SRI N. UMAP A THY

B.V. MUNIYAPPA

MARCH 25, 1997

(K. RAMASWAMY AND D.P. WADHWA, JJ.]

Code of Civil Procedure, 1908 :

Order XXXIX Rules 1 and 2-Ad interim injunction-Plaintiff in con- C tinuous possession of suit property since its purchase from vend01~Vendor

being a lessee of the Govemment, had remained in possession of the property since the lease-Held plaintiff is entitled to protection of his lawful possession by way of ad i11te1im injunction pending sJit-17wugh the appellant has a lease he cannot be given possession by Govemment except after duly ejecting the plaintiff in accordance with law; but the Govemment has also acknow- D !edged the f actum of possession of plaintiff and agreed to ratify his continuance in possession subject to payments as ordered by Govemment.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2535 of 1997.

E From the Judgment and Order dated 28 .. 8.96 of the Karnataka High

Court in C.R.P. No. 2780 of 1995.

E.C. Vidyasagar for the Appellant.

N.D.B. Raju and G. Prabhakar for the Respondent.

The following Order of the Court was delivered :

Leave granted.

We have heard counsel for both the parties.

This appeal by special leave arises from the judgment of the Karnataka High Court, made on 28.8.1996 in C.R.P. No. 2780/95. The admitted position is that the predecessor of the respondent had a mining lease in S.No. 14 of Venkatapura Village. The High Court has noted as under :

"Admittedly, in the case on hand, the plaintiff (respondent herein)

N.UMAPATHY V. B.V.MUNIYAPPA 351

having purchased the machinery plaint installed over the said A extent of 'the suit land from his vendor, had been in continuous actual possession thereof since November, 1989. It is also an undisputed fact that the plaintiffs vendor was in possession and enjoyment of suit property from 1984 till November, 1989 on which date he delivered possession to the plaintiff under the said agree- B ment. Admittedly, the Government is the true owner of the suit property."

In view of the above undisputed factual position, the only question for consideration is : whether the respondent is entitle to ad-interim injunction pending suit under Order XXXIX, Rules 1 and 2, Code of Civil C Procedure, 1908, though the trial Court had not granted the injunction and the appellate Court reversed it? The High Court on the above facts maintained ad-inte1im injunction, pending the suit.

It is also admitted case that the appellant has mining lease in respect D of 1 acre 16 gunthas of land in the same survey number in which the respondent has by a lease deed dated November 29, 1993. The respondent cannot unlawfully be dispossessed from the lands nor his possession and enjoyment intradicted exeept in accordance with the due process of law.

Under these circumstances, though the appellant had a lease, he E cannot be given possession by the Government except after duly ejecting the respondent in accordance with law. It would appear that subsequently on a representation made by the respondent, the Government acknowledged the factum of his possession and agreed to ratify his continuance in possession subject to his paying Rs. 12 lacs and odd per acre and further F amount as contemplated by the Government order.

Under these circumstances, the injunction granted by the High Court is in accordance with law and the respondent is entitled to the protection of his lawful possession by way of ad-interim injunction.

The appeal is accordingly dismissed. No costs.

R.P.

Appeal dismissed.