1 S.B. CIVIL SECOND APPEAL NO.237/2007 Smt.Narayani & ors. Vs. Urban Improvement Trust, Jodhpur Date of Order :: 3rd July 2008 HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.Jitendra Gehlot for the appellants … This second appeal is directed against the Judgment and Decree dated 27.09.2005 as passed by the Additional District Judge No.2, Jodhpur in Civil Appeal (Decree) No. 46/2005 affirming the Judgment and Decree dated 25.08.2005 as passed by the Additional Civil Judge (Junior Division) No.1, Jodhpur in Civil Original Suit No. 35/2004. The suit aforesaid was filed by the plaintiffs-appellants on 26.03.2004 seeking the relief of perpetual injunction against the defendant-respondent, the Urban Improvement Trust, Jodhpur (UIT), while describing the land in dispute in paragraphs 1 & 2 of the plaint and with the averments that they are in possession of and residing at the land in question since long; that earlier the defendant UIT attempted to dispossess the husband of plaintiff No.1 whereupon a civil suit bearing No.782/1989 was filed and the same was decreed on 27.08.1994; and that on 24.03.2004, the defendant UIT dismantled an about 3-4 feet portion of the eastern side wall of 2 the plaintiffs’ plot and threatened to dispossess them. A decree for perpetual injunction was sought in the present suit that the defendant should not dispossess the plaintiffs and should not dismantle their construction. The defendant UIT neither filed any written statement nor led any evidence. After examining the record of the case and the evidence led by the plaintiffs, the learned Trial Court has referred to the admitted fact that the plaintiffs were not having any document of title and has observed that the plaintiffs have failed to show if any application for regularisation was made to the defendant UIT. In relation to the previous suit proceedings as relied upon by the plaintiffs, the learned Trial Court has referred to the decree dated 27.08.1994 (Ex.9) and has observed that though copy of plaint of the said suit has not been filed but even if it be assumed that the property involved in the present suit had been the subject matter of the said previous suit, as per the admitted case of the plaintiffs, the defendants were restrained only to the extent that they should not dispossess the plaintiffs without due process of law. The learned Trial Court has further observed that the plaintiffs are in possession only as trespassers and in the present suit have not sought injunction that they be not dispossessed without due process of law but have sought a blanket injunction against dispossession and for such a relief, they were required to establish their title to the property in 3 question but the plaintiff are, admittedly, having no document proving their title. The learned Trial Court has further observed that the suit has not been filed on the basis of adverse possession; and if at all claiming adverse possession, the plaintiffs ought to have sued for declaration and the suit for injunction simplicitor is not maintainable particularly when the plaintiffs are but the trespassers on the government land. The learned Appellate Court, while dismissing the appeal filed by the plaintiffs, has again observed that being trespassers the plaintiffs are not entitled to the relief of injunction. This second appeal by the unsuccessful plaintiffs is sought to be maintained with the submissions that the learned subordinate Courts have failed to consider the documentary evidence on record that establishes long possession of the plaintiffs; that for want of written statement and evidence on the part of the defendant, the case of the plaintiffs has remained unrebutted and the suit ought to have been decreed; that the learned subordinate Courts have erred in dismissing the suit for want of the claim for declaration and have failed to consider that even without title, the relief of injunction cannot be denied to the plaintiffs; that the defendant cannot dispossess the plaintiffs without adopting due process of law; that the learned subordinate Courts have not considered the decisions cited before them; and that for the plaintiffs having no other plot or house, before dispossession they are required 4 to be provided alternative land. In this second appeal the questions (i) as to whether the respondent can dispossess the appellants without due process of law; (ii) as to whether in the absence of prayer for declaration, the suit for perpetual injunction could be dismissed; (iii) as to whether in the absence of rebuttal evidence of the respondent the suit could be dismissed; and (iv) as to whether without being provided with alternative plot the appellants could be dispossessed and the suit could be dismissed, have been suggested as the substantial questions of law. In this appeal, earlier the records relating to the present suit proceeding were requisitioned; and thereafter, with reference to the observations as made by the learned subordinate Courts and the pleadings as taken in the present plaint, for appreciation of the background facts, record of the former suit, Civil Original Suit No.782/1989, was also requisitioned. Having heard learned counsel for the appellants and having perused the relevant records, this Court is satisfied that the suit filed by the plaintiffs-appellants has rightly been dismissed and this second appeal, involving no substantial question of law, does not merit admission. So far relief of injunction to the effect that the plaintiffs may not be dispossessed without due process of law is 5 concerned, on the admitted case of the plaintiffs that in relation to the same property such decree had already been passed against the present defendant UIT in Civil Original Suit No.782/1989 on 27.08.1994, there was no occasion for filing of a fresh suit for the same relief. Learned counsel for the appellants has contended that the present suit has rightly been filed for accrual of fresh cause of action on 24.03.2004 when the defendant UIT attempted to interfere with the possession of the plaintiffs. The submission is not convincing. It is not in dispute that the former suit was filed in relation to the same property and the present plaintiff No.1 Smt. Naryani was a party thereto as plaintiff No. 2; and the present defendant UIT was a party as defendant No. 1. In fact, the plaintiff No.1 in the said suit, Ram Pratap, is said to have expired; and the present plaintiffs are his wife and children respectively. In the said former suit, on the basis of compromise, a decree was passed to the effect that the defendants i.e., the Urban Improvement Trust and the State of Rajasthan shall not dispossess the plaintiffs without adopting due process of law. Question does not arise of issuance of yet another injunction to the same effect in relation to the same property against the same defendant UIT. The submissions regarding interference by the defendant on 24.03.2004 rather lead to the allegations of violation or disobedience of the decree passed in the former suit. On such allegations, a fresh 6 suit cannot be countenanced as if a remedy for enforcement of the said decree. In this fact situation, whether the defendant UIT put any contest or not, the present suit was required to be dismissed as being fundamentally incompetent. The learned subordinate Courts have rightly done so. So far the observations of the learned Trial Court about want of relief of declaration is concerned, the averments as taken in the present plaint are to the effect that the defendant cannot dispossess the plaintiffs without due process of law; however, the decree has been sought in the nature of a blanket perpetual injunction that the defendants should not dispossess the plaintiffs and should not interfere with their construction. For the prayer as made in the plaint, the observations of the learned Trial Court cannot be said to be incorrect that such injunction could be claimed only on the basis of settled legal right and the plaintiffs cannot be held entitled for such injunction without existence of clear title or seeking declaration to that effect. Learned counsel for the appellant has relied upon the decisions in Rame Gowda (D) by LRs Vs. M.Varadappa Naidu (D) by LRs: 2004 DNJ (SC) 263 and Abdul Latif and others Vs. Nagar Vikas Pranyas, Udaipur: 2006 (3) CDR 2337. The cited decisions are of little help to the case of the appellants when they have failed to prove existence of any obligation in their favour that was threatened to be invaded unlawfully. 7 In the case of Rame Gowda (supra), the Hon'ble Supreme Court was concerned with a case where either of the parties failed to prove title to the suit property and plaintiff was found to be in settled possession and in such circumstances, issuance of injunction to protect possession was upheld. The Hon'ble Supreme Court said,- “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.” For a claim of injunction without proof of title, the Hon'ble Supreme Court agreed with the observations of Hon’ble Bombay High Court in Fakirbhai Bhagwandas & Anr. Vs. Maganlal Haribhai & Anr., AIR 1951 Bombay 380 that,- “It would suffice if he proves that he was in lawful possession of the same and that his possession was invaded or threatened to be invaded by a person who has no title thereof.” In the present case, the plaintiffs have failed to show if the defendant UIT is not having any title to the suit property; and, as aforesaid, an injunction had already been issued against the defendant UIT in the former suit so far adopting due process of law is concerned. The claim for blanket perpetual injunction as made in the present suit could not have 8 been countenanced against the defendant UIT nor the aforesaid decision supports the claim of the present plainitffs for such an injunction. The decision of this Court in the case of Abdul Latif (supra) proceeds essentially on its own facts and has no application to the present case. In the said case of Abdul Latif, though the assertion of the plaintiff of title to the suit property on the basis of patta Ex. 1 was not accepted but then, this Court examined the other evidence on record including the decision dated 05.05.1927 wherein a patta of Svt. Year 1922 was referred to, the notices issued by the City Corporation on 16.02.1950 and 24.02.1950 requiring repair of the suit property, another notice as issued by the Municipal Board on 15.07.1981 again pointing out dangerous condition of the house and directing one of the plaintiffs to repair the same while making reference to the aforementioned notice dated 16.02.1950, the house tax deposit receipts including that of the year 1976, and construction permission granted in the year 1962; and with reference to the said evidence this Court held that the plaintiff appeared to be in long, peaceful, and settled possession of the suit property even prior to the constitution of the respondent Urban Improvement Trust, Udaipur. This Court found that the property was sought to be interfered with by the defendant Urban Improvement Trust, Udaipur whereas its predecessors, the City Corporation and the Municipal Board, 9 did not dispute the title of the plaintiffs; and then, this Court held that it were ‘not a case of tress-pass over the Government land or over the land vesting in U.I.T., Udaipur’. In the present case, the fact that the appellants are trespasser over the Government land is rather not in dispute. The evidence as produced by the plaintiffs relating to water supply connection, electricity supply connection, and communication for photo identity card all pertain to the years 1990 to 1997 i.e., much after the date of filing of the previous suit in year 1989. There arise no question of the plaintiffs being in long settled possession of the land in dispute. Moreover, the appellants have sought a relief of injunction only and that being an equitable relief, they cannot be held entitled to protect the possession by way of injunction simplicitor against the rightful owner, and such relief cannot be granted for mere askance. The Hon'ble Supreme Court in the case of Premji Ratansey Shah and others Vs. Union of India and others : (1994) 5 SCC 547 has been pleased to point out,- “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.” 10 Therefore, it is not necessary that merely on account of possession, the plaintiffs would be entitled for an injunction. The learned subordinate Courts have refused the discretionary relief of injunction in the present case on valid and relevant considerations. So far the question as suggested in the memo of appeal about giving of alternative plot to the plaintiffs is concerned, such question does not arise at all; no such relief has been claimed in the suit. This second appeal remains totally devoid of substance and the case does not involve any substantial question of law. The appeal is, therefore, dismissed summarily. (DINESH MAHESHWARI), J. MK