Necessary To Establish Title For Grant Of Perpetual Injunction Once Settled Possession Is Claimed : J&K&L High Court

The observations were made by Justice M A Chowdhary while hearing a civil second appeal wherein the moot question that sought an answer from the bench was as to whether in a suit for perpetual injunction, it is necessary for the plaintiff to establish the title or he can succeed in getting the relief of perpetual injunction merely be proving the fact that he is in settled possession of the property in question.

Facts of the Matter:

Plaintiff had filed a suit for permanent injunction against the Defendant before the Trial Court with prayer to pass a permanent injunction restraining the Defendant perpetually from causing any interference into her peaceful and bonafide possession of the suit property which was in her physical possession. The Plaintiff claimed that she along with the defendant purchased 02 kanals and 10 marlas of land in Srinagar and that she had paid Rs. 2.00 lacs in three instalments for the purchase of the said land.

Plaintiff also claimed that both the parties resided together in the house upto 1995 and the defendant on having been retired from Government service in 1995 left the suit house for his native village Chuntimulla Bandipora, where he had his ancestral property and has been residing there with his son since then. Plaintiff also maintained that her marriage took place in the suit house itself after which the defendant gifted away his share in the suit property in favour of the plaintiff, as such, she became absolute owner thereof.

It was alleged that the defendant after coming back to Srinagar started residing in one of the rooms of the outhouse and was bent upon to dislodge/dispossess the plaintiff from the suit house and had asked her in presence of her relatives to vacate the house.

The matter was first heard by Court of 2nd Additional Munsiff Srinagar who vide judgment dated 10.12.2015, dismissed the suit of the plaintiff on the ground that, even though, she was in possession of the suit property, she being not real and true owner of the same is not entitled to the relief of injunction against the true owner.

Aggrieved of the judgment and decree dated 10.12.2015 passed by the Trial Court, the plaintiff filed Civil 1st Appeal before the Appellate Court, assailing the judgment and decree on a number of grounds. The Court of learned 4thAdditional District Judge Srinagar (hereinafter called Appellate Court), however, dismissed the appeal filed by the plaintiff in terms of judgment and decree dated 30.11.2017.

Ground of Challenge :

Counsel for the appellant/plaintiff argued that the plaintiff is in possession of the suit property since 1992, and, therefore, even if she is treated to be an encroacher, she is in settled possession of the said property and was, therefore, entitled to injunction to the limited effect that she shall not be dispossessed, except in accordance with the law.

Counsel for the appellant/plaintiff further argued that even an encroacher, a trespasser or a licensee can maintain a suit for injunction against the true owner having regard to the settled possession.

Court Observations :

Adjudicating upon the matter Justice Chowdhary observed that a suit for injunction simplicitor is also maintainable when there is no complicated question of fact or law involved in the case and the suit can also be maintained by a person against the true owner of the property.

While adopting the stated path the bench placed reliance on a Judgement of Supreme court in Jharkhand State Housing Board Vs. Didar Singh and Ors, reported as (2019) wherein SC observed that though a bare suit for injunction in the absence of declaration relief would be maintainable, as 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 declaratory relief. It was further observed and held that, however, when the defendant raises the 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 permanent injunction.

"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 dispossess him except in due process of law", recorded the bench while referring to Apex court judgement in Padhiyar Prahladji Chenaji (D) through LRs versus Maniben Jagmalbhai (D) through LRs & Ors (2022 Live Law (SC) 241)

Elaborating on the usage of term "Settled possession" the bench observed that settled possession means such possession over the property which has existed for a sufficiently long period of time and has been acquiesced too by the true owner and a possession which has not matured into settled possession can be obstructed or removed by the true owner, even by using necessary force. In this case, even if the possession claimed by the plaintiff is for a longer period but the same cannot be said to be acquiesced by the true owner as this has been a case of the plaintiff that the defendant always wanted her to be evicted, the bench observed.

"No one acquires the title property if he or she was allowed to stay in the premises gratuitously, even by allowing possession of years or decades such person would not acquire any right or interest in the said property", observed the court while expressing its approval for the judgment of the courts below for not protecting the possession of the plaintiff, who was allowed to live in the premises as a close relative, being daughter of the defendant.

Accordingly the bench dismissed the Civil 2nd Appeal, for being devoid of any merit and substance.

Case Title: Shameema Akhter Vs Abdul Jabbar Lone

Citation: 2022 LiveLaw (JKL) 180

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