PADHIYAR PRAHLADJI CHENAJI (DECEASED) THROUGH L.R.S versus MANIBEN JAGMALBHAI (DECEASED) THROUGH L.R.S AND ORS.
[2022] 2 S.C.R. 455, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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[2022] 2 S.C.R. 455
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PADHIYAR PRAHLADJI CHENAJI (DECEASED) THROUGH L.R.S
v.
MANIBEN JAGMALBHAI (DECEASED) THROUGH L.R.S
AND ORS.
(Civil Appeal No. 1382 of 2022)
MARCH 03, 2022
[M. R. SHAH AND B. V. NAGARATHNA, JJ]
Permanent Injunction – Registered Sale Deed – Suit seeking
cancellation of sale deed, declaration and permanant injunction –
Trial court partly allowed the suit by granting the relief of permanent
injunction and refusing the relief of cancellation of the sale deed
and declaration – First Appellate Court upheld the same – High
Court dismissed the appeal holding that the relief of permanent
injunction sought by the original plaintiff can be said to be
substantive relief and not a consequential relief and therefore, the
trial court was justified in granting the permanent injunction in
favour of the plaintiff as the plaintiff was/is found to be in possession
of the suit property – Hence instant appeal – Held: The main reliefs
sought by the plaintiff in the suit were cancellation of the sale deed
and declaration – The prayer of permanent injunction restraining
defendant from disturbing her possession can be said to be a
consequential relief – 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
– 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 –
Once the rights of the parties are adjudicated and the defendant
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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.
Allowing the appeal, the Court
HELD: 1. 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. 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 – 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.
[Para 11][469-B-F]
 Dilboo vs. Dhanraji (2000) 7 SCC 702 : [2000] 3
Suppl. SCR 214; Jharkhand State Housing Board vs.
Didar Singh and Anr. (2019) 17 SCC 692; A.
Subramanian vs. R. Pannerselvam (2021) 3 SCC 675 –
relied on.
2. 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
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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. 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. [Paras 11.1,
12.1][469-F-H; 471-F-G]
3. 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. [Para 13][471-G-H; 472-A]
Maria Margarida Sequeira Fernandes vs. Erasmo Jack
de Sequeira (2012) 5 SCC 370 : [2012] 3 SCR 841;
Thomas Cook (India) Ltd. vs. Hotel Imperial (2006) 88
DRJ 545 – relied on.
Anathula Sudhakar vs.
P. Buchi Reddy (2008) 4 SCC
594 : [2008] 5 SCR 331 – referred to.
Case Law Reference
[2008] 5 SCR 331
referred to
Para 4.1
[2000] 3 Suppl. SCR 214 
relied on
Para 8.1
(2019) 17 SCC 692
relied on
Para 9.1
(2021) 3 SCC 675
relied on
Para 9.3
[2012] 3 SCR 841
relied on
Para 12
PADHIYAR PRAHLADJI CHENAJI (DECEASED) THROUGH L.R.S v. MANIBEN
JAGMALBHAI (DECEASED) THROUGH L.R.S AND ORS.
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(2006) 88 DRJ 545
relied on
Para 12
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1382
of 2022.
From the Judgment and Order dated 24.10.2018 of the High Court
of Gujarat at Ahmedabad in Second Appeal No.8 of 2016.
Pallav Shishodia, Sr. Adv., Rishabh Sancheti, Ms. Padma Priya,
Anchit Bhandari, Sushant Rao, Ms. Saloni Bhandari, Ms. Racheeta
Chawla, K. Paari Vendhan, Advs. for the Appellants.
Rauf Rahim, Ali Asghar Rahim, Advs. for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 24.10.2018 passed by the High Court of Gujarat in Second
Appeal No. 8 of 2016 by which the High Court has dismissed the said
appeal and has confirmed the judgment and decree passed by the trial
court further confirmed by the First Appellate Court granting injunction
in favour of the original plaintiff restraining the defendant from disturbing
the possession of the plaintiff, the original defendant has preferred the
present appeal.
2. That the dispute is with respect to the land bearing Revenue
Survey No.49 ad-measuring 6 acres and 15 gunthas situated at the village
Mahadeviya, District Deesa. The husband of the original plaintiff had
executed a Sale Deed dated 17.06.1975 in favour of the appellant herein
– original defendant (hereinafter referred to as the “original defendant”)
by which he sold his agricultural land in question.
2.1 That
on the basis of the sale deed, the name of the defendant
No.1 was mutated in the Revenue record in the year 1976 itself. All
throughout the name of the original defendant No.1 was mutated in the
Revenue record as an owner right from the year 1976 onwards. It is the
case on behalf of the defendants that thereafter between 1975 to 1997,
he had authorised and completed construction projects on the land. He
also availed a bank loan where the suit property was given as a collateral
security.
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2.2 That in the year 1999, the husband of the original plaintiff,
who executed the registered sale deed died. That after a period of
approximately 22 years, respondent No.1 herein – original plaintiff
(hereinafter referred to as “original plaintiff”) instituted Regular Civil
Suit No. 123 of 1997 in the Court of Civil Judge (Junior Division), Deesa
for the reliefs of cancellation of the registered Sale Deed dated
17.06.1975, declaration and permanent injunction.
2.3 The case on behalf of the original plaintiff was that her
husband was addicted to liquor and as the family was in need of
finances, her husband decided to sell 1 acre of the land out of total 6
acres and 15 gunthas to the defendant No.1. According to the plaintiff,
defendant No.1 taking advantage fraudulently got the sale deed
registered of the entire suit property, i.e., 6 acres and 15 gunthas.
Therefore, it was the case on behalf of the plaintiff that the defendant
No.1 played a fraud upon her family. According to the plaintiff, the
possession of only 1 acre was handed over to the defendant No.1 and
the plaintiff continued to be in possession of the remaining 5 acres and
15 gunthas of land. It is the case of the plaintiff, no sooner she came to
learn about the alleged fraud and as the defendant No.1 tried to disturb
her settled possession in the suit land, she instituted the regular civil
suit for the aforesaid reliefs.
2.4 The suit was opposed by defendant No.1. It was the specific
case on
behalf of the defendant No.1 that he has purchased the entire
land, i.e., 6 acres and 15 gunthas under the registered sale deed duly
executed by the husband of the plaintiff. It was also the case on behalf
of the defendant No.1 that he is in possession of the entire suit land and
is cultivating the same since many years. According to the defendant
No.1, the plaintiff has no right, title or interest in the suit property. At this
stage, it is required to be noted that the plaintiff joined the brothers of
her husband as defendant Nos. 2 and 3 against whom as such no reliefs
were claimed.
2.5 The trial court framed the following issues:-
“1.
Whether the plaintiff proves that her husband had given in
writing 1 acre land located on the North from survey no. 49
paiki for construction of well?
2.
Whether the plaintiff proves that the defendant no.1 along
with defendant no. 2 and 3 got the sale deed of survey no.
PADHIYAR PRAHLADJI CHENAJI (DECEASED) THROUGH L.R.S v. MANIBEN
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49 admeasuring 6 acre - 15 guntha land executed. on 17/6/
75 for Rs. 4000/- from her husband falsely?
3.
Whether the defendant proves that the husband of plaintiff
had sold him 6 acre - 15 guntha land of survey no. 49. by
registered sale deed dated 17/6/75 and he has the possession
of the land since then?
4.
Whether the plaintiff is entitled to get declaration as prayed?
5.
Whether the plaintiff is entitled to get the relief sought?
6.
What order and decree?”
2.6 On appreciation of evidence, both oral as well as documentary,
the trial court partly allowed the suit. The trial court declined to grant the
relief of cancellation of the sale deed and declaration and held that
defendant No.1 purchased the entire 6 acres and 15 gunthas of the land
under the registered Sale Deed dated 17.06.1975. However, the trial
court believed the plaintiff to be in possession of the suit land to the
extent of 5 acers and 15 gunthas of land and accordingly granted the
relief of permanent injunction.
2.7 Defendant No.1, feeling aggrieved and dissatisfied with the
judgment and decree of permanent injunction passed by the trial court,
preferred the Regular Civil Appeal No. 15 of 2000 before the First
Appellate Court – District Court of Banaskantha at Deesa. The First
Appellate Court dismissed the said appeal and confirmed the judgment
and decree of permanent injunction passed by the trial court.
2.8 At this stage, it is required to be noted
that so far as the judgment
and decree passed by the trial court refusing to grant the decree of
cancellation of the registered sale deed and refusing to grant declaration
of title of the property in her favour attained finality and it was the
defendant No.1 who unsuccessfully preferred the appeal before the First
Appellate Court challenging the decree of permanent injunction in favour
of the original plaintiff.
2.9 Feeling aggrieved and dissatisfied with the judgment and decree
passed by the First Appellate Court, defendant No.1 preferred the Second
Appeal before the High Court. The High Court framed the following
substantial questions of law:-
“(1)  Whether in the facts and circumstances of the case. Courts
below, particular appellate Court has committed serious error of
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law in holding that so far as the relief of cancellation of sale deed
is concerned, it is barred by limitation and so far as the relief of
injunction is concerned, it is not barred by limitation as plaintiff
has continuous cause of action for that relief?
(2)  Whether in the facts and circumstances of the case, is it
possible to draw conclusion about possession of the either party?
Whether in arriving at finding as to the possession Courts below
have correctly appreciated materials on record or have committed
serious error of law?”
2.10 By the impugned judgment and order, the High Court has
dismissed the second appeal by observing and holding that the relief of
permanent injunction sought by the original plaintiff can be said to be
substantive relief and not a consequential relief and therefore, the trial
court was justified in granting the permanent injunction in favour of
the plaintiff as the plaintiff was/is found to be in possession of 5 acres
and 15 gunthas of land out of total area ad-measuring 6 acres and 15
gunthas.
2.11 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court dismissing his second appeal and
confirming the judgment and decree passed by the trial court of granting
permanent injunction in favour of the original plaintiff, the original
defendant No.1 has preferred the present appeal.
3. Shri Pallav Shishodia, learned Senior Advocate appearing on
behalf of the original defendant No.1 has
vehemently submitted that
once the relief relating to declaration as to title of the plaintiff to suit land
is declined, the trial court erred in granting the relief of permanent
injunction to protect the alleged “possession” of the plaintiff.
3.1 It is submitted that the permanent injunction sought and granted
in favour of the plaintiff is unjust and contrary to Section 38 read with
Section 41 of the Specific Relief Act.
3.2 It is further contended that even the relief for permanent
injunction was contrary to the evidence on record. It is submitted that as
such, right from the execution of the registered Sale Deed dated
17.06.1975, the defendant No.1 is in possession of the entire suit land. It
is submitted that right from 1975 in the Revenue record, the name of the
defendant No.1 is shown as a cultivator and in possession. It is submitted
that even defendant No.1 also availed a bank loan where the suit property
PADHIYAR PRAHLADJI CHENAJI (DECEASED) THROUGH L.R.S v. MANIBEN
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was given as a collateral security. It is submitted that even in the registered
sale deed, it was specifically mentioned that the full sale consideration
has been paid and that the defendant No.1 – purchaser was put in
possession of the entire land. It is urged that once the trial court believed
the execution of the registered sale deed with respect to the entire land
in question and also believed that the full sale consideration with respect
to the entire land in question had been paid, the trial court ought to have
believed that part of the sale deed in which it was specifically mentioned
that possession of the entire land in question was handed over to the
defendant No.1. It is submitted therefore that all the Courts have
materially erred in believing the possession of the plaintiff with respect
to 5 acres and 15 gunthas of land.
3.3 It is further submitted by Shri Shishodia, learned Senior
Advocate appearing on behalf of the original defendant No.1, that even
otherwise, all the Courts below have materially erred in granting the
relief of permanent injunction in favour of the plaintiff. It is contended
that once the plaintiff failed to get any relief regarding the declaration
as to title and the registered sale deed in favour of the defendant No.1
has been believed, in that case, as the relief for permanent injunction
was a consequential relief sought in the suit, the plaintiff shall not be
entitled to any
protection and/or any injunction protecting her alleged
possession.
3.4 It is further submitted that the Courts below have not properly
appreciated the fact that once the plaintiff failed to get any relief regarding
declaration as to title and the registered sale deed in favour of the
defendant No.1 came to be believed, the so called possession of the
plaintiff can be said to be unlawful and/or illegal possession and in any
case cannot be said to be lawful possession and therefore is not entitled
for the permanent injunction as prayed and granted by the trial court
confirmed by the High Court.
3.5 It is also submitted that if the suit for declaration was barred
by limitation, then the relief seeking permanent injunction was also barred
by limitation, as the plaintiff challenged the Sale Deed dated 17.06.1975
after a period of 22 years.
3.6 It is further submitted that after the suit was filed in the year
1997 challenging the sale deed of 1975, the trial court declined the
temporary injunction vide order dated 12.12.1997. Thereafter, the First
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Appellate Court protected the possession of the appellant – defendant
No.1 by granting an order of status quo during the pendency of the first
appeal, which was further continued even by the High Court vide order
dated 21.03.2016. It is submitted that even the order of status quo had
been extended by the High Court after the impugned judgment and
continued by this Court vide order dated 11.01.2019. It is submitted that
the defendant No.1 all along has been in possession and in exclusive
possession of the suit land, which stand protected by the judicial orders
all throughout in recognition of the said fact.
3.7 Making the above submissions, it is prayed to allow the present
appeal and quash and set aside the judgment and decree passed by the
trial court of granting permanent injunction as affirmed by the High Court.
4. Present appeal is vehemently opposed by Shri Rauf Rahim,
learned Advocate appearing on behalf of the original plaintiff.
4.1 It is vehemently submitted by Shri Rahim, learned Advocate
appearing on behalf of the original plaintiff that as such there are
concurrent findings of fact recorded by all the Courts below holding that
the plaintiff is in possession of the entire suit land, i.e., 5 acre and 15
gunthas of land. It is submitted that these finding of facts have been
recorded by all the Courts below on appreciation of evidence on record,
both oral as well as documentary. It is further submitted that as the
plaintiff is found to be in
settled possession, the only remedy available to
defendant No.1 would be to file a substantive suit to get the relief of
possession. Reliance is placed on the decision of this Court in the case
of Anathula Sudhakar Vs. P. Buchi Reddy, (2008) 4 SCC 594.
4.2 It is submitted that in the suit filed by the plaintiff to protect
her possession, defendant No.1 cannot get the relief of possession in his
favour. It is submitted that even no counter claim was filed on behalf of
the defendant No.1 to protect his possession, if any.
4.3 It is further submitted by the learned Advocate appearing on
behalf of the original plaintiff that the plaintiff proved by oral as well as
documentary evidence that she is cultivating the suit land in question and
that she is in possession of the said land. It is submitted that on the other
hand defendant No.1 did not lead any evidence to prove his possession.
It is submitted that no evidence was led by the defendant No.1 to prove
his possession. It is urged that, once the plaintiff was found to be in
possession of the suit land, no error was committed by the trial court
PADHIYAR PRAHLADJI CHENAJI (DECEASED) THROUGH L.R.S v. MANIBEN
JAGMALBHAI (DECEASED) THROUGH L.R.S AND ORS. [M. R. SHAH, J.]
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granting the relief of permanent injunction and the same is rightly affirmed
by the First Appellate Court as well as the High Court.
4.4 It is further submitted by learned Advocate appearing on behalf
of the original plaintiff that the High Court has rightly observed that the
relief of permanent injunction sought by the plaintiff was a substantial
relief and not a consequential relief.
4.5 Making the above submissions, it is prayed to dismiss the
present appeal.
5. Heard the learned counsel for the respective parties at length.
6. At the outset, it is required to be noted that the suit filed by the
original plaintiff was for cancellation of the registered Sale Deed dated
17.06.1975 and for a declaration that the registered Sale Deed dated
17.06.1975 is bogus and not binding to the plaintiff. While praying for the
substantive relief of declaration that the aforesaid sale deed is not binding
on her, the plaintiff also prayed for return of the land ad-measuring 1-0
guntha, which even according to the plaintiff was in possession of the
defendant No.1. The plaintiff also prayed for permanent injunction with
respect to the entire agricultural land ad-measuring 6 acres and 15
gunthas, though even according to the plaintiff also the defendant No.1
was handed over the possession of 1-0 guntha of land out of 6 acres and
15 gunthas of land.
6.1 On appreciation of the entire evidence on record, the trial
court refused to pass the
decree for cancellation of the registered sale
deed and refused to grant a declaration as prayed. Therefore, so far as
on the aspect of title of the land in question is concerned, the plaintiff
lost. On appreciation of evidence, the trial court held that the husband of
the plaintiff executed the registered sale deed in favour of the defendant
No.1 for a value consideration. The judgment and order passed by the
trial court refusing to grant the decree of cancellation of the registered
sale deed and the declaration has attained finality. This is because no
appeal was filed by the plaintiff.
6.2 However, the trial court granted the permanent injunction in
favour of the plaintiff restraining defendant No.1 from disturbing the
possession of the plaintiff with respect to 5 acres and 15 gunthas of
land. It was the defendant No.1, who preferred the appeal before the
First Appellate Court and thereafter before the High Court challenging
the decree for permanent injunction. The High Court by the impugned
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judgment and order has observed that as relief for permanent injunction,
by the plaintiff can be said to be a substantive relief, therefore, when the
plaintiff is found to be in possession of 5 acres and 15 gunthas of land,
the plaintiff is entitled to the relief of permeant injunction for protecting
her possession.
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.
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
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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
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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
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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.
9.3 In the case of A. Subramanian Vs. R. Pannerselvam, (2021)
3 SCC 675, 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
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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. 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.
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
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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
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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.
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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.
14. In view of the above and for the reasons stated above, present
Appeal Succeeds. The judgment and decree passed by the trial court
confirmed by the First Appellate Court and the High Court by the
impugned judgment and order are hereby quashed and set aside.
Consequently, the suit filed by the plaintiff for permanent injunction against
the defendant No.1 stands dismissed. Meaning thereby, the entire suit
filed by the plaintiff stands dismissed.
Present Appeal is accordingly Allowed. However, in the facts
and circumstances of the case, there shall be no order as to costs.
Devika Gujral
Appeal allowed.