# Meera Awasthi & Anr v. Ajeet Awasthi & Anr

- **Citation:** (2024) 3 ILRA 1420
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-06
- **Case number:** Matter Under Article 227 No. 90 of 2024
- **Bench:** Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/meera-awasthi-anr-v-ajeet-awasthi-anr-51601
- **Pages:** 14

## Headnote

Civil Law - Civil Procedure Code, 1908 -
Order 39 Rules 1 & 2 - Specific Relief Act,
1963 - Section 9 - Constitution of
India,1950 -Article 227 - Permanent
Injunction - Settled Possession - Title Dispute -
Maintainability of Suit for Injunction without
Declaration of Title
The petitioners challenged the order dated
31.10.2023 by the Additional District Judge,
Kanpur Nagar, allowing Misc. Civil Appeal No. 81
of 2023, which set aside the trial court's order
dated
21.08.2023
rejecting
a
temporary
injunction in Original Suit No. 816 of 2020. The
suit, filed by respondent No. 1 (Ajeet Awasthi),
sought a permanent injunction to restrain the
petitioners (his parents, Meera Awasthi and
another) from interfering with his possession of
House No. N 638, S Block, Yashoda Nagar,
Kanpur Nagar. The respondent claimed he
purchased the land and constructed the house
with his own funds, though registered in his
mother's name, while the petitioners asserted
ownership, alleging the respondent's possession
was permissive as their son. The trial court
rejected the injunction, finding no prima facie
case, balance of convenience, or irreparable
loss, and held possession alone insufficient for
an injunction. The appellate court reversed this,
directing both parties to maintain status quo.
Held: The court, under Article 227, upheld the
appellate court's order, emphasizing that Indian
law protects settled possession even without
title, as per Midnapur Zamindary Co. Ltd. Vs
Kumar Naresh Narayan Roy (1924 PC 144), Yar
Mohammad Vs Lakshmi Das (AIR 1959 All 1),
and Rame Gowda Vs M. Varadappa Naidu
((2004) 1 SCC 769). A person in settled
possession, even if permissive, cannot be
dispossessed except through legal process. The
respondent's
admitted
possession,
though
claimed permissive by the petitioners, warranted
protection pending trial. The court distinguished
Padhiyar
Prahladji
Chenaji
Vs
Maniben
Jagmalbhai (Civil Appeal No. 1382 of 2022), as
title was not yet adjudicated here, unlike in that
case where the plaintiff lost on title. Relying on
Anathula Sudhakar Vs P. Buchi Reddy ((2008) 4
SCC 594), the court held that a suit for
injunction simpliciter based on possession is
maintainable when title is disputed but not
complex, and title issues can be examined in
such
suits
if
pleaded.
The
respondent's
possession, not being that of a trespasser,
entitled him to interim protection. The petition
was dismissed, affirming the appellate court's
status quo order.

Case Law Cited:

## Text

_Characters 0–39,864 of 49,404. This is a partial read: ask again with offset=39864 for what follows._

1420 INDIAN LAW REPORTS ALLAHABAD SERIES
is entitled to be released in terms of the bail
order dated 09.08.2023, passed by this
Court in Criminal Appeal No. 4024 of
2015.
Accordingly,
we
direct
State
Authorities i.e., Respondent nos. 1 and 2, to
calculate the period of sentence as if both
the sentences had run concurrently and
release the petitioner forthwith in terms of
bail order dated 09.08.2023 if he is not
required in any other case.

15. With these observations the
instant Habeas Corpus writ petition is
allowed.
----------
(2024) 3 ILRA 1420
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.02.2024

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Matter Under Article 227 No. 90 of 2024

Meera Awasthi & Anr. ...Petitioners
Versus
Ajeet Awasthi & Anr. ...Respondents

Counsel for the Petitioners:
Sri Anand Kumar Srivastava, Sri Anand Kumar
Srivastava, Dr. Shiv Bahadur Singh

Counsel for the Respondents:--

Civil Law - Civil Procedure Code, 1908 -
Order 39 Rules 1 & 2 - Specific Relief Act,
1963 - Section 9 - Constitution of
India,1950 -Article 227 - Permanent
Injunction - Settled Possession - Title Dispute -
Maintainability of Suit for Injunction without
Declaration of Title
The petitioners challenged the order dated
31.10.2023 by the Additional District Judge,
Kanpur Nagar, allowing Misc. Civil Appeal No. 81
of 2023, which set aside the trial court's order
dated
21.08.2023
rejecting
a
temporary
injunction in Original Suit No. 816 of 2020. The
suit, filed by respondent No. 1 (Ajeet Awasthi),
sought a permanent injunction to restrain the
petitioners (his parents, Meera Awasthi and
another) from interfering with his possession of
House No. N 638, S Block, Yashoda Nagar,
Kanpur Nagar. The respondent claimed he
purchased the land and constructed the house
with his own funds, though registered in his
mother's name, while the petitioners asserted
ownership, alleging the respondent's possession
was permissive as their son. The trial court
rejected the injunction, finding no prima facie
case, balance of convenience, or irreparable
loss, and held possession alone insufficient for
an injunction. The appellate court reversed this,
directing both parties to maintain status quo.
Held: The court, under Article 227, upheld the
appellate court's order, emphasizing that Indian
law protects settled possession even without
title, as per Midnapur Zamindary Co. Ltd. Vs
Kumar Naresh Narayan Roy (1924 PC 144), Yar
Mohammad Vs Lakshmi Das (AIR 1959 All 1),
and Rame Gowda Vs M. Varadappa Naidu
((2004) 1 SCC 769). A person in settled
possession, even if permissive, cannot be
dispossessed except through legal process. The
respondent's
admitted
possession,
though
claimed permissive by the petitioners, warranted
protection pending trial. The court distinguished
Padhiyar
Prahladji
Chenaji
Vs
Maniben
Jagmalbhai (Civil Appeal No. 1382 of 2022), as
title was not yet adjudicated here, unlike in that
case where the plaintiff lost on title. Relying on
Anathula Sudhakar Vs P. Buchi Reddy ((2008) 4
SCC 594), the court held that a suit for
injunction simpliciter based on possession is
maintainable when title is disputed but not
complex, and title issues can be examined in
such
suits
if
pleaded.
The
respondent's
possession, not being that of a trespasser,
entitled him to interim protection. The petition
was dismissed, affirming the appellate court's
status quo order.

Case Law Cited:

1. Midnapur Zamindary Co. Ltd. Vs Kumar
Naresh Narayan Roy, 1924 PC 144

2. Yar Mohammad Vs Lakshmi Das, AIR 1959 All
1
3 All. Meera Awasthi & Anr. Vs. Ajeet Awasthi & Anr.
1421
3. Lallu Yeshwant Singh Vs Rao Jagdish Singh,
AIR 1968 SC 620

4. Ram Rattan Vs St. of U.P., AIR 1977 SC 619

5. Puran Singh Vs St. of Punj., AIR 1975 SC
1674

6. St. of U.P. Vs Maharaja Dharmander Prasad
Singh, AIR 1989 SC 997

7. Krishna Ram Mahale Vs Mrs. Shobha Venkat
Rao, 1989 SC 2907

8. Samir Sobhan Sanyal Vs Tracks Trade Private
Ltd., (1996) 4 SCC 144

9. Rame Gowda Vs M. Varadappa Naidu, (2004)
1 SCC 769

10. Subramaniaswamy Temple, Ratnagiri Vs VS
Kanna Gounder, 2009 (106) RD 77

11. Ranjit Kaur Vs Harmohinder Singh, 2012 (1)
AWC 14 (SC)

12. Anathula Sudhakar Vs P. Buchi Reddy,
(2008) 4 SCC 594

(Delivered by Hon'ble Manish Kumar
Nigam, J.)

1.

Heard
Sri
Anand
Kumar
Srivastava,
learned
counsel
for
the
petitioners and perused the record.

2. Present petition has been filed
challenging the order dated 31.10.2023
passed by the Additional District Judge,
Court No. 8, Kanpur Nagar allowing the
Misc. Civil Appeal No. 81 of 2023 (Ajeet
Awasthi v. Meera Awasti and others).

3. The facts of the case in brief are
that the plaintiff/respondent no. 1 Ajeet
instituted Original Suit No. 816 of 2020
(Ajeet Awasthi v. Meera Awasthi and
others) in the court of Civil Judge (Senior
Division), Kanpur Nagar for the relief of
permanent
injunction
restraining
the
defendants,
their
servants,
agents,
employees,
representatives,
family
members from interfering in the peaceful
possession and enjoyment of the plaintiff
over the house in dispute (House No. N
638, S Block, Yashoda Nagar, Kanpur
Nagar).
The
case
set
up
by
the
plaintiff/respondent no. 1 in the plaint in
brief is that the plaintiff purchased the land
out of his own income in the name of his
mother
namely
Meera
Awasthi
and
thereafter constructed a house from his own
funds being House No. N 638, S Block,
Yashoda Nagar, Kanpur Nagar and is living
along with all his family members in the
aforesaid house. It is further pleaded that
subsequently, the defendant nos. 1 & 2
(parents of the plaintiff/respondent no. 1)
under the influence of their other children
started asking the plaintiff to vacate the
accommodation and has also given threat to
the plaintiff in case the plaintiff/respondent
do not vacate the house in question, he will
be thrown out from the premises in
question and therefore, the present suit is
instituted. The plaintiff/respondent no. 1
also filed an application under Order 39
Rule 1 & 2 C.P.C. for grant of temporary
injunction. The trial court i.e. Judge Small
Causes, Kanpur Nagar by an ex-parte order
dated 27.10.2020 restrained the defendants
from interfering with the possession of
plaintiff over house in dispute and further
directed them to maintain status quo. On an
application
filed
by
the
plaintiff/respondent, paper no. 30Ga, the
trial court appointed commissioner vide
order dated 07.05.2022. Commissioner has
submitted its report on 01.09.2022.

4. After service of notice, the
petitioners/defendants appeared before the
court below and filed their objections on
13.04.2022 being paper no. 26/27ga to the
1422 INDIAN LAW REPORTS ALLAHABAD SERIES
application for temporary injunction filed
by the petitioner. The case set up by the
defendants/petitioners is that the land in
question is not purchased by the plaintiff
out of his own funds and the house
constructed
thereupon
is
also
not
constructed by the plaintiff out of his own
funds rather the same is constructed by
defendant nos. 1 & 2 out of their own
funds. However, in their objections, the
defendant/petitioners have admitted that the
plaintiff/respondent is residing in the house
in question and has thrown out the
defendant/petitioner from the property in
question, other pleas were also taken.

5. The trial court by order dated
21.08.2023, rejected the application for
temporary
injunction
filed
by
the
defendant/respondent no. 1 holding that
there is no prima-facie case, balance of
convenience,
irreparable
loss
to
the
plaintiff. The trial court has also held that
an injunction cannot be granted merely on
the basis of possession. Against the order
dated 21.08.2023, defendant/respondent no.
1 preferred Misc. Civil Appeal No. 81/2023
which has been allowed by the Additional
District Judge, Court No. 8, Kanpur Nagar
by order dated 31.10.2023. The order dated
21.08.2023, passed by the trial court was
set-aside by appellate court and appellate
court also directed that both the parties will
maintain status quo with respect to the
house in question. Being aggrieved with the
order dated 31.10.2023, the present petition
has been filed under Article 227 of
Constitution
of
India
by
the
defendants/petitioners.

6. Contention of the learned counsel
for the petitioners is that the land in
question was purchased vide sale deed
dated 16.02.2004, paper no. 28ga from its
earlier
owner
by
Meera
Awasthi
defendant/petitioner no. 1. Learned counsel
for the petitioner relied upon the bank
statement paper no. 28Ga/27 and 28Ga/28
to demonstrate that the aforesaid bank
account
is
in
the
name
defendants/petitioners and the money has
been paid from the aforesaid account for
the purchase of the land. The house tax of
the House No. N 638, S Block, Yashoda
Nagar, Kanpur Nagar is being paid by Smt.
Meera Awasthi and has contended that on
the basis of aforesaid documents that
Meera Awasthi is the actual owner of the
property in dispute. It is further contended
by the learned counsel for the petitioners
that the plaintiff has failed to prove even
prima-facie that the land is purchased by
the plaintiff out of his own funds and house
is constructed thereupon by the plaintiff out
of his own funds. It has also been
contended by the learned counsel for the
petitioners that the plaintiff is in possession
because being son of the defendants and is
residing therein with their consent and has
no right to reside therein without their
consent. The plaintiff has failed to prove
that the plaintiff has any legal right to
remain in possession over the house in
question. It is also contended by the learned
counsel for the petitioners that the appellate
court has erred in law in granting injunction
merely on the basis of possession that to
against the true owner. In this regard, the
learned counsel for the petitioner relied
upon the judgment of the Apex Court in
case of Premji Ratan v. Union of India
reported in (1994) 5 SCC 574, and
Hanumanthappa v. Muniappa reported in
1997 (29) ALR 392 SC.

7. Next, it is contended by learned
counsel for the petitioners that the suit filed
by the the defendant/respondent was based
on his title. The suit itself was defective in
as much as declaration of title has not been
3 All. Meera Awasthi & Anr. Vs. Ajeet Awasthi & Anr.
1423
sought for though the title of plaintiffs was
in dispute. It is further submitted that if the
suit is based on title and unless the plaintiff
proves his prima-facie title, an injunction
cannot be granted merely on the basis of
possession over the property in dispute. It
has been also contended by learned counsel
for the petitioners that the suit simpliciter
for permanent injunction without claiming
declaration of the title, fled by the plaintiff,
is not maintainable. In this connection, the
learned counsel for the petitioners relied
upon the judgment of Apex Court in case of
T.
V.
Ramakrishna
Reddy
v.
M.
Mallappa & Anr. In Civil Appeal No.
5577 of 2021 decided on 07.09.2021 and
also upon the judgment of the Apex Court
in case of Padhiyar Prahladji Chenaji
(deceased) through L.R.s v. Maniben
Jagmalbhai (Deceased) Through L.R.s
and Ors. in Civil Appeal No. 1382 of 2022
decided on 03.03.2022. It is also contended
by learned counsel for the petitioners that
the plaintiff has been residing in the house
in dispute with the consent of the defendant
no. 1 and 2 who are the actual owner of the
property in dispute and at the best it could
be said that the plaintiff has been in
possession because of an implied license by
the parents which has come to an end and
therefore, the plaintiff has no right to
remain in possession over the house in
dispute and at the best, the plaintiff can ask
for damages for unlawful dispossession and
no injunction can be issue in favour of the
plaintiff who has no legal right to remain in
possession over the land in dispute.

8. I do not find any merit in the
submissions so made by learned counsel
for the petitioner and with force.

5.
Salmond
states
in
Jurisprudence (12th Edn.)

"few relationships are as
vital to man as that of possession, and we
may expect any system of law, however
primitive,
to
provide
rules
for
its
protection. . . . . . . Law must provide for
the safeguarding of possession. Human
nature being what it is, men are tempted to
prefer their own selfish and immediate
interests to the wide and long-term interests
of society in general. But since an attack on
a man's possession is an attack on
something which may be essential to him,
it becomes almost tantamount to an assault
on the man himself; and the possessor may
well be stirred to defend himself with force.
The result is violence, chaos and disorder."
(at pp. 265-66)

"In English Law possession
is a good title of right against anyone who
cannot show a better. A wrongful possessor
has the rights of an owner with respect to
all persons except earlier possessors and
except the true owner himself. Many other
legal systems, however, go much further
than this, and treat possession as a
provisional or temporary title even against
the true owner himself. Even a wrongdoer,
who is deprived of his possession, can
recover it from any person whatever,
simply on the ground of his possession.
Even the true owner, who takes his own,
may be forced in this way to restore it to
the wrongdoer, and will not be permitted to
set up his own superior title to it. He must
first give up possession, and then proceed
in due course of law for the recovery of the
thing on the ground of his ownership. The
intention of the law is that every possessor
shall be entitled to retain and recover his
possession, until deprived of it by a
judgment according to law." (Salmond,
ibid, pp. 294-95)

"Legal
remedies
thus
appointed for the protection of possession
even
against
ownership
are
called
1424 INDIAN LAW REPORTS ALLAHABAD SERIES
possessory, while those available for the
protection of ownership itself may be
distinguished as proprietary. In the modern
and medieval civil law the distinction is
expressed
by
the
contrasted
terms
petitorium
(a
proprietary
suit)
and
possessorium
(a
possessory
suit)."
(Salmond, ibid, p.295)

6. The law in India, as it has
developed, accords with the jurisprudential
thought as propounded by Salmond. In
Midnapur Zamindary Co. Ltd. Vs. Kumar
Naresh Narayan Roy and Ors. 1924 PC
144, Sir John Edge summed up the Indian
law by stating that in India persons are not
permitted to take forcible possession; they
must obtain such possession as they are
entitled to through a Court.

9. Full Bench of Allahabad High
Court in case of case of Yar Mohammad
and another v. Lakshmi Das and others
reported in AIR 1959 All 1, it has been
held by this Court that law respects
possession even if there is no title to
support it. It will not permit any person to
take the law in his own hands and to
dispossess the person in actual possession
without having recourse to a court. No
person can be allowed to become a judge in
his own cause. As observed by Edge, C.J.
in Wali Ahmad Khan v. Ayodhya Kundv
(ILR XIII Alld, 537 at 558)

"The object of the Section was to
drive the person who wanted to eject a
person into the proper court and to prevent
them from going with high hands and
ejecting such person."

10. In case of Lallu Yeshwant Singh
v. Rao Jagdish Singh and others reported
in AIR 1968 SC 620, it has been held by
the Apex Court that even when the land
lord forcibly enters on the land in
possession of the tenant whose tenancy has
expired would amount to a trespass. Para
no. 8 of the Lallu Yeshwant Singh (Supra)
is quoted as under:

"Some stress was laid on the
words "in case of proof of trespass" in s.
326 by the learned counsel for the
respondent. According to him, a landlord
does not commit trespass when he forcibly
enters on land in the possession of a tenant
whose tenancy has expired. In our view, in
the context, the word "trespass" here would
include forcible entry and dispossession by
the landlord. Reference was made to a
number of English authorities in this behalf
but it is not necessary to deal with them
because the law in India on this subject is
different. Under s. 9 of the Specific Relief
Act it is well-settled that question of title is
irrelevant in a suit under that section. As
the structure of s. 326 of Qanoon Mal, read
with s. 163 of Qanoon Ryotwari, is similar
to s. 9 of the Specific Relief Act, there is no.
reason why s. 326 should be interpreted
differently."

11. In K. K. Verma v. Naraindas C.
Malkani reported in ILR (1954) Bombay
950 at page 957, Chagla, C.J. stated that the
law in India was initially different from the
law in England, he observed:

"Under the Indian law the
possession of a tenant who has ceased to be
a tenant is protected by law. Although he
may not have a right to continue in
possession after the termination of the
tenancy his possession is juridical and that
possession is protected by statute. Under s.
9 of the Specific Relief Act a tenant who
has ceased to be a tenant may sue for
possession against his landlord if the
landlord
deprives
him
of
possession
3 All. Meera Awasthi & Anr. Vs. Ajeet Awasthi & Anr.
1425
otherwise than in due course of law, but a
trespasser who has 'been thrown out of
possession cannot go to Court under s. 9
and claim possession against the true
Owner."

12. In case of Ram Rattan and
others v. State of U.P. reported in AIR
1977 SC 619, it has been held by the Apex
Court that person in settled possession can
only be dispossessed even by the true
owner by taking recourse to the remedies
available to him under law. Relevant
portion of para no. 4 of Rama Rattan
(Supra) is quoted as under:

"It is well settled that 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. In view of the clear finding
of the High Court that the complainant
Ram Khelawan even after encroachment
had established his possession over the
land in dispute for two to three weeks
before the occurrence, for the purpose of
criminal law, the complainant must be
treated to be in actual physical possession
of the land so as to have a right of private
defence to defend his possession even
against the true-owner."

While it may not be possible to
lay down a rule of universal application as
to when the possession of a trespasser
become complete and accomplish.

13. In case of Puran Singh and
another v. State of Punjab reported in
AIR 1975 SC 1674, in para no. 11 of the
aforesaid judgment, the Apex Court has
held as under:

"11. In this case there was a
concurrent finding of fact that Jamuna was
in effective possession of the field on the
date of occurrence and the prosecution had
alleged that P.Ws 17 and I had taken
possession of the property but the finding of
the Court was that P.Ws 17 and 19 had not
been put in possession by virtue of the
delivery of possession given by the Court. It
was
against
this
context
that
the
observations referred to above were made.
This Court clearly pointed out that where a
trespasser was in settled possession of the
land he is not entitled to be evicted except
in due course of law and be is further
entitled to resist or defend his possession
even against the rightful owner who tries to
dispossess him. The only condition laid
down by this Court was that the possession
of the trespasser must be settled possession.
The Court explained that the settled
possession must be extended over a
sufficiently long period and acquiesced in
by
the
true
owner.
This
particular
expression has persuaded the High Court
to hold that since the possession of the
appellants party in this case was only a
month old, it cannot be deemed to be a
settled possession. We, however, think that
this is not what this Court meant in
defining
the
nature
of
the
settled
possession. It is indeed difficult to lay down
any hard and fast rule as to when the
possession of a trespasser can mature into
a settled possession. But what this Court
really meant was that the possession of a
trespasser must be effective, undisturbed
and to the knowledge of the owner or
1426 INDIAN LAW REPORTS ALLAHABAD SERIES
without any attempt at concealment. For
instance a stray or a casual act of
possession would not amount to settled
possession. There is no special charm or
magic in the word 'settled possession' nor is
it a ritualistic formula which can be
confined in a strait jacket but it has been
used to mean such clear and effective
possession of a person, even if he is a
trespasser, who gets the right under the
criminal law to &fend his property against
attack even by the true owner. Similarly an
occupation of the property by a person as
an agent or a servant at the instance of the
owner will not amount to actual physical
possession. Thus in our opinion the nature
of possession in such cases which may
entitle a trespasser to exercise the right of
private defence of property and person
should contain the following attributes:

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

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

(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, in which case
the trespasser will have a right of private
defence and the true owner will have no
right of private defence. These principles
logically flow from a long catena of cases
decided by this Court as well as other High
Courts some of which have been referred to
in the judgment of this Court in Munshi
Ram's case, AIR 1968 SC 706= (1968 Cri
LJ 806) (supra)."

14. In case of State of U.P. and
another
v.
Maharaja
Dharmander
Prasad Singh etc. reported in AIR 1989
SC 997, the Apex Court has held as under:

"A lessor, with the best of title,
has no right to resume possession extrajudicially by use of force, from a lessee,
even after the expiry or earlier termination
of the lease by forfeiture or otherwise. The
use of the expression 're- entry' in the leasedeed does not authorise extrajudicial
methods to resume possession. Under law,
the possession of a lessee, even after the
expiry or its earlier termination is juridical
possession and forcible dispossession is
prohibit-
ed;
a
lessee
cannot
be
dispossessed otherwise than in due course
of law. In the present case, the fact that the
lessor is the State does not place it in any
higher or better position. On the contrary,
it is under an additional inhibition
stemming from the requirement that all
actions of Government and Governmental
authorities should have a 'legal pedigree'.
In Bishandas v. State of Punjab, (1962) 2
SCR 69: (AIR 1961 SC 1570), this Court
said (at pp. 1574 and 1573 of AIR):

"We must, therefore, repel the
argument based on the contention that the
petitioners were trespassers and could be
removed by an executive order. The
argument is not only specious but highly
dangerous by reason of its implications and
impact on law and order."

"Before we part with this case, we
feel it our duty to say that the executive
action taken in this case by the State and its
officers is destructive of the basic principle
of the rule of law."
3 All. Meera Awasthi & Anr. Vs. Ajeet Awasthi & Anr.
1427

Therefore, there is no question in
the present case of the Government
thinking of appropriating to itself an extrajudicial right of re-entry. Possession can be
resumed by Government only in a manner
known to or recognised by law. It cannot
resume possession otherwise than in
accord- ance with law. Government is,
accordingly,
prohibited
from
taking
possession otherwise than in due course of
law."

15. In case of Krishna Ram Mahale
(dead) by his L.R.s, v. Mrs. Shobha
Venkat Rao reported in 1989 SC 2907, in
para no. 8 of the judgment, the Apex Court
has held as under:

"8.
Mr.
Tarkunde,
learned
Counsel for defendant No. 3, the appellant
herein, rightly did not go into the
appreciation of the evidence either by the
Trial Court or the High Court or the
factual conclusions drawn by them. It was,
however, strongly urged by him that the
period of licence had expired long back and
the plaintiff was not entitled to the renewal
of licence. It was submitted by him that in
view of the licence having come to an end,
the plaintiff had no right to remain in
charge of the business or the premises
where it was conducted and all that the
plaintiff could ask for was damages for
unlawful dispossess ion even on the footing
of facts as found by the High Court. We find
ourselves totally unable to accept the
submission of Mr. Tarkunde. It is a wellsettled law in this country that 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.

16. In case of Krishna Ram Mahale
(Supra), the Apex Court held that the
respondents as she filed suit for recovery of
possession of premises upon which she had
entered as licensee to conduct the business
of
restaurant,
she
was
subsequently
dispossessed by the licenser unlawfully and
behind her back, she was entitled with
decree for recovery of possession. Since
she was unlawfully dispossessed, it could
not be said that the license having expired
long back and the plaintiff not being
entitled to renewal of license could only
ask for damages for unlawful possession.

17. In case of Samir Sobhan Sanyal
v. Tracks Trade Private Ltd. and others
reported in (1996) 4 SCC 144. The Apex
Court has held as under in paragraph no. 6
of the aforesaid judgment:

"6. It would thus be clear that
without any decree or order of eviction of
the appellant from the demised premises, he
has been unlawfully dispossessed from the
premises without any due process of law.
The question, therefore, is: whether he
should be allowed to remain in possession
till his application under Order 21, Rules
98 and 99 is adjudicated upon and an order
made. Though the learned counsel for the
1st respondent and also for the 3rd
respondent, who is one of the transferees
from the 6th respondent, sought to contend
that the appellant has no right to remain in
possession after the lessee, M/s. India Foils
Ltd. had admitted by a resolution that the
appellant has no right to remain in
possession, we are not impressed with the
arguments. At this state, we are only
concerned with his admitted possession of
the demised premises. What rights would
flow from a contract between him and him
employer is a matter to be adjudicated in
his application filed under Order 21, Rules
1428 INDIAN LAW REPORTS ALLAHABAD SERIES
98 3nd 99, CPC. At this stage, it is pre-
mature to go into and record any finding in
that behalf. The learned counsel for the 1st
respondent also repeatedly sought to bring
to our notice that on account of the orders
of the Court Officer passed by the High
Court the maintenance cost has been
mounting up due to the delay in disposal of
the proceedings in various courts. Even
with regard to that, we are not impressed
with the same. Since the letter of the law
should strictly be adhered to, we find that
high-handed action taken by the respondent
Nos. 1, 3 and 6 in having the appellant
dispossessed without due process of Haw,
cannot be overlooked nor condoned. The
Court cannot blink at their unlawful
conduct to dispossess the appellant from
demised property and would say that the
status quo be maintained. If the Court gives
acceptance to such high-handed action,
there will be no respect for rule of law and
unlawful elements would take hold of the
due process of law for ransom and it would
be a field day for anarchy. Due process of
law should be put to ridicule in the estimate
of the law-abiding citizens and rule of law
would remain a mortuary."

18. In case of Rame Gowda (Dead)
by Lrs. v. M. Varadappa Naidu (Dead)
by Lrs. and another reported in (2004) 1
SCC 769, the Apex Court considering the
law on subject has held as under:

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

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 defendantappellant 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

Where the suit for declaration of
title and injunction is filed and the title is
not clear, the question of title will have to
be kept open without denying the plaintiff's
claim for injunction in view of the fact that
the plaintiff has been in possession and
3 All. Meera Awasthi & Anr. Vs. Ajeet Awasthi & Anr.
1429
there is nothing to show that the plaintiff
has gained possession by any unfair means
just prior to the suit. 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.

(Paras 7, 8, 11 & 12)"

19.

Again
in
case
of
Subramaniaswamy Temple, Ratnagiri
Vs. V. Kanna Gounder (Dead) by Lrs.
reported in 2009 (106) RD 77, the Apex
Court has held in para no. 11 & 13 as
under:

"11. It is now well settled that in
India, nobody can take possession of an
immoveable property except in accordance
with law. Respondent was a licensee under
the appellant. He was evicted from the shop
which was allotted in his favour. If he had
encroached
upon
a
portion
of
the
Poramboke land, he could have been
evicted by the temple on the basis of its
possessory title.

12. If, thus, the temple was in
prior possession of the land which would
be evident from the classification made by
the State Government and recognition of its
right thereover, it also had right to initiate
proceedings in a civil court for eviction of a
rank trespasser. In a case of this nature, the
court was required to consider as to who
was in prior possession. Only in the event
the respondent was in a position to show
that he had a better title, he could continue
with the possession. The only defence taken
by him was that the suit land pertains to
Survey No.144 and not Survey No.370/1.
Such a contention has been negatived by
the trial court as also by the first appellate
court. A finding of fact had been arrived at.
Having regard to the concurrent finding of
fact as regards the possession of the
parties, vis-a-vis, their respective title in
and over the suit land. The High Court,
while exercising its jurisdiction under
Section 100 of the Code of Civil Procedure,
was required to formulate a substantial
question of law which might have arisen for
its consideration. No question of law was
framed far less any substantial question of
law relating to identification of the
property. The High Court, therefore, in our
opinion completely misdirected itself in
passing the impugned judgment.

13. The law operating in this
connection having been noticed by this
Court in Rame Gowda (D) by Lrs. v. M.
Varadappa Naidu (D) by Lrs. and Anr.
[(2004) 1 SCC 769], we need not enter into
a deeper probe. Therein it was held :

"8. 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 the 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
1430 INDIAN LAW REPORTS ALLAHABAD SERIES
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 flimsy 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 the
cases, the possession of the trespasser, just
entered into would not be called as one
acquiesced to by the true owner.

9. It is the settled possession or
effective possession of a person without
title which would entitle him to protect his
possession even as against the true owner.
The concept of settled possession and the
right of the possessor to protect his
possession against the owner has come to
be settled by a catena of decisions."

20. In case of Ranjit Kaur v.
Harmohinder Singh (Major) and others
reported in 2012 (1) AWC 14 (SC), the
Apex Court in para no. 11 has held as
under:
"11. However, we find merit in the
arguments of learned senior counsel for the
appellant that the High Court was not
justified in vacating the restraint order
passed by the trial Court against the
dispossession of his client. Learned counsel
is right in his submission that even though
in the decree of divorce, the appellant has
not been given a right of residence and her
occupation of the suit property can be
treated as unauthorized, respondent No. 1
cannot evict her except after following the
procedure established by law. The material
placed on record shows that the appellant
had entered into the property as the wife of
respondent No. 1. Therefore, even though,
after passing of the decree of the divorce
she may not have a legal right to continue
to remain in possession of the suit property,
respondent No. 1 cannot be given liberty to
forcibly
evict
her."
21.
In
case
of
Hanumanthappa
v.
Muninarayanappa (Supra), relied upon by
the learned counsel for the petitioner, is not
applicable to the facts of the present case as
in Hanumanthappa v. Muninarayanappa
(Supra), the appellant was in possession
over the property in dispute pursuant to a
compromise decree. The Apex Court held
that appellant being in lawful possession of
the property as an owner and the
respondents being
not
party to the
compromise decree, no injunction can be
issued against the appellant lawful owner.
22. In case of Padhiyar Prahladji Chenaji
(Supra), the Apex Court was considering
the question whether in a case where
plaintiff has lost so far as the title is
concerned and the defendant against whom
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 his title
is concerned and can thereafter, the plaintiff
be permitted to content that despite the fact
that the plaintiff has lost so far as title is
concerned, her possession be protected by
way of injunction and that the true owner
has to file a substantive suit claiming
possession. Para no. 9 of the judgment is
quoted
as
under:
"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,
3 All. Meera Awasthi & Anr. Vs. Ajeet Awasthi & Anr.
1431
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.