Case: Padhiyar Prahladji Chenaji (Deceased) Through L.R.s Vs. Maniben Jagmalbhai (Deceased) Through L.R.s and Ors

by the law, the plaintiff shall not be entitled to any permanent injunction. 11.1 An injunction is a consequential relief and in a suit for declaration with a consequential relief of injunction, it is not a suit for declaration simpliciter, it is a suit for declaration with a further relief. Whether the further relief claimed has, in a particular case as consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. 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 partys protective action. Thus, in the present case, the plaintiffs 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. So far as the submission on behalf of the defendant No.1 that even the suit for permanent injunction is barred by law of limitation and the further submission of defendant No.1 that the registered sale deed was executed on 17.06.1975 and immediately thereafter the name of the defendant No.1 was mutated in the Revenue record and thereafter all throughout the name of the defendant No.1 continued in the Revenue record as a cultivator and the suit was filed after a period of 22 years, is concerned, it is true that there are concurrent findings by the trial court as well as the First Appellate Court that the plaintiff is in possession of the disputed land in question. However, it is required to be noted that in the Revenue record, right from 1976 onwards and after the registered sale deed in favour of the defendant No.1, the name of the defendant No.1 was mutated in the Revenue record and in the column of farmer and the cultivator, the name of the defendant No.1 is mentioned. Even the crops being cultivated by the cultivator are mentioned in the Revenue record. Thus, right from 1976 onwards till 1997 in the Revenue record, the name of defendant No.1 is mutated as an owner and cultivator. Nothing is on record to the effect that at any point of time and after the registered sale deed was executed in favour of defendant No.1, the plaintiff paid any revenue in respect of the land in question. After the execution of the registered sale deed in favour of defendant No.1, which has been believed by all the courts below, the name of defendant No.1 was mutated in the Revenue record as an owner and cultivator and the plaintiff, who claims to be in possession of the land and cultivating the same, is deemed to have the knowledge of the said entry.8.1 In the case of Dilboo Vs. Dhanraji, (2000) 7 SCC 702,  it is observed and held by this Court that where there is a dispute that the suit is filed beyond the period of limitation, the plaintiff would have to aver and prove that the suit is within the period of limitation as prescribed and in the absence of any averment or proof to show that the suit is within time, it is the plaintiff who would fail. It is further observed that whenever a document is registered the date of registration becomes the date of deemed knowledge. It is further observed that in other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge.8.2 Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, it is noted that the registered sale deed in favour of defendant No.1 is dated 17.06.1975 and thereafter immediately the name of defendant No.1 – purchaser was mutated in the Revenue record, which continued till the filing of the suit and the name of defendant No.1 is shown as an owner and cultivator and even the crop grown is also shown and when the plaintiff claims that she is in possession and cultivating the land, she would have known the above facts, if she had exercised due diligence and therefore as observed by this Court, the plaintiff(s) can be said to have deemed knowledge of the title as well as possession of defendant No.1. It is to be noted that even in the registered sale deed, it was mentioned that the possession of the entire land in question has been handed over to defendant No.1 – purchaser. At this stage, it is required to be noted that the execution of the registered sale deed and the payment of full sale consideration mentioned in the registered sale deed has been believed and accepted by all the courts below. Therefore, there was no reason for the trial court not to believe the averments in the registered sale deed of handing over the possession to the defendant No.1 – purchaser. The relief of permanent injunction sought by the plaintiff as such was a consequential relief, which shall be discussed herein below.8.3 Therefore, once the suit is held to be barred by limitation qua the declaratory relief and when the relief for permanent injunction was a consequential relief, the prayer for permanent injunction, which was a consequential relief can also be said to be barred by limitation. It is true that under normal circumstances, the relief of permanent injunction sought is a substantive relief and the period of limitation would commence from the date on which the possession is sought to be disturbed so long as the interference in possession continuous. However, in the case of a consequential relief, when the substantive relief of declaration is held to be barred by limitation, the said principle shall not be applicable.9. Even otherwise on merits also, the Courts below have erred in passing the decree of permanent injunction restraining the defendant No.1 from disturbing the alleged possession of the plaintiff. Assuming for the sake of argument that the plaintiff is found to be in possession, in that case also, once the plaintiff has lost so far as the relief of declaration and title is concerned and the defendant No.1 is held to be the true and absolute owner of the property in question, pursuant to the execution of the sale deed dated 17.06.1975 in his favour, the true owner cannot be restrained by way of an injunction against him. In a given case, the plaintiff may succeed in getting the injunction even by filing a simple suit for permanent injunction in a case where there is a cloud on the title. 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. In the present case, as observed hereinabove and it is not in dispute that the suit filed by the plaintiff for cancellation of the registered sale deed and declaration has been dismissed and the registered sale deed in favour of the defendant No.1 has been believed and thereby defendant No.1 is held to be the true and absolute owner of the suit land in question. The judgment and decree passed by the trial court in so far as refusing to grant the relief for cancellation of the registered sale deed and declaration has attained finality. Despite the fact that the plaintiff has lost so far as the title is concerned, still the Courts below have granted relief of permanent injunction against the defendant No.1 – the absolute owner of the land in question, which is unsustainable, both, on law as well as on facts. An injunction cannot be issued against a true owner or title holder and in favour of a trespasser or a person in unlawful possession.9.1 At this stage, the decision of this Court in the case of Jharkhand State Housing Board Vs. Didar Singh and Anr., (2019) 17 SCC 692  is required to be referred to. In the said decision, it is observed and held by this Court that though a bare suit for injunction in the absence of declaration relief would be maintainable and in each and every case where the defendant disputes the title of the plaintiff, it is not necessary that in all those cases, the plaintiff has to seek the relief. It is further observed and held that, however, when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction.9.2 In the present case, once the defendant No.1 was held to be the true and absolute owner pursuant to the registered sale deed executed in his favour and the plaintiff was unsuccessful so far as the declaratory relief is concerned, thereafter, it cannot be said that there was a cloud over the title of the plaintiff and/or even the defendant. Therefore, the only relief which survived before the trial court was the consideration of relief of permanent injunction and having been unsuccessful in getting the relief of cancellation of the registered sale deed and the declaration thereof, the relief of permanent injunction could not have been granted by the trial court as well as by the first Appellate Court. This aspect of the case has been lost sight of by the High Court in the second appeal.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 plaintiffs 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. From the impugned judgment and order passed by the High Court, it appears that the High Court has not properly appreciated the distinction between a substantive relief and a consequential relief. The High Court has observed that in the instant case the relief of permanent injunction can be said to be a substantive relief, which is clearly an erroneous view. It is to be noted that the main reliefs sought by the plaintiff in the suit were cancellation of the sale deed and declaration and the prayer of permanent injunction restraining defendant No.1 from disturbing her possession can be said to be a consequential relief. Therefore, the title to the property was the basis of the relief of possession. If that be so, in the present case, the relief for permanent injunction can be said to be a consequential relief and not a substantive relief as observed and held by the High Court. Therefore, once the plaintiff has failed to get any substantive relief of cancellation of the sale deed and failed to get any declaratory relief, and as observed hereinabove, relief of injunction can be said to be a consequential relief. Therefore, the prayer for permanent injunction must fail. In the instant case as the plaintiff cannot be said to be in lawful possession of the suit land, i.e., the possession of the plaintiff is not legal or authorised by the law, the plaintiff shall not be entitled to any permanent injunction.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 partys protective action. Thus, in the present case, the plaintiffs 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.