# Ram Singh v. Amar Singh & Ors

- **Citation:** (2023) 2 ILRA 54
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-19
- **Case number:** Second Appeal No. 313 of 1997
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-singh-v-amar-singh-ors-49711
- **Pages:** 10

## Headnote

Sri K.K. Tiwari, Sri S.K. Pandey, Sri A. Singh
Jadaon, Sri Anil Kumar Yadav, Sri Anil
Singh, Dr. G.S.D. Mishra, Sri J.S. Tomar, Sri
Kripa Shanker Yadav, Sri Pradeep Saxena,
Sri R.S. Tomar

A. Civil Law - Civil Procedure Code, 1908Section
100-Permanent
prohibitory
injunction-Substantial question of lawLower Appellate Court dismissed the suit
on the ground of absence of cause of
action-Appellate court dismissed it for the
plaintiff's failure to prove his case by
evidence regarding the threat to his
peaceful possession- Indeed, a cause of
action disclosed by the plaintiff in his
pleadings in ample measure that he is able
to prove his title and possession but the
suit being one for injunction to protect the
plaintiff's possession from a threatened
act of defendants-the dismissal of his suit
would in no way debar the plaintiff from
bringing in an action to protect his
possession, should there be ever in future
a threat to his peaceful possession of the
suit
property
at
the
hands
of
the
defendants
or
anyone
else
claiming
through or under them-The cause of
action in the suit is a very limited one and
it is only that which the plaintiff has not
been able to prove, to wit, a threatened
2 All. Ram Singh Vs. Amar Singh & Ors.
55
invasion of the plaintiff's possession by
the
defendants,
which
needs
to
be
protected-It is well settled principle of law
that injunction can be issued only on proof
of
actual
interference
or
threat
of
interference and not in the absence of
it.(Para 1 to 41)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

54 INDIAN LAW REPORTS ALLAHABAD SERIES
Teacher with the Basic Education Board
and further about various criminal cases
pending between the parties, hence, a
petition sought to be filed in public interest
by him cannot be entertained. In our
opinion, present petition deserves to be
dismissed with special cost.

22. The present writ petition is,
accordingly, dismissed with cost of ₹
1,00,000/- which shall be deposited by
petitioner No. 2 with the District Legal
Services Authority, Bareilly within one
month from today. On failure, the Basic
Education Officer, Bareilly shall be entitled
to recover the amount from the salary of
petitioner No. 2 in five installments of ₹
20,000/-, as his salary is stated to be about
₹ 70,000/- per month.

23. Before we part with the order, we
are
constrained
to
note
that
the
instructions received by the State Counsel
are not complete and comprehensive. The
credentials of the petitioner No. 2 have not
been mentioned, though it is part of the
record as number of criminal cases have
been registered against petitioner No. 2
and he is in litigation with the private
respondents. The fact that he is a working
Assistant
Teacher
with
the
Basic
Education Board has also not been
mentioned. The Basic Education Board
may take appropriate action against
petitioner No. 2 for misconduct and
violation of service Rules as he is also
claiming himself to be the President of
petitioner No. 1.

24. Let copy of the order passed today
be communicated to the Secretary, Basic
Education Board, U.P., Lucknow and the
Basic Education Officer, Bareilly by the
Registrar (Compliance).
----------
(2023) 2 ILRA 54
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.01.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 313 of 1997

Ram Singh ...Appellant
Versus
Amar Singh & Ors. ...Respondents

Counsel for the Appellant:
Mr. Vijay Kumar Rai, Sri K.D. Tiwari, Sri
K.D. Tripathi, Sri Shadab Ali

Counsel for the Respondents:
Sri K.K. Tiwari, Sri S.K. Pandey, Sri A. Singh
Jadaon, Sri Anil Kumar Yadav, Sri Anil
Singh, Dr. G.S.D. Mishra, Sri J.S. Tomar, Sri
Kripa Shanker Yadav, Sri Pradeep Saxena,
Sri R.S. Tomar

A. Civil Law - Civil Procedure Code, 1908Section
100-Permanent
prohibitory
injunction-Substantial question of lawLower Appellate Court dismissed the suit
on the ground of absence of cause of
action-Appellate court dismissed it for the
plaintiff's failure to prove his case by
evidence regarding the threat to his
peaceful possession- Indeed, a cause of
action disclosed by the plaintiff in his
pleadings in ample measure that he is able
to prove his title and possession but the
suit being one for injunction to protect the
plaintiff's possession from a threatened
act of defendants-the dismissal of his suit
would in no way debar the plaintiff from
bringing in an action to protect his
possession, should there be ever in future
a threat to his peaceful possession of the
suit
property
at
the
hands
of
the
defendants
or
anyone
else
claiming
through or under them-The cause of
action in the suit is a very limited one and
it is only that which the plaintiff has not
been able to prove, to wit, a threatened
2 All. Ram Singh Vs. Amar Singh & Ors.
55
invasion of the plaintiff's possession by
the
defendants,
which
needs
to
be
protected-It is well settled principle of law
that injunction can be issued only on proof
of
actual
interference
or
threat
of
interference and not in the absence of
it.(Para 1 to 41)

The appeal is dismissed. (E-6)

List of Cases cited:
1. Hafiz Muhammad Ibrahim & ors.. Vs Pande
Chandan Singh & ors.. (1921) 63 Ind Cas 727

2. R.G. Janthakal Vs Bharat Parikh & Co. (1981)
SCC OnLine Kar 72

3. Barid Baran Laha Vs Manjuri Ghoshal (2011)
SCC OnLine Cal 204

(Delivered by Hon'ble J.J. Munir, J.)

This is a plaintiff's second appeal
arising out of a suit for permanent
prohibitory injunction.

2. This appeal was admitted to
hearing on 1st of April, 1997 on the sole
substantial question of law, to wit:
"Whether on the basis of positive averments
in the written statement of the defendants
that they were owner of the suit property on
the basis of the Will and were in possession
of the suit property as against the plaintiff's
case of the title and possession, lower
appellate Court should have dismissed the
suit on the mere ground of absence of cause
of action?"

3. The facts giving rise to this appeal
are these:

Ram Singh instituted Original
Suit No. 494 of 1992 in the Court of the
Munsif, Rampur against Amar Singh and
six other defendants, seeking relief of
permanent prohibitory injunction to the
effect that the defendants, their servants
and agents be restrained from forcibly
dispossessing the plaintiff from the suit
property comprising Plot Nos. 82 and 190
or interfering in his possession in any
manner whatsoever. Amar Singh, defendant
No. 1 is the plaintiff's father's brother,
whereas other defendants are said to be his
father's brother's sons. The plaintiffappellant,
Amar
Singh,
who
shall
hereinafter be called ''the plaintiff', was a
young man of 20 years, when he instituted
the suit. His father, Kunwar Sen passed
away after a brief illness on 13th of
January, 1990. He was otherwise fit and
healthy and aged about 50 years at the time
of his demise. The plaintiff's father was the
bhumidhar in possession of Plot No. 82,
admeasuring 0.097 hectare and Plot No.
190, admeasuring 0.507 hectare, situate at
Village Sendu Kaa Majra, Tehsil Swar,
District Rampur. The said property shall
hereinafter be called ''the suit property'.

4. Upon the sudden death of the
plaintiff's father, the plaintiff was left all
alone, his mother having pre-deceased his
father. The suit property, in consequence of
his father's death, devolved upon the
plaintiff and his name was recorded in the
revenue records on 05.02.1990 by intestate
succession. The plaintiff, thus, became
bhumidhar in possession of the suit
property.

5. It is the plaintiff's case that
defendant No.1, his father's brother and the
other defendants, his cousins, are vicious
men, who harbour foul intentions. The
defendants, without any right, foster the
desire to take possession of the suit
property, harm the plaintiff, posing a threat
to his life and property. The defendants'
intention is to usurp the plaintiff's property.
It is the plaintiff's case that the defendants
56 INDIAN LAW REPORTS ALLAHABAD SERIES
have no title, interest or share in the said
property nor are they in possession thereof.
The defendants allege some kind of a right
to the suit property on the basis of a Will.
After the demise of the plaintiff's father, the
defendants in order to harm the plaintiff,
have secured some bogus and fictitious
Will, purportedly executed by the plaintiff's
father in the defendants' favour.

6. It is the plaintiff's case that his
father was in good health and died after a
brief illness. The Will attributing to him a
testamentary disposition is the product of
forgery. It is void. It has no binding effect
upon the plaintiff. The plaintiff is the only
son and the sole heir entitled to inherit his
father's estate.

7. According to the plaint case, the
defendants, without any right and in breach
of the law, on 21.07.1992 attempted to
forcibly trespass into the suit property and
endeavoured to till it. They wanted to
forcibly dispossess the plaintiff, but with
the aid of third parties, the plaintiff repelled
the
attempted
encroachment
by
the
defendants. The defendants, however, went
away extending death threats as also threats
about forcibly taking possession of the suit
property. It is then averred that in the event
the
defendants
succeed
in
forcibly
dispossessing the plaintiff, he would suffer
irreparable loss and injury. The defendants,
upon the plaintiff's efforts to amicably
settle the matter, have declined, forcing the
plaintiff to institute the present suit.

8. Defendants Nos. 1 to 6 put in a joint
written statement. They generally denied the
plaintiff's allegations and mostly pleaded
through additional pleas. It is not disputed by
the defendants that the recorded tenure holder
of the suit property was Kunwar Sen, the
plaintiff's father. In his lifetime, Kunwar Sen,
according to the defendants, had executed a
Will in the defendants' favour. After Kunwar
Sen's demise, it is the defendants, who are in
possession, tilling and reaping the crops. The
defendants sought mutation of their names on
the basis of the Will left behind by Kunwar
Sen by moving the Tehsildar, Swar, District
Rampur. The Tehsildar vide his order dated
26.07.1990 passed in Case No. 164/89-90
had ordered mutation of the defendants' name
alongside the plaintiff on the basis of Kunwar
Sen's last Will and testament.

9. The defendants and the plaintiff are
co-sharers and co-tenure holders of the suit
property, wherein the plaintiff had a one-third
share. According to the defendants, on
05.02.1990, the plaintiff in connivance with
the Kanoongo and the Lekhpal had got the
entire suit property recorded in his name
illegally, but the Kanoongo's order dated
05.02.1990 was set aside by the Tehsildar,
Swar vide his order dated 26.07.1990. Since
the plaintiff and the defendants are co-sharers
and co-tenure holders in the suit property, the
plaintiff is not entitled to an injunction.

10. It is the defendants' further case that
defendant No. 7, Harish Chandra is a minor,
aged 12 years. The plaintiff has not
proceeded against him in accordance with the
provisions of Order XXXII Rule 1 of the
Code of Civil Procedure, 1908 (for short, ''the
Code'). The suit deserves to be dismissed on
this ground. The plaintiff has played fraud on
the Court and secured a temporary injunction
on insufficient ground. Now, he wants a
decree likewise. The defendants, on the basis
of the aforesaid case, have asked the suit to
be dismissed with special cost.

11. Upon the pleadings of parties,
the following issues were framed by the
Trial Court (translated into English from
Hindi):
2 All. Ram Singh Vs. Amar Singh & Ors.
57

"1. Whether the plaintiff is the
bhumidhar in possession of Plot No. 82,
admeasuring 0.097 hectare and Plot No.
190, admeasuring 0.507 hectare?

2. Whether the plaintiff has no
cause of action to institute the suit?

3. Whether the true owner of the
property in dispute was Kunwar Sen, who
left a Will in favour of the defendants and
after his demise, it is the defendants alone,
who are the owners in possession of the
property in dispute?

4.
Whether
the
suit
is
undervalued
and
the
court-fee
paid
insufficient?

5. Whether defendant No. 7,
Harish Chandra is a minor and the suit is
barred by the provisions of Order XXXII
Rule 1 CPC?

6. To what relief is the plaintiff
entitled?"

12. The plaintiff, in support of his
case, examined three witnesses, to wit, PW1, Ram Singh, the plaintiff himself, Gokal,
PW-2 and Ram Lal, PW-3. On behalf of the
defendants, two witnesses were examined,
that is to say, Amar Singh, DW-1, who is
defendant No. 1 to the suit and Sukhlal,
DW-2.

13. None of the Courts have referred
to a summary of the documentary
evidence in the impugned judgments, but
on going through the records, this Court
finds
that
the
plaintiff
filed
two
documents through a list, paper No. 9-C.
The first of these documents is Ex. 1, a
certified copy of an extract of the Six
Yearly Khatauni for the fasli years 13951400, issued on 09.08.1990, relating to
the suit property. The other document
filed by the plaintiff bears Ex. No. 2. It is
a Khasra relating to the suit property for
the Fasli Year 1399.

14. On behalf of the defendants, an
extract of a certified copy of the Six Yearly
Khatauni for the period 1395-1400 Fasli
was filed and marked as Ex. Ka-1.

15. The learned Munsif, who tried the
suit, found for the plaintiff on Issues Nos. 1
and 3 as well as Issue No. 2. Issue No. 5
was also decided in favour of the plaintiff
and against the defendants. In consequence
of his findings on the various issues, the
learned Munsif decreed the suit by his
judgment and decree dated 30.03.1996.

16. The defendants - all seven,
appealed the Munsif's decree to the District
Judge of Rampur vide Civil Appeal No. 40
of 1996. The appeal came up for hearing
before the Additional District Judge-III,
Rampur on 18.12.1996, who allowed the
appeal by his judgment and decree of the
said date, reversing the Trial Court and
dismissing the suit.

17. Aggrieved, the plaintiff has
preferred the instant appeal from the
appellate decree.

18. Heard Mr. Vijay Kumar Rai,
learned Counsel for the plaintiff and Mr.
K.K. Tiwari, learned Counsel appearing on
behalf of the defendants.

19. Both the Courts below have
concurrently opined that the plaintiff is the
owner in possession of the suit property.
Apparently, the plaintiff has inherited the
suit property from his father, Kunwar Sen,
whose title is not disputed by the
defendants either. The plaintiff is the only
heir entitled to succeed to his father's
bhumidhari. The Courts below have
accepted that the plaintiff succeeded to it
and
also
established
his
cultivatory
possession over the same. The plaintiff is
58 INDIAN LAW REPORTS ALLAHABAD SERIES
recorded in the revenue records, also on
that basis. The defendants, no doubt, have
attempted
to
question
the
plaintiff's
exclusive title by succession and set up a
Will, that has not seen the light of the day
in the suit. It was never produced in
evidence by the defendants.

20. The defendants have merely
asserted a co-sharers' right, which they
have got on the basis of a Will that they
claim was left in their favour by Kunwar
Sen. The Will never being produced in
evidence before the Courts below by the
defendants, much less proved by examining
the marginal witnesses in the manner
provided by law, the Courts below have
rightly discarded the defendants' case. The
plaintiff's case, based on succession, has
been accepted, both about title and
possession to the suit property. But, the
question here is whether the plaintiff's
possession has been threatened by the
defendants, which may be protected by the
Court's injunction.

21. The plaintiff wants his possession
protected, because the defendants by their
stand in their written statement and
elsewhere in proceedings for mutation,
have challenged the plaintiff's exclusive
title and possession to the suit property on
the basis of Kunwar Sen's alleged Will. The
revenue authorities have not accepted the
defendants' case to be recorded on the basis
of the Will that they propound; nor have the
Courts below. As already said, the moot
question
is:
whether
the
defendants
asserting a right to the suit property,
claiming a share therein, is threat enough or
a threat at all to the plaintiff's possession in
the suit property? This is what the
substantial question involved in this appeal
is about.

22. The learned Munsif has regarded
the threat emanating from the defendants'
stand in the written statement and evidence
claiming a right on the basis of Kunwar
Sen's alleged Will to be good enough to
constitute a cause of action for the plaintiff
to
seek
injunction,
protecting
his
possession.
The
learned
Munsif
has
construed the cause of action in the widest
sense of the term to include all facts on
record, that may entitle the plaintiff to
relief. In the learned Munsif's view, the
stand of the defendants, claiming in
derogation of the plaintiff's right a share in
the suit property on the basis of the Will
must be held to be a cause of action,
entitling the plaintiff to an injunction,
protecting his possession. He has also
looked into some evidence of a threatened
dispossession that he has regarded as
sufficient to translate the defendants' claim
to the suit property into a threatened
invasion of the plaintiff's right, which the
plaintiff is entitled to protect by the Court's
injunction.

23. The learned Counsel for the
plaintiff before us has argued in the same
vein to submit that given the acknowledged
stand of the defendants, which is in
derogation of the plaintiff's exclusive title
and possession, the plaintiff cannot be nonsuited for want of a cause of action, which
the Lower Appellate Court has done.

24. The learned Counsel for the
defendants has said that there is absolutely
no evidence about any kind of a trespass or
an apprehended trespass by the defendants
in the suit property, entitling the plaintiff to
an injunction.

25. The Lower Appellate Court has
looked into the plaintiff's case in the plaint
2 All. Ram Singh Vs. Amar Singh & Ors.
59
and his evidence in the witness-box, where
he has testified as PW-1.

26. Upon a careful scrutiny of the
plaintiff's plea regarding the threatened
invasion of his right and his testimony in
the witness-box, the Lower Appellate Court
has come to the conclusion that the plaintiff
in his evidence failed to support his case
about
a
trespass
or
threatened
encroachment of the suit property by the
defendants so as to disclose a cause of
action for the grant of an injunction.

27. The Lower Appellate Court has
taken note of the fact that the suit is not one
for cancellation of the Will that the
defendants have propounded to lay claim to
the suit property. It is to prevent an
unauthorized
act
of
apprehended
dispossession or encroachment into the suit
property, that is, the cause of action and the
relief claimed by the plaintiff is to prevent
that encroachment. The Lower Appellate
Court has particularly considered the
plaintiff's cross-examination with reference
to his pleaded case to find that there is no
threat to his possession by the defendants,
which the plaintiff seeks to be protected by
the Court's injunction.

28. This Court will also briefly allude
to the plaintiff's case and evidence to
answer the substantial question of law
involved in this appeal, but before that is
done, it is imperative to do a survey of the
law bearing on the point as to what a
plaintiff must establish in order to succeed
in an action brought to protect his
possession, may be backed by title, from a
claimed encroachment by the defendant. It
is one thing to establish for the plaintiff that
he has title to the suit property and also that
he has possession; but, quite another to
establish his case for the grant of an
injunction to protect it. Even if the plaintiff
does not have the title to the suit property,
but establishes his settled possession, he is
entitled to be protected absolutely against
everyone, except the true owner or one who
has title. The plaintiff may also be entitled
to protect his possessory title against the
true owner or the title-holder by a limited
injunction, not to be dispossessed, except in
accordance with law. But, that is besides
the point and mentioned in order to place
the question involved here in perspective.

29. No doubt, the plaintiff here has
both title and possession to the suit
property and there is no issue about it. The
question is what cause of action must the
plaintiff disclose and then prove, in order to
entitle him to an injunction to protect his
possession, founded on title or possessory
title. The cause of action to protect
possession
must
emanate
from
an
allegation about a threatened dispossession
at the hands of the defendants. The
threatened
dispossession
being
an
apprehended injury must be proved by the
plaintiff through unimpeachable evidence.
If the plaintiff does not plead at all that he
has a threat to his possession as regards the
suit property, it may be said that he has no
cause of action. If he alleges threat in his
pleadings, but fails to prove it to the hilt by
unimpeachable evidence, it would be a case
for failure of his action; not a case of nondisclosure of a cause of action. Here, it is
the former case; not the latter.

30. The plaintiff in paragraph Nos. 5,
8, 9 and 10 of the plaint has pleaded as
follows:

"5- यह दक वािी अपने दपिा का
अकेला पुत्र है। प्रदिवािीगण दनहायि असरिार
व शरपसन्द िथा बिदनयि दकस्म के व्यस्ि हैं
60 INDIAN LAW REPORTS ALLAHABAD SERIES
और वह दबला हक व स्खलाफ वािी की आराजी
का वािी को अकेला जानकर कब्जा करना
चाहिा है िथा वािी को जानी व माल नुकसान
पांहुचाना चाहिे हैं िथा प्रदिवािीगण हर समय
जान से मारने की दफक्र में लगे हुए हैं िादक वािी
को जान से मारकर उसकी समस्त जायिाि
हडप लें।

8- यह दक प्रदिवािीगण ने दबला
हक व स्खलाफ कानून दिनाांक 21.07.1992
को आराजी दनजाई पर जबरिस्ती कब्जा
करने िथा उसे जोिने की कोदशश की और
वािी को जबरिस्ती आराजी दनजाई से
बेिखल करना चाहा लेदकन वािी ने िीगर
लोगोां की मिि से प्रदिवािीगण को उनके
मकसि में कामयाब नहीां होने दिया लेदकन
प्रदिवािीगण वािी को आइन्दा मारने व
आराजी दनजाई पर जबरिस्ती कब्जा करने
की धमकी िेिे हुए चले गये।

9- यह दक अगर प्रदिवािीगण अपने
मकसि में कामयाब हो गए और उन्ोांने वािी
की आराजी पर जबरिस्ती कब्जा कर दलया
िो वािी को नाकादबले िलाफी नुकसान होगा
िथा वािी िबाह व बबाषि हो जायेगा।
प्रदिवािीगण मना करने पर सुनवा नहीां हो रहे
हैं मजबूरन वािी नादलशी है।

10- यह दक दबनाये िावा व िारीख
21.07.1992 को प्रदिवािीगण द्वारा वािी को
आराजी दनजाई से जबरिस्ती बेिखल करने
की कोदशश करने से िथा मना करने पर
सुनवा न होने से बमुकाम रामपुर अन्दर हिूि
अिालि हाजा पैिा हुआ िथा न्यायालय को
वाि की सुनवाई का क्षेत्रादधकार प्राप्त है।"

31. The plaintiff, who has testified
in the witness-box as PW-1, has stated
thus in his examination-in-chief:

"दववादिि आराजी पर प्रदिवािीगण
जबरिस्ती कब्जा करना चाहिे थे इसदलए मैंने
िावा कर दिया। प्रदिवािीगण के दवरुद्ध मैंने
िहसीलिार स्ार के यहाां कायषवाही की थी
दजससे इनका नाम खाररज हो गया था और
खिौनी में भी उसका अमल िरामि हो गया था।
प्रदिवािीगण बिदनयिी के िौर पर मेरी आराजी
पर नाजायज कब्जा करना चाहिे हैं दजसका
उन्ें कोई अदधकार नहीां है।"

32. By contrast, in his crossexamination, testifying as PW-1, has said:

"...... मैंने यह िावा इसदलए दकया है
दक वसीयिनामा झूठा है खाररज दकया जाये इसी
बाि के बाबि मैंने अिालि से सहायिा माांगी है।
उस वसीयिनामे की िारीख मुझे याि नहीां
दजसको मैंने खाररज कराना चाहा हो। मैंने दसफष
यही सहायिा माांगी है दक वसीयिनामा फजी है
उसकी जाांच की जाये।

...... प्रदिवािीगण जोिने बोने कभी
नहीां आये न उन्ोांने कोई हक माांगा। अब से चार
पाांच वर्ष पहले भी उन्ोांने नहीां जोिा बोया । यह
कहना गलि है दक 21.7.92 को प्रदिवािीगण
दववादिि सम्पदि को जोिा हो और िब से मैं ही
जोि बो रहे हैं।"

 (emphasis by Court)

33. The other witness examined on
behalf of the plaintiff, that is to say, PW2, has also not spoken a word in his entire
testimony about a threat of dispossession
or encroachment by the defendants that
the plaintiff has faced in the past, or still
faces. PW-3 has, likewise, also not said
anything in his testimony relating to a
threat of encroachment faced by the
plaintiff. All these witnesses have denied
execution of the Will by Kunwar Sen in
the defendants' favour and affirmed the
fact that the plaintiff is in cultivatory
possession of the suit property after his
father's demise.
2 All. Ram Singh Vs. Amar Singh & Ors.
61

34. The plaintiff in his crossexamination has explicitly said that he has
instituted the present suit, because he wants
the Court to cancel the Will, which is
bogus. He has made it explicit that the only
assistance he wants from the Court is to
examine the validity of the forged Will that
the defendants propounds. The plaintiff has
then gone on to say in his crossexamination that the defendants have never
come over to cultivate the suit property nor
have they demanded any right in it. They
have not cultivated the suit property 4-5
years back either. The most crucial words
by PW-1 in his cross-examination are that it
is incorrect to say that on 21.07.1992, the
defendants tilled the suit property. Rather,
the plaintiff said about himself that he is
cultivating it ever since.

35. A perusal of the plaintiff's
testimony does not speak a word about a
threatened invasion of his possession in the
suit property. Rather, he disowns any threat
to his possession ever being extended by
the defendants. It is for the said reason that
the Lower Appellate Court has held the
plaintiff disentitled to an injunction saying
that there is no cause of action disclosed. In
saying that, the Lower Appellate Court has
gone slightly wrong, as already indicated
hereinabove. A cause of action is indeed
disclosed by the plaintiff very categorically
in his pleadings, but he has not been able to
prove
his
case
of
threatened
or
apprehended dispossession from the suit
property by the defendants by his evidence.
This is not to say that the plaintiff has not
been able to prove his title or possession to
the suit property, which he has done in
ample measure. Rather, it is the defendants,
who have not been able to establish their
title to the suit property on the basis of the
Will that they propound. They have also
not been able to establish their possession
in the suit property.

36. The suit being one for injunction
to protect the plaintiff's possession from a
threatened or impending act of disturbance
thereof by the defendants, it was incumbent
for the plaintiff to prove that. The plaintiff
appears to have led evidence to establish
his succession and dispel the defendants'
Will by his evidence as if it were a suit to
declare the defendants' Will void or seek a
cancellation thereof. But, that is not what
the suit is about. The cause of action in the
suit is a very limited one and it is only that
which the plaintiff has not been able to
prove, to wit, a threatened invasion of the
plaintiff's possession by the defendants,
which needs to be protected. In this regard,
reference may be made to a Bench decision
of this Court in Hafiz Muhammad
Ibrahim And Others. vs Pande Chandan
Singh And Others, (1921) 63 Ind Cas
727, where it has been held:

"Before an injunction can be
granted, the applicant must establish a legal
right. He must then show an actual or
threatened invasion of that legal right by
the particular person ageist whom he
wishes to claim an injunction, and he must
give evidence which justifies the Court in
thinking that there is a real substantial
likelihood that the wrongful act complained
of or apprehended will be repeated or done
unless restrained by the Court. The
evidence was not prepared in a way to
bring those matters out and the Judge
seems to as to have granted the injunction
in both instances in a very perfunctory way.
We are of opinion for the same reasons that
we cannot grant an injunction directing the
defendants, not to interfere with repairs of
the chabutra."
62 INDIAN LAW REPORTS ALLAHABAD SERIES

37. The Karnataka High Court in
R.G. Janthakal v. Bharat Parikh & Co.,
1981 SCC OnLine Kar 72 dealing with an
issue
of
the
kind
that
arises
for
consideration in this case, observed:

"9. I am unable to accede to that
argument. The proper thing for the lower
appellate Court would have been in the
light of the submission of the defendant
was to dismiss the suit (appeal) with the
observation that in the event of the
defendant, in any way, interfering with the
peaceful possession and enjoyment of the
plaintiff, the plaintiff would be at liberty to
seek afresh an injunction. Instead of doing
that, without discussing either the evidence
on record or recording a finding that the
defendant at any time had in fact interfered
in
some
manner
with
the
peaceful
possession and right to carry on the mining
operations in plaint schedule B area by
plaintiffs, it was not proper for the lower
appellate
Court
to
grant
injunction
particularly when prayer for declaration did
not relate to immoveable property namely,
mining area in plaint schedule B area.

10. It is well settled principle of
law now that injunction can be issued only
on proof of actual interference or threat of
interference and not in the absence of
it........."

38. The Culcatta High Court in Barid
Baran Laha v. Manjuri Ghoshal, 2011
SCC OnLine Cal 204 considering the
question about the proof of threat before an
injunction can be granted remarked:

"12. It appears from the judgment
of learned Trial Court that he placed much
reliance on some portions of evidence of
present respondent/defendant and came to
the conclusion that the possession of
appellant plaintiffs was under threat. The
relevant parts of said depositions of
respondent/defendant which learned Trial
Court gave special emphasis are quoted
below:--

"I am deprived of from my
constitutional right to enjoy my property".
Again in paragraph 22A of the affidavit
D.W. 1 admitted "in spite of the said
declaration by valid competent Courts, the
plaintiffs are not considering the suit
property to me." Even in cross-examination
D.W. 1 stated the following. "The statement
that I claim ownership and in spite of
claiming ownership I cannot enjoy the suit
property is correct. It is fact that at present
properties
are
in
possession
of
the
plaintiffs. They are not delivering the
possession of the properties in my favour."

13.
Admittedly,
for
proper
appreciation of evidence of a witness, the
entire evidence is required to be read as a
whole. Apart from that even if I examine
those chosen out parts of statements of
respondent/defendant, still it appears that
there was no threatening whatsoever to the
appellant/plaintiffs
for
dispossession.
Learned Lower Appellate Court was
justified in holding that there was no
evidence whatsoever to show that present
respondent/defendant was planning to sell
out suit property and/or to dispossess the
appellant/plaintiffs therefrom."

39. Before returning an answer to the
substantial question of law framed in this
appeal, it must be remarked that here is a
case, where the plaintiff has proved both
his title and possession to the suit property.
All that he has failed in proving is a
threatened invasion of his possession at the
time when he instituted the suit. The
consequence would be that the dismissal of
his suit would in no way debar the plaintiff
from bringing in an action to protect his
2 All. Madhyan Bhojan Rasoiya Mazdoor Sangh Husainganj, Lucknow Vs. U.O.I. & Ors.
63
possession, should there be ever in future a
threat to his peaceful possession of the suit
property at the hands of the defendants or
anyone else claiming through or under
them.

40. The substantial question of law
framed in this appeal is answered in the
manner that in the face of averments in the
written statement by the defendants that
they were owners of the suit property on
the basis of the Will and had possession too
as against the plaintiff's case of title and
possession, the Lower Appellate Court
should not have dismissed the suit on the
ground of absence of cause of action, but
dismissed it for the plaintiff's failure to
prove his case by evidence regarding the
threat to his peaceful possession.

41. Thus, for reasons slightly different
than those that have weighed with the
Lower Appellate Court, this Court concurs
in the conclusion.

42. In the result, this second appeal
fails and is dismissed. In the circumstances
of the case, parties shall bear their own
costs in all Courts.

43. Let a decree be drawn up
accordingly.
----------
(2023) 2 ILRA 63
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.02.2023

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ A No. 3479 of 2015

Madhyan Bhojan Rasoiya Mazdoor Sangh
Husainganj, Lucknow ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Mrinal Chandra, Pradeep Saran

Counsel for the Respondents:
C.S.C., A.S.G., Archana Singh Tomar, G.M.
Kamil, Neeraj Chaurasia

Constitution of India, 1950 - Art. 226, 23
& 24 - Code on Wages, 2019- Section 2(y)
& 67 - Code on Wages (Central) Rules,
2019 Honorarium to Cooks, engaged for
preparing Mid Day Meal in the institutions
run & aided by the government - Cooks
paid Rs.2,000/- per month which below
the minimum wages - Held - Considering
the fact that the amount called as
''honorarium' is paid to the Cooks on a
regular basis for a regular work being
done, it is nothing but wages as defined
under Section 2(y) of the Code on Wages,
2019 - payment of honorarium at rates far
below minimum wages, to the Cooks cum
Helpers who are engaged in providing Mid
Day Meal is another form of forced labour,
which is prohibited under Article 23 and
24 of the Constitution of India - G.O.
dated 28.01.2014 & 20.09.2022 - Cooks ,
semi skilled workers - State Government
kept the Cooks making Mid Day Meal in
the institutions, classified at Serial No.22,
as semi skilled workers and prescribed
minimum wages for them at the rate of
Rs.6,325/- per month through G.O. dated
28.01.2014 and which was subsequently
enhanced to Rs.10,483/- in terms of G.O.
dated 20.09.2022 - there is no reason why
the petitioners who are performing the
same job should not be extended the
benefit of minimum wages as has been
extended
to
the
persons
performing
similar jobs but engaged by different
employers - mandamus issued to ensure
payment of minimum wages to the Cooks
cum Helpers employed and preparing the
Mid Day Meal (Para 31, 37, 38, 41)

Allowed. (E-5)

List of Cases cited: