Perpetual Injunction when Granted – Section 38 | Specific Relief Act



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2. Coparcenary property—Injunction:

On aspects of alienation of coparcenary property the Supreme Court laid down that:

“It is true that a coparcener takes by birth an interest in the ances­tral property,, but he is not entitled to separate possession of the coparcenary estate. His rights are not independent of the control of the Karta. It would be for the Karta to consider the actual pressure on the joint family estate. It would be for him to foresee the danger to be averted. And it would be for him to examine as to how best the joint family estate could be beneficially put into use to sub-serve the interests of the family. A coparcener cannot interfere in these acts of management. Apart from that a father— Karta in addition to the aforesaid powers of alienation has also the special power to sell or mortgage ancestral property to discharge his antecedent debt which is not tainted with immorality. If there is not such need or benefit, the purchaser takes risk and the right and interest of coparcener will remain unimpaired in the alienated property. No doubt the law con­fers a right on the coparcener to challenge the alienation. These are two distinct rights. One is the right to claim a share in the joint family estate free from unnecessary and unwanted encumbrance. The other is a right to interfere with the act of management of the joint family affairs. The coparcener cannot claim the latter right and indeed, he is not entitled for it. Therefore, he cannot move the Court to grant relief by injunction restraining the Karta from alienating the coparcenary property…. The provisions of Section 38 (Specific Re­lief Act) have to be read along-with Section 41. Section 41 provides that an injunction cannot be granted when a party could obtain an efficacious relief by any other usual mode of proceedings (except in case of breach of trust). The coparcener has adequate remedy to impeach the alienation made by the Karta. He cannot, therefore, move the Court for an injunction restraining the Karta from alienat­ing the coparcenary property.”

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3. Determination of:

The Supreme Court on aspects of determination of marks of goods observed has follows:

“It is, therefore, clear that in order to come to the conclusion whether one mark is deceptively similar to another, the board and essential features of the two are to be considered. They should not be placed side by side to find out if there are any differences in the design and if so, whether they are of such character as to prevent one design from being mistake for the other. It would be enough if the im­pugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him. In this case, we .find that the packets are practically of the same size, the colour scheme of the two wrappers is almost the same and design on both though not identical bears such a close resemblance that one can easily be mistaken for the other Anyone in our opinion who has a look at one of packets today may easily mistake the other if shown on another day as being the same article which he had seen before. If one was not careful enough to note the peculiar features of the wrapper on the plaintiffs’ goods, he might easily mistake the defen­dants’ wrapper for the plaintiffs if shown to him some time after he had seen the plaintiffs’. After all, an ordinary purchaser is not gifted with the powers of observation of a Sherlock Holmes. We have there­fore, no doubt that the defendants’ wrapper is deceptively similar to the plaintiffs’ which was registered.”

4. Discretion of Court:

The admitted facts in the present case which will put the Court on its guard, while exercising its discretion to grant a declaration or injunction are as follows:

(1) That the plaintiff-respondent served the institution for a short period of two yeas only i.e., from 1964 to 1966 and thereafter he was bereft of all his powers and did not work in the college for a single day.

(2) That if the declaration sought for or the injunction is granted to the plaintiff-respondent the result would be that he would have to be paid his full salary with interest and provident fund for full nine years i.e., from 1966 to 1975, even though he had not worked in the institution for a single day during this period.

(3) That consequent upon the declaration the appellant would have to pay a very huge amount running into a lakh of rupees or perhaps more as a result of which the appellant and the institu­tion would perhaps be completely wiped out and this would un­doubtedly work serious injustice to the appellant, because it is likely to destroy its very existence.

(4) It is true that the plaintiff-respondent is not at fault, but the stark realities, hard facts and extreme hardship of the case speak for themselves.

(5) It appears that by virtue of the interlocutory orders passed by this Court, the appellant has already deposited Rs. 9,000/- be­fore the High Court which was to be withdrawn by the respon­dent after giving security, and a further sum of Rs. 9,100/- being the salary of 13 months has also been deposited by the appel­lant before the Trial Court under the orders of this Court. It is also stated by the Counsel for the appellant that the appellant has deposited Rs. 3.000/- more. It is felt that in the circum­stances the respondent may be permitted to keep these amounts with him and he will not be required to refund the same to the appellant. The amount deposited in the high Court, if not with­drawn by the respondent may now be withdrawn by him without any security and if he has already withdrawn the amount he will be discharged from the security. This will vindicate the stand of the respondent and compensate him for any hardship that may have been caused to him by the order terminating his services, and will also put a stamp of finality to any further litigation be­tween the parties.

In view of these special and peculiar circumstances of this case, it will not be a proper exercise of discretion to grant a decree for declaration and injunction in favour of the respondent.

5. Equitable relief:

A person who comes to the Court with forged documents cannot claim equitable relief of injunction and cannot be helped.

6. Eviction:

In the present case the Court has found the plaintiff as having failed in proving his title. Nevertheless, he has been found to be in settled possession of the property. Even the defendant failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff. The Trial Court therefore left the question of title open and pro­ceeded to determine the suit on the basis of possession, protecting the established possession and restraining the attempted interference there­with. The trial Court and the High Court have rightly decided the suit. It is still open to the defendant-appellant to file a suit based on his title against the plaintiff-respondent and evict the latter on the former establishing his better right to possess the property.

7. Forcible dispossession:

The law forbids forcible dispossession, even with the best of title.

The Supreme Court while holding that a tenant on the expiry of the lease cannot be said to continue in “lawful possession” of the property if such a possession is not otherwise statutorily protected, however, observed:

“Section 6 of the Specific Relief Act does not offer such protection, but only, as stated earlier, forbids forcible dispossession, even with the best of title.”

“Lawful possession is not litigious and must have some foundation in a legal right to possession of the property which cannot be equated with a temporary right to enforce recovery of the property in case a person is wrongfully or forcibly dispossessed from it.

We are clearly of opinion that judicial possession is possession pro­tected by law against wrongful dispossession but cannot per se al­ways be equated with lawful possession.”

There can, thus, be no forcible dispossession of a person who had such juridical possession and the landlord can be restrained from resorting to high-handed acts aimed at forcible dispossession, otherwise than in ac­cordance with law.

8. Forcible possession:

In India persons are not permitted to take forcible possession, they must obtain such possession as they are entitled through a Court.

9. Infringement of trademark:

Supreme Court in the instant case brought out the distinction between an action for infringement of trade­mark and an action for passing off in the following manner:

“While an action for passing off is a Common Law remedy being in substance an action for deceit, that is, a passing off by a person of his own goods as those of another, that is not the gist of an action for infringement. The action for infringement is a statutory remedy conferred on the registered proprietor of a registered trademark for the vindication of ‘the exclusive right to the use of the trade-mark in relation to those goods’ (Vide Section 21 of the Act). The use by the defendant of the trade-mark of the plaintiff is not essential in an action for passing off, but is the sine qua non in the case of an action for infringement. No doubt, where the evidence in respect of passing off consists merely of the colourable use of registered trade­mark, the essential features of both the actions might coincide in the sense that what would be a colourable imitation of a trade-mark in a passing off action would also be such, in an action for infringe­ment of the same trademark. But there the correspondence between the two ceases. In actions for infringement, the plaintiff must, no doubt, make out that the use of the defendant’s mark is likely to deceive, but where the similarity between the plaintiffs and the defendant’s mark is so close either visually, phonetically or other­wise and the Court reaches the conclusion that there is an imitation, no further evidence is required to establish that the plaintiffs rights are violated. Expressed in another way, if the essential features of the trade-mark of the plaintiff have been adopted by the defendant, the fact that the get-up, packing and other writing or marks on the goods or on the packets in which he offers his goods for sale show marked differences, or indicate clearly a trade origin different from that of the registered proprietor of the mark would be immaterial, whereas in the case of passing off, the defendant may escape liabil­ity if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff.

10. Injunction:

A co-parcener had no right to maintain a suit for per­manent injunction restraining manager or Karta from alienating the co- parcenery property and the co-parcener has right only to challenge alien­ation of co-parcenery property and recover back the property after alien­ation has come into being. Thus the principle laid down by the Supreme Court is founded on right of manager or karta of an undivided Hindu family to alienate co-parcenery property and right of a coparcener to impeach the alienation made by the karta.

A suit by coparcenerys for perpetual injunction restraining karta of a Joint Hindu family from alienating the joint family property in pursuance of an agreement of sale is not maintainable.

A suit for injunction cannot be converted into a suit for probate of will.

A suit for permanent injunction by a co-parcener against the father for restraining him from alienating the house property belonging to the joint Hindu family for legal necessity was not maintainable because the coparcener has got the remedy of belonging the sale and getting it set aside in suit subsequent to the completion of the sale.

In case of joint plaint seeking relief against the defendant, it was held that the question of interse title amongst the plaintiff is irrelevant for grant­ing relief against defendant.

In the absence of any specific pleading regarding prejudice or detri­ment to the defendants-respondents, the plaintiffs have every right to use the common land and the common channel. The plaintiffs-appellants were claiming their right on the basis of admitted co-ownership rights which in­cludes unrestricted user, unlimited in point of disposition, and the High Court was not justified in holding that the plaintiffs’ right to take water was not acquired by any grant from the defendants-respondents or from any other sale-deed. The right of co-ownership presupposes a bundle of rights which has been lost sight of by the High Court.

The only restriction put by law on the common user of land by a co­-owner is that it should not be so used as to prejudicially affect or put the other co-owner to a detriment.

The defendants indeed are adopting a ‘dog in the manger’ policy. Al­though they do not stand to be prejudiced or put to any detriment on their own pleadings, they seek to prevent the plaintiffs from irrigating their lands through the common channel from their exclusive well. There is no other source of irrigation for the plaintiffs.

In the present case, it is not disputed that the metalled road was dedi­cated to the public. The inference that the side lands are also included in the public way is drawn much easily as the said lands are between the metal road and the drains admittedly maintained by the Municipal Board. Such a public pathway vests in the Municipality, but the Municipality does not own the soil. It has the exclusive right to manage and control the sur­face of the soil and “so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street”. It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers. Subject to the rights of the Municipality and the public to pass and repass on the highway, the owner of the soil in general remains the occupier of it and, therefore, he can maintain an action for trespass against any member of the public who acts in excess of his rights.

If that is the legal position, two results flow from it, namely, (1) the Municipality cannot put up any structures on the public pathway which are not necessary for the maintenance or user of it as pathway, (2) it cannot be said that the putting up of the structures for installing the statue of Ma­hatma Gandhi or for Piyo or library are necessary for the maintenance or the user of the road as a public highway. The said acts are unauthorised acts of the Municipality. The plaintiff, who is the owner of soil, would certainly be entitled to ask for an injunction restraining the Municipality from acting in excess of its rights. But the plaintiff cannot ask for posses­sion of any part of the public pathway, as it continues to vest in the Municipality.

In this case, since the acquisition proceedings have become final, then necessarily possession has to be taken by the Corporation for the public purpose for which the acquisition was made. The orders of eviction were passed by due course of law and had become final. Thereafter no right was created in favour of the appellants to remain in possession. Their posses­sion is unlawful and that, therefore, they cannot seek any injunction against the rightful owner for (sic) evicting them.

Long period of possession of suit land could be ground for grant of permanent injunction against interference.

Since there is not even a whisper about the plaintiff filing a suit earlier in the plaint in this case, it is clear that plaintiff did not come to the Court with clean hands. It is well known that injunction which is an equitable relief would not be granted to a person who does not come to the Court with clean hands, and who is guilty of suppression of facts.

Suit for injunction cannot be converted into suit for probate of Will because Order of Court to adduce evidence to prove the execution of Will is beyond the scope of the proceedings.

Suit for permanent and mandatory injunction was filed by agent of kerosene/L.D.O. Seeking relief that I.B.P. Company be restrained from ter­minating his agency. Suit liable to be dismissed because it was found that Government had decided to withdraw that scheme under which plaintiff was appointed agent.

The clear finding in the trial as also the Appellate Court is that the plaintiffs have grown the trees being in possession from 1946. The plain­tiffs would, therefore, be entitled to appropriate the trees after removal and the State would not be entitled to raise any claim to the plantations. Six months’ time should be allowed to the plaintiffs to cut and remove the standing trees from the six kanals of land appertaining to Survey and they should deliver vacant possession of that property to the State through its public officers on or before April 1 1984, as agreed to by their Counsel.

This appeal is disposed of with the aforesaid direction. There would be no order for costs.

The mere suit for injunction cannot be converted into a suit for proba­tion of a will where at the will is to be proved. If the will is to be proved according to law, it has to be by way of probate in the Court having compe­tency and jurisdiction according to the procedure provided under the In­dian Succession Act. That procedure cannot be converted in a suit for mere injunction as a probate suit and direct the parties to adduce evidence, be it primary or secondary evidence as the circumstances may warrant. The High Court has committed error of law and jurisdiction in directing addiction of secondary evidence in the suit for injunction to prove the will.

The mere suit for injunction cannot be converted into a suit for proba­tion of a Will whereat the Will is to be proved. If the will is to be proved according to law, it has to be by way of probate in the Court having compe­tency and jurisdiction according to the procedure provided under the In­dian Succession Act, 1925.

That procedure cannot be converted in a suit for mere injunction as a probate suit and direct the parties to adduce evi­dence, be it primary or secondary evidence as the circumstances may war­rant. The High Court has committed error of law and jurisdiction in directing adduction of secondary evidence in the suit for injunction to prove they will alleged to have been executed by respondent.

The plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property. Once it is accepted, as the Trial Court and the first Appellate Court have done, that the plaintiff was in possession of the property ever since 1947 then his possession has to be protected as against interference by some­one who is not proved to have a better title than himself to the suit prop­erty. On the findings arrived at by the fact finding Courts as regards posses­sion, the plaintiff was entitled to the relief for injunction.

The plaintiff can on the strength of his possession resist interference from the persons who had no better title than himself to the suit property. In the case, the Apex Court having found that the plaintiff failed to establish his title to the suit property but the plaintiff was found to be in possession on the date filing of the suit granted injunction in favour of the plaintiff.

The 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. Even the owner of the property can get back his possession only by resorting to due process of law.

The suit for injunction cannot be dismissed on the ground that the relief of declaration of title and possession has not been specifically men­tioned in the plaint.

Where a suit for permanent injunction was filed and it was based on long and exclusive possession and not on title and the defendant also had not raised a plea that he has title to the property, dismissing the suit on the ground that the defendant has proved his title following the doctrine of ‘possession follows title’, cannot be sustained.

Where suit for declaration of title and permanent injunction was filed claiming title to television serial but defendant was shown as producer in titles of each episode of the serial to which objection was raised by the plaintiff but did not take any action, the plaintiff had failed to prove that serial was made at his cost and therefore, cannot be allowed injunction claiming copyright.

Where temple authorities intended to install Hundi in temple precincts which was likely to adversely affect the right of Archak to offerings injunc­tion granted against installation of Hundi.

11. Juridical possession:

The erstwhile tenants or tenants by suffer­ance cannot be equated with such persons who may be in lawful posses­sion or mere trespassers since the origin of possession in the case of an erstwhile tenant will always be lawful and the possession of such a tenant after the expiry of the term is termed as juridical possession for want of consent of the lessor and such possession can be protected as against forcible dispossession or dispossession otherwise than by due process of law.

12. Jurisdiction of Court:

The pecuniary award of damages is consequential to the adjudication of the dispute and the result therein is inciden­tal to the determination of the case by the Court. The pecuniary jurisdiction of the Court of first instance should not impede nor impose a bar to award damages beyond its pecuniary jurisdiction.

Therefore, the pecuniary juris­diction is not and should not stand an impediment for the Court of first instance in determining damages as the part of the adjudication and pass a decree in that behalf without relating the parties to a further suit for dam­ages. This procedure would act as a check on abuse of the process of the Court and adequately compensate the damages of injury suffered by the defendant by act of Court at the behest of the plaintiff.

13. Letter of credit:

The Supreme Court on aspects of letter if credit held as follows:

“A bank issuing or confirming a letter of credit is not concerned with the underlying contract between the buyer and seller. In view of the banker’s obligation under an irrevocable letter of credit to pay, his buyer-customer instruct him not to pay. The opening of a confirmed letter of credit constitutes a bargain between the banker and the vendor of the goods which imposes on the banker an absolute obli­gation to pay. The same considerations apply to a bank guarantee. A letter of credit sometimes resembles and is analogous to a con­tract of guarantee. A bank which gives a performance guarantee must honour that guarantee according to its terms.”

14. Mandatory injunction:

There is justification in the reasoning of the first appellate Court for having arrived at such a conclusion, since it is a case that comes to be proved that the first defendant in the suit is respon­sible for heaping the mud and stones inside the well when he depends the same for his benefits during 1970-71 and it is he who is responsible to remove them also without causing obstruction to the flow of water thereby hindering the possibilities of the co-owners and therefore it is only proper to have issued a mandatory injunction requiring the first defendant to re­move the debris heaped inside the well, and therefore, High Court is not able to find any valid or tangible reason to cause its interference into the well considered and merited judgment passed by the lower appellate Court.

15. Peaceful possession:

The disputed questions of title are to be decided by due process of law, but the peaceful possession is to be pro­tected from the trespasser without regard to the question of the origin of the possession. When the defendant fails in proving his title to the suit land the plaintiff can succeed in securing a decree for possession on the basis of his prior possession against the defendant who has dispossessed him. Such a suit will be founded on the averment of previous possession of the plain­tiff and dispossession by the defendant.

16. Permanent injunction:

The appellant is entitled to the decree for permanent injunction on the basis of the possessory title against the re­spondents who have no title over the land nor are in possession of the same.

The fact that the plaintiffs have been in possession of the suit schedule land since long time has been found in favour of the plaintiffs by the Trial Court as well as the High Court and that fact is not in dispute. Moreover, the fact that the land was originally proposed for acquisition on the footing that it was private land and that the plaintiffs did not apply for nor were granted occupancy rights under the provisions of Inams Abolition Act is also not in dispute.

The High Court, while expressing doubt as regards the exact location of the land covered by the sale deeds of 1927 and 1928 observed that no proprietary rights can be claimed in respect of the land kept apart for the use of the villagers unless the grant is made by the Government. The High Court further held that the requisition sent by the panchayat to acquire the land in question cannot legally operate as estoppel or legal bar against the panchayat and it was entitled to rectify its mistake.

The High Court referred to the Government notification dated 27.12.1961 in which open sites in Gauthana area vested in the village panchayats. The High Court then ob­served that land vested in the Government under the Inams Abolition Act, cannot be divested unless occupancy rights were granted under that Act and that the Trial Court virtually ignored the provisions of the Inams Aboli­tion Act.

It was also held that the burden which lies on the plaintiffs to show that they had become owners of the alleged portions in the Gramathana area even after vesting has not been discharged. The High Court ultimately held that the possession of the plaintiffs of some portions of the Gramathana area cannot be considered as lawful and therefore, they were not entitled to an injunction”.

The High Court, by an erroneous legal approach, disturbed the order of “-3 injunction granted by the Trial Court. This is a case in which plaintiffs have been in long standing possession and there is at least a serious dispute as to title Inter alia, it is being contended by the appellants that neither the Mysore Inams Abolition Act or the notification issued under the Mysore Village Panchayats Act have the effect of vesting the funds in question in Government or the Panchayat.

At one stage, the Panchayat itself was not sure of the right, title and interest over the land in question. It is nobody’s case that the appellants plaintiffs are rank trespassers. In these circumstances irrespective of whether the plaintiffs proved their title to the hilt, they cannot be dispossessed by force on the basis of unilateral deci­sion taken by the respondent-Panchayat or other authorities. That there was a move to dispossess the plaintiffs forcibly is an admitted fact such a step ought not to have been taken without observing due process of law. The minimum that is inspected of the Panchayat was to put the plaintiffs in notice and their version.

Whatever procedure is prescribed under the provi­sions of the Village Panchayats Act or other statutory enactments for evict­ing unauthorised occupants of land should have been followed. The very fact the such procedure has not been followed or even the principles of natural justice were not observed before taking steps to oust the plaintiffs from possession is itself a ground to grant an injunction. On the facts of the case, there is no real need to enter into an elaborate discussion on the question of title.

The expression of views on the aspect of title either by the High Court or by the Trial Court was unnecessary. That question should be kept open. However, it must be made clear that the injunction granted by the Trial Court would ensure to the benefit of the plaintiffs till appropriate order is passed and action is taken pursuant thereto by the Panchayat in accordance with law.

17. Perpetual injunction:

In the instant case, sale-deed was executed by vendor in which there was a clear recital that appellant-purchaser was in possession of disputed property and vendee, respondent’s predecessor may obtain possession from appellant. Appellant filed suit to restrain respon­dent from interfering with his possession of disputed land. Respondent con­tended that his predecessor-in-title had ? purchased the said land. Suit for possession not filed by respondent, but said suit filed by appellant. Trial Court and Appellate Court found appellant in possession and perfected title by prescription. Judgments and decrees of Courts below set aside by High court on the ground that appellant had not proved his adverse possession as against respondent. Mere continuous possession did not constitute ad­verse possession. Courts below not right in holding that he was in adverse possession. Admission in title-deed obtained by respondent himself and concurrent finding recorded by Courts below that appellant was in posses­sion, injunction to follow. Thus, Trial Court and Appellate Court rightly granted perpetual injunction. Therefore, High Court was not right in reversing that finding.

It is not in dispute that though the term of the previous Society Com­mittee expired on March 31, 1966, elections could not be held for one reason or the other. As a consequence at the pain of the entrustment of the management to the third agency, elections came to be held on June 9, 1996, which proved to be an abortive attempt. Consequent thereon, com­plaint was made to the Registrar in Form No. 7 on June 12, 1996. An enquiry appears to have been held by the Registrar which failed in the pro­cess from legal perspective but the report was submitted on June 19, 1996. In the meanwhile, application was filed for perpetual injunction.

With a view to shorten the litigation, the appropriate course would be as under:

The Civil Court is directed to appoint an Advocate as a commissioner. The Advocate-Commissioner would take all the members of the Society existing as on 14th May, 1996 as valid members. He should conduct the elections of afresh in accordance with the procedure prescribed under the bye-laws of the Society.

It is settled law that the person who purchases the property in a Court auction-sale, gets title to the property by sale certificate issued by the Court as true owner and after confirmation of the sale, he gets possession thereof. In view of the fact that plaint Schedule property was delivered to auction- purchaser. He lawfully came into possession and the same was delivered in turn to the plaintiffs. Non-consideration of the material evidence is a sub­stantial question of law.

Under these circumstances, the perpetual injunction granted by the High Court in the second appeal is not vitiated by any error of law much less substantial question of law warranting interference.

18. Possession from trespasser:

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 filmsy 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 cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.

19. Possession of land:

A person in possession of land in 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. When the facts disclose no title in either party, possession alone decides. The Court quoted Left’s maxim ‘Possessio contra owners valet praeter eur cut ius sit possessionis (He that hath possession hath right against all but him that hath the very right)” and said. “A defendant in such a case must show in himself or his predecessor a valid legal title, or probably a posses­sion prior to the plaintiffs and thus be able to raise a presumption prior in time”

20. Possession of trespasser:

It is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. The ‘settled possession’ must be (i) effective (ii) undisturbed and (iii) to the knowledge of the owner or without any attempt and conceal­ment by the trespasser. The phrase settled possession does not carry any special charm of magic in it, nor is it a ritualistic formula which can be confined in a strait-jacket.

21. Possession without title:

A person in possession though without title, can resist interference from another who has no better title than him and get injunction.

22. Possession:

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.

23. Right of Karta:

It is well settled that no injunction at the hands of a coparcener can be issued against the Karta of the Joint Hindu Family restraining him from alienating the coparcenary property. Even though a coparcener has an interest in the coparcenary property by birth, but he is not entitled to separate possession of the same unless a partition takes place. The Karta of a Joint Hindu Family has a right to manage the Joint Hindu Family property. That right to manage the property also includes the right to sell or mortgage ancestral property if the legal necessity so arises.

24. Right of passage:

In the case of an ordinary highway running be­tween fences, although it may be of a varying and unequal width, the right of passage or way prima facie, and unless there be evidence to the con­trary, extends to the whole space between the fences and the public are entitled to the entire of it as the highway and not confined to the part which may be metalled or Kept in order for the more convenient use of carriages and foot-passengers.

Adverting to the open strips of land on the sides of the road, the learned Judge observed:

“…… as Lord Tenterden observed in Rex v. Wright, (1832) 3 Á & Ad 681. The space at the sides’ (that is of the hard road) is also neces­sary to afford the benefit of air and sun. If trees and hedges might be brought close up to the part actually used as road it could not be kept sound.”

These observations indicate that the fact that a part of the highway is used as the actual road does not exclude from it the space at the sides of the road. Suhrawardy, J., in Anukul Chandra v. Dacca Dt. Board, AIR 1928 Cal 485, after considering the relevant English decisions on the subject, summarized the English view thus:

“The expression ‘road’ or ‘highway’ has been considered in many cases in England and it seems that the interpretation put there is not confined to the portion actually used by the public but it extends also the side lands.”

The learned Judge applied the English view to the construction of the words “public street or road” in Article 146-A of the Limitation Act, and stated:

“I am of opinion that ‘road’ in that article includes the portion which is used as road as also the lands kept on two sides as parts of the road for the purposes of road.”

So too, a Division Bench of the Allahabad High Court in Municipal Board of Agra v. Sudarshan Das Shastri, AIR 1914 All 314, defined “road” so as to include the side lands. Therein it was observed:

“……… in our opinion all the ground, whether metalled or not, over which the public had a right of way, is just as much the public road as the metalled part. The Court would be entitled to draw the infer­ence that any land over which the public from time immemorial had been accustomed to travel was a public street or road, and the mere fact that a special part of it was metalled for the greater conve­nience of the traffic would not render the unmetalled portion on each side any-the-less a public road or street.”

25. Right of public:

In “Pratt and Mackenzies Law of Highways”, 20th Edn. at p. 4, it is stated:

“Subject to the right of the public to pass and repass on the high­way, the owner of the soil in general remains the occupier of it, and as such may maintain trespass against any member of the public who acts in excess of his right.”

In Halsbury’s Laws of England. 3rd Edn., Vol 19 at p. 49, rules of pre­sumption and proof of dedication are stated thus:

“The fact that a way has been used by the public so long and in such a manner that the owner of the land, whoever he was, must have been aware that the public believed that the way had been dedi­cated, and has taken no steps to disabuse them of that belief, is evidence (but not conclusive evidence) from which a Court or Jury may infer a dedication by the owner.”

The learned author proceeds to observe, at p. 55:

“A dedication may also be inferred when a highway authority has used a strip of land adjoining an admitted highway for the deposit of stones or by cutting grips, or has, as of right and without permis­sion, piped in and levelled the site of a road-side ditch.”

26. Right of true owner:

“A true owner has every right to dispossess or throw out a trespasser. While the trespasser is in the act or process of trespassing, and has not accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accom­plishing his possession to the knowledge of the true owner. In such circum­stances the law requires that the true owner should dispossess the tres­passer by taking recourse to the remedies available under the law.” On the basis of this authority the trespasser can be thrown out by force only when he is in process of trespassing and not thereafter if his possession is settled and he accomplished his possession.

27. Right to dispossess the trespasser by force:

It was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even inter­mittent acts of trespass do not give such a right against the true owner.

The possession which a trespasser is entitled to defend against the right owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner.

The rightful owner may re-enter and reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force.

28. Right to dispossess the trespasser:

The Supreme Court on as­pects of right to dispossess trespasser has laid down as follows:

“It is true that no one including the true owner has a right to dispos­sess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law he is entitled to defend his possession even against the rightful owner. But stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a tres­passer is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and ac­quiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than necessary. Such entry will be viewed only as resistance to an intrusion upon possession which has never been lost. The persons in possession by a stray act of trespass, a possession which has not matured into settled possession, consti­tutes an unlawful assembly, giving right to the true owner, though not in actual possession at the time to remove the obstruction even by using necessary force.”

29. Settled possession:

The Court laid down the following tests which may be adopted as a working rule for determining the attributes of ‘settled possession’:

(i) That the trespasser must be in actual physical possession of the property over a sufficiently long period;

(ii) That the possession must be to the knowledge (either express of implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would however, be a matter to be decided on the facts and circum­stances of each case;

(iii) The process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and

(iv) That one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession.

30. Statutory body:

There is a well marked distinction between a body which is created by the statute and a body which after having come into existence is governed in accordance with the provisions of the statute. In other words, the position seems to be that the institution concerned must owe its very existence to a statute which would be the fountain-head of its power. The question in such cases to be asked is, if there is no statute would the institution have any legal existence? If the answer is in the nega­tive, then undoubtedly it is a statutory body, but if the institution has a separate existence of its own without any reference to the statute concerned but is merely governed by the statutory provisions it cannot be said to be a statutory body.

31. Suit for perpetual injunction:

A suit for perpetual injunction can­not be dismissed on the ground that the relief of declaration of title was not specifically mentioned in relief portion of the plaint.

32. Temporary injunction:

In the schedule property including the dis­puted portion, an educational institution is functioning. It is seen that there are a number of litigations between the parties, including a suit for specific performance of an agreement to lease filed by the appellant against respon­dent No. 3 apparently in respect of the area outside the 16,000 Sq. ft.

The suits are all pending. Taking note of the salient fact – and not other fact – that an educational institution is being run in the property in question including the disputed portion and taking note of the fact that from 12.7.2003 the order of stay of demolition granted by this Court has been in operation, we feel that it is not necessary or appropriate to go into the merits of the disputes between the parties at this stage. We feel that it would be appropriate to continue the order of this Court dated 12.7.2003 and to keep in operative till the disposal of the suit, with a direction to the Trial Court to try and dispose of the suit as expeditiously as possible, preferably within a period of six months from the production before it of a copy of this order by either of the parties. We have thought it fit not to go into the merits of the contro­versy vehemently projected before us by Counsel on either side, only in our view, that the status quo should be maintained in view of the fact that an educational institution is said to be functioning in the property.

Learned Counsel for respondent No. 3 submitted that under the cover of this order, the appellant is attempting to put up constructions in the disputed property and it is just and necessary to prevent him from doing so. We think that this prayer deserves to be granted, especially, in the context of the fact that we are trying to maintain the status quo until the suit is finally disposed off. We, therefore, restrain the appellant – the plaintiff in the suit, from putting up any further construction and from altering or modify­ing any existing construction until the disposal of the suit. In other words, there will not only be an injunction against the defendants for demolishing the constructions in the entire plaint schedule property including the dis­puted portion, but there would also be an injunction restraining the appel­lant from making any further construction and from altering or modifying any existing construction in the plaint property including the disputed prop­erty. We also make it clear that the fact that we are permitting the structures in the disputed portion of the property to continue to exist, will not confer any right on the plaintiff, if he is not able to establish his case for relief in the suit.

33. Trespass:

Trespasser would be entitled to remove plantation over which the State can have claim.

34. Use of Highway:

The width of the highway so dedicated depends upon the extent of the user. The side-lands are ordinarily included in the road, for they are necessary for the proper maintenance of the road, In the case of a pathway used for a long time by the public, its topographical and permanent landmarks and the manner and mode of its maintenance usu­ally indicate the extent of the user.

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