Whether trespasser can seek injunction against true owner?

 Now the other aspect of the matter needs to be noted. Assuming a trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963 can the trespasser seek injunction against the true owner? This question does not entirely depend upon Section 6 of the Specific Relief Act, but mainly depends upon certain general principles applicable to the law of injunctions and as to the scope of the excise of discretion while granting injunction? In Mahadeo Savlaram Sheika v. Pune Municipal Corporation MANU/SC/0673/1995 : [1995]1SCR543 , it was held, after referring to Woodrufe on "Law relating to injunction; L.C. Goyal 'Law of injunctions; David Bean 'Injunction' Jaycee on Injunctions and other leading Articles on the subject that the appellant who was a trespasser in possession could not seek injunction against the true owner. In that context this Court quoted Shiv Kumar Chadha v. MCD MANU/SC/0522/1993 : [1993]3SCR522 wherein it was observed that injunction is discretionary and that:

"Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court".

26. Reference was also made to Dalpat Kumar v. Prahlad Singh MANU/SC/0715/1991 : AIR1993SC276 in regard to the meaning of the words 'prima facie case' and 'balance of convenience' and observed in Mahadeo's case (supra) that:

"It is settled law that no injunction could be granted against the owner at the instance of a person in unlawful possession."

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 448 of 2004 (Arising out of SLP (Civil) No. 20366/2002)

Decided On: 23.01.2004

Sopan Sukhdeo Sable and Ors. Vs. Assistant Charity Commissioner and Ors.

Hon'ble Judges/Coram:

Doraiswamy Raju and Dr. Arijit Pasayat, JJ.

Citation: AIR 2004 SC 1401

Print Page

Whether trespasser can claim injunction against true owner of property?

It is equally settled law that injunction would not be issued against the true owner. therefore, the Courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner, pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner.

IN THE SUPREME COURT OF INDIA

SLP No. 10792 of 1994

Decided On: 22.07.1994

 Premji Ratansey Shah and Ors. Vs. Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

K. Ramaswamy and N.G. Venkatachala, JJ.

Citation:(1994)5 SCC 547,

Print Page

Whether a person is entitled to get injunction against dispossession if other side does not assert that he is owner of suit property?

 The question, therefore, is that in view of the concurrent finding recorded by all the three courts below that the Appellant has been in possession of the property (at least from the year 1959) whether the injunction as prayed for by the Appellant can be denied? As can be seen from the judgment of the Privy Council referred to supra, a person such as the Appellant in possession of land has a perfectly good title against the entire world except the rightful owner. However, the rightful owner must assert his title by the process of law within the period prescribed by the statutes of limitation applicable to the case.

15. We have carefully scanned through the written statement. There is no assertion that the Respondent is the real owner of the property though it is very boldly submitted before us that the State of Rajasthan is the owner of the property.

16. However, the Respondent is not the State of Rajasthan. What exactly is the legal character of the Respondent is not known? Assuming that the State of Rajasthan is the real owner of the property in question, whether the Respondent is legally authorized by the State of Rajasthan to recover possession of the suit scheduled property is not clear from the record.

17. Assuming for the sake of argument that the Respondent has some authority to evict the Appellant, the eviction must be by a process known to law, i.e., either by filing a suit to evict the Appellant or by resorting to some other procedure duly authorized by law. In this regard, learned Counsel for the Respondent placed reliance on Section 91 of the Rajasthan Land Revenue Act which, no doubt, authorises the summary eviction of encroachers of the government property by following the procedure prescribed therein. However, from the written statement it does not appear that the Respondent² took any steps contemplated Under Section 91 of the said Act. It appears that the Respondent is under the belief that once Section 91 was invoked (in 1965), such an invocation for evicting the Appellant summarily can eternally be relied upon by anybody for evicting the Appellant.

18. Law, in our opinion, does not sanction such process. Even according to the Respondent, subsequent to the alleged eviction in 1965, the Appellant re-entered possession of the suit scheduled property. In which case if the Respondent desires to evict the Appellant again, the same must be done in accordance with law by initiating appropriate proceedings. Until such process of eviction in accordance with law is initiated, the Appellant's possession of the suit scheduled property is required to be protected.

19. In the context of the right of the recovery of possession of immoveable property by a person who was dispossessed from such property, this Court, in Nair Service Society Ltd. (supra), while dealing with Section 9 of the Specific Relief Act, 1877 (corresponding to Section 6 of the Specific Relief Act, 1963) opined:

...The uniform view of this Court is that if Section 9 of the Specific Relief Act is utilised, the Plaintiff need not prove title and the title of the Defendant does not avail him....(para 14)

20 In the light of the above principle of law laid down by this Court and in view of the fact that there is no clear pleading in the case on hand as to who is the real owner of the suit schedule property and absence of any assertion that the Respondent is the owner of the property, we are of the opinion that the Appellant is entitled for an injunction, as prayed, subject, of course, to the right of the true owner of the property (whoever it is) to evict the Appellant in accordance with law.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7119 of 2014 (Arising out of Special Leave Petition (Civil) No. 8767 of 2012)

Decided On: 01.08.2014

 Ram Daan Vs.  Urban Improvement Trust

Hon'ble Judges/Coram:Jasti Chelameswar and A.K. Sikri, JJ.

Citation:2015(1) MHLJ 34

Print Page

Whether court can grant injunction in favour of trespasser against true owner?

The question, therefore, is whether an injunction can be issued against the true owner. Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.

 It is equally settled law that injunction would not be issued against tile true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner.

Supreme Court of India

Premji Ratansey vs Union Of India on 22 July, 1994

Equivalent citations: 1994 SCC (5) 547, JT 1994 (6) 585, 1995(2) Bom.C.R.374

Bench: Ramaswamy, K.

Print Page

Leading Supreme Court Judgment on distinction between trespasser in process of acquiring possession and trespasser in possession

In the cases of Munshi Ram and Ors. (supra) and Puran Singh and Ors. (supra), the Court has approved the statement of law made in IIoram v. Rex - MANU/UP/0001/1947 : AIR1949All564 , wherein a distinction was drawn between the trespasser in the process of acquiring possession and the trespasser who had already accomplished or completed his possession wherein the true owner may be treated to have acquiesced in: while the former can be obstructed and turned out by the true owner even by using reasonable force, the later, may be dispossessed by the true owner only by having recourse to the due process of law for re-acquiring possession over his property.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7662 of 2003

Decided On: 15.12.2003

Rame Gowda (D) by Lrs. Vs  M. Varadappa Naidu (D) by Lrs. and Anr.

Hon'ble Judges/Coram:

R.C. Lahoti, B.N. Srikrishna and G.P. Mathur, JJ.

Citation:AIR 2004 SC 4609

Print Page

Whether trespasser in possession can seek injunction against true owner?

  In Mahadeo Savlaram Shelke v. Pune

            Municipal Corpn. it was held, after referring to Woodroffe:

            Law Relating to Injunctions; Goyle, L.C.: Law of Injunctions;

            Bean, David: Injunctions; Joyce: Injunctions and other leading

            articles on the subject that the appellant who was trespasser

            in possession could not seek injunction against the true

            owner. In that context this Court quoted Shiv Kumar Chadha

            v. Municipal Corpn. of Delhi wherein it was observed that

            injunction is discretionary and that: (SCC p.175, para 31)




                   "[J]udicial proceedings cannot be used to protect or to



             perpetuate a wrong committed by a person who approaches

             the court."


                   26.   Reference was also made to Dalpat Kumar v.

             Prahlad Singh in regard to the meaning of the words "prima

             facie case" and "balance of convenience" and observed in

             Mahadeo case that: (SCC p.39, para 9)


                   "9.   It is settled law that no injunction could be

             granted against the true owner at the instance of persons in      unlawful possession."
 (See Premji Ratansey Shah v. Union of India [(1994)5 SCC 547),

In the light of the aforesaid decisions of the Apex Court, I do not

think that the plaintiffs in this case are entitled to a decree of

injunction against the first defendant who is the real owner of

the property.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                      PRESENT:

                     MR. JUSTICE P.B.SURESH KUMAR

              THURSDAY, THE 13TH DAY OF AUGUST 2015
                                             RSA.No. 592 of 2015 ()
                                            

 MOHINI NARAYANA HEGDE Vs  B.THIMMAPPA,  THYAMPU, ,
               
     Citation;AIR 2016 (NOC)368 kerala

Print Page