1991 PLP 1230 (MLD)

Petition of revision arises out of a suit for declaration of title and perpetual injunction. The trial Court decreed the suit on 22-1-1990. In appeal, decree of the trial Court was affirmed on 14-1-1991. The trial Court had decreed that "plaintiffs are in possession of disputed land and defendants arc restrained not to interfere in the possession of plaintiffs illegally". Lower appellate Court agreeing with it held-- "In view of evidence on record, it is fully established that disputed property is in the possession of plaintiffs/respondents and they have purchased it from Aurangzeb son of Sultan Khan. Although Exh. P.1 is an unregistered document and it does not create any title but possession of plaintiffs cannot be disturbed except in due course of law." Dispute that led to the litigation was as follows. Land in Khasra Nos.265, 266 measuring 1 Kanal, 10 marlas situate in revenue estate Mari of Tehsil Fateh Jang, was in possession of Sultan Khan and Mst. Bhag Bhari as "qabiz" without payment of rent on account of assertion of ownership rights. It was owned by numerous persons including Sarfraz etc. who were defendants in the suit. Sultan Khan was dead. Aurangzeb is his son. Mst. Bhag Bhari is wife of Aurangzeb. By an unregistered deed executed on 26-3-1978, Aurangzeb sold his possessory rights to Abdul Aziz and his brother Abdul Karim for a consideration of Rs.3,000 and transferred actual possession of the land in dispute to them. The purchasers made constructions on the land in their possession. Later they brought a civil suit against Sarfraz etc. for a declaration that they were owners in possession of the land comprised in Khasra Nos. 265, 266 alongwith constructions on them and the defendants having no right or interest in the land or the constructions were not authorised to cause interference therewith. The defendants resisted the suit. It was stated that the plaintiffs had constructed houses on an area of 4 marlas only out of the two Khasra numbers, 4/5 years ago and the rest of the land in the two khasras was in their own cultivation. As for constructions by the plaintiffs, defendants took the stand that those were made without their permission. Necessary issues having been settled and evidence taken, the Courts below found that the plaintiffs possessed the land in dispute alongwith the constructions raised on it by them and their possession could not be interfered with except in due process of law. As for ownership of the land, it was held that it belonged to the defendants alongwith its other recorded owners. It was conceded at the hearing that the plaintiffs were in possession of the land in dispute; constructions on it were raised by them and the defendants were its co-owners alongwith its other recorded co-owners. Upon the admitted and otherwise proved facts, it was argued that the plaintiffs as clear trespassers could not avail of equitable relief of injunction as against defendants who had legal title to the land in dispute. Cases in AIR 1935 Lahore 547 and PLD 1958 Dacca 435 were relied upon. Cases relied upon were not helpful to the point requiring decision in the case. The correct rule to apply in such a case is that laid down in Karthiyayani Amma v. Govindan AIR 1980 Kerala 224 which summed it up as:- "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. 1n this case, plaintiff is found to be in 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." In Ghulam Muhammad v. Ch. Khushi Muhammad and another 1985 C L C 457, similar views were expressed by me when it was observed:- "General purpose of the law is that regardless of actual condition of the title to or right of possession of the property, the party actually in peaceful and quiet possession shall not be turned out by strong violence or terror. There is no provision of law which empowers by force or show of force to evict a person in actual possession of the immovable property." In Ponnusami Mudaliar and another v. Pappamal Annachatram and others AIR 1958 Madras 497, the Court took the view that:- "According to the majority the interest of a person in possession is heritable and transferable. It is capable of being disposed of by deed or will or by execution sale. Thus, even before mere possession is converted by prescription into a right of ownership, it is in itself aright which according to the present law of India is protected and remedies are provided as under sections 9 and 42 of the Specific Relief Act." Therefore, the learned Courts below did not err in granting injunctive relief to the plaintiffs for protection of their possession from invasion by the defendants except in accordance to the dictates of law and this, in my opinion, was a correct approach to resolve the point at issue before them. In this view, revision petition has no substance and is dismissed summarily. A.A./S-906/L?????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.