whether an injunction can be issued against the true owner. Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.”

Relevant considerations as to granting an injunction in favour a trespasser, against the true owner, are the following (as adumbrated in Sopan Sukhdeo Sable v. Assistant Charity Commissioner, AIR 2004 SC 1801):

  • (i) General principles applicable to the law of injunctions,
  • (ii) Discretion exercised by the court while granting injunction,
  • (iii) Principles analogous to Sec. 6 of the Sp. Relief Act which expressly lays-down that a trespasser, ousted otherwise than on due process of law, can seek (even) restoration of possession, even against true owner.
  • (iv) The doctrine that ‘possession is good against all but the true owner‘.

The difference between the recovery of possession of a rank trespasser and  that of a lawful occupant that turns unlawful on effluxion of time, merits consideration. Similarly, the recovery of possession from an illegal occupant of a ‘public land’ vested with the Government also requires a special consideration.

Conclusion

It is beyond doubt –

  • A person in settled possession (even if he is a trespasser) cannot be ejected by force, otherwise than on due process of law, by the rightful owner.
  • After a (previous) Court Finding that the possession of the plaintiff is not lawful, it is not proper to grant an injunction in his favour disregarding the ‘finding’.

There remains something unexplained in between the two propositions. That is, when no injunction can be granted in favour of a person in settled possession (on the finding that he is trespasser), the resultant situation would indirectly permit the true owner to take the law in his hands and to use force to eject the trespasser.

It goes without saying that the law cannot endorse the view that the rightful owner is legally entitled to eject the trespasser, otherwise than on due process of law, when the trespasser is in settled possession.

Therefore, cogent legal principles have to be evolved and an authoritative pronouncement has to be penned-down, taking note of conflicting views on this subject, and reconciling the apparent divergent views.

End Notes:

Our Apex Court held in Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai: 2022-2 RCR (Civil) 395; 2022 SCC OnLine SC 258 (M.R. Shah, B.V. Nagarathna, JJ.) as under:

  • “9. ….. However, once the dispute with respect to title is settled and it is held against the plaintiff, in that case, the suit by the plaintiff for permanent injunction shall not be maintainable against the true owner. In such a situation, it will not be open for the plaintiff to contend that though he/she has lost the case so far as the title dispute is concerned, the defendant – the true owner still be restrained from disturbing his/her possession and his/her possession be protected. ….. An injunction cannot be issued against a true owner or title holder and in favour of a trespasser or a person in unlawful possession.
  • 9.3 In the case of A. Subramanian Vs. R. Pannerselvam, (2021) 3 SCC 675 [AIR  2021 SC 821], it is observed by this Court that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. Therefore, the plaintiff is not entitled to any injunction and/or protect his possession against the rightful owner, more particularly, when he fails to get the declaratory relief and the dispute with respect to the title comes to an end.
  • 10. Now, so far as the reliance placed upon the decision of this Court in the case of Anathula Sudhakar (supra) by the learned Advocate appearing on behalf of the original plaintiff in support of his submission that in a suit for permanent injunction to restrain the defendant to interfere with the plaintiff’s possession, the only thing the plaintiff will have to establish is that as on the date of the suit, he was in lawful possession of the suit property and the defendant has tried to interfere or disturb his possession is concerned, what is observed by this Court in paragraph 15 is the “lawful possession” of the plaintiff. In the present case the plaintiff, who has failed to get any declaratory relief and the defendant No.1 is held to be a true and absolute owner on the basis of the registered sale deed on payment of full sale consideration thereafter the plaintiff’s possession cannot be said to be “lawful possession”. Therefore, the plaintiff is not entitled to any permanent injunction against the true owner in the instant case.
  • “11.1 … Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to disposes him, except in due process of law.
  • 12. Now, so far as the submission on behalf of the plaintiff that even if the plaintiff failed to get the declaratory relief and relief for cancellation of registered sale deed and her suit for the said reliefs came to be dismissed and the plaintiff is found to be in possession and therefore, the only remedy available to the defendant No. 1 would be to file a substantive suit to get back the possession is noticed only to be rejected outright. It is the contention on behalf of the plaintiff that once the plaintiff is found to be in possession, her possession cannot be disturbed except in due process of law and the defendant No.1 though may be the true owner has to file a substantive suit for recovery of possession. While considering the aforesaid submission, the decision of this Court in the case of Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, (2012) 5 SCC 370 is required to be referred to. What is meant by due process of law has been explained by this court in paragraph 79, which reads as under:-
    • “79. Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity to the defendant to file pleadings including written statement and documents before the court of law.
    • It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated upon by a competent court.”
  • In the said decision, this Court has approved the following findings of the High Court of Delhi in Thomas Cook (India) Ltd. Vs. Hotel Imperial (2006) 88 DRJ 545:-
    • “28. The expressions ‘due process of law’, ‘due course of law’ and ‘recourse to law’ have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed ‘forcibly’ by the true owner taking law in his own hands. All these expressions, however, mean the same thing—ejectment from settled possession can only be had by recourse to a court of law.
    • Clearly, ‘due process of law’ or ‘due course of law’, here, simply mean that a person in settled possession cannot  be ejected without a court of law having adjudicated upon his rights qua the true owner.
    • Now, this ‘due process’ or ‘due course’ condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the ‘bare minimum’ requirement of ‘due process’ or ‘due course’ of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the ‘recourse to law’ stipulation stands satisfied when a judicial determination is made with regard to the first party’s protective action. Thus, in the present case, the plaintiff’s failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law.”
  • 12.1 Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand and once the rights of the parties are adjudicated and the defendant No.1 is held to be the true owner on the basis of the registered sale deed and on payment of full sale consideration, it can be said that due process of law has been followed and thereafter the plaintiff is not entitled to any permanent injunction against the true owner.
  • 13. In view of the above discussion and for the reasons stated above, all the Courts below have erred in granting permanent injunction in favour of the plaintiff and against the defendant No. 1, who is the true owner. After having held that the plaintiff had no title and after dismissing the suit qua the cancellation of the registered sale deed and the declaration, the plaintiff is not entitled to relief of permanent injunction against defendant No.1 – the true owner.”
  • Notes:
    • In the decision, Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, (2012) 5 SCC 370, what was considered was the principles of law as regards the ‘possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant’; and not ‘substantive possession’.
    • The principles that emerge in this case are “crystallized” in para 101 of the decision as under:
    • “1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
    • 2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.
    • 3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.
    • 4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.
    • 5. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.”
  • In A. Subramanian v. R. Pannerselvam, 2021-3 SCC 675, the Apex Court held as under:
    • “25. …. But coming to the facts in the present case the present suit giving rise to this appeal, was not a suit for declaration of title and possession rather the suit was filed for injunction. As noted above, the High Court has given cogent reasons for holding that the suit filed by the plaintiff for injunction was maintainable without entering into the title of the plaintiff in facts of the present case specially in view of the previous litigation which was initiated at the instance of defendant No. 1 where he lost the suit for declaration and recovery of possession of the same property.
    • 26. We do not find any error in the view of the High Court that it was not necessary to enter into the validity of Exhibits A-1 and A-2 and the suit for injunction filed by the plaintiff deserved to be decreed on the basis of admitted and established possession of the plaintiff. We, thus, do not find any error in the judgment of the High Court allowing the second appeal filed by the plaintiff by setting aside the judgment of the First Appellate Court and restoring that of trial court.”

Read in this Cluster  (Click on the topic):

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws/ Transfer of Property Act

Evidence Act – General

Contract Act

Easement

Stamp Act

Will

Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

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