Admission Of Encroachment Not Proof Of 'Possession' For Grant Of Interim Injunction: Andhra Pradesh High Court

The Andhra Pradesh High Court has held that admission regarding encroachment cannot be construed to mean admitting possession. And that, for the grant of relief of interim injunction, a party must prove legally sustainable possession not just 'mere possession.'

The order was passed by Justice B.S. Bhanumathi in a Civil Revision petition filed by the District Co-operative Marketing Society, Kadapa against whom an order of interim injunction was passed, by an Appellant Court, restraining them from interfering in the suit scheduled property, upon which the plaintiffs claimed to have possession.

The order was passed, based on the admission made by the petitioner (respondent therein) about the possession of the respondents herein.

The High Court while setting aside the order held:

“The petitioner must able to establish legally sustainable possession and not mere possession. As against the evidence placed by the respondent, if the case pleaded and the evidence placed by the petitioner are considered, it cannot be stated that the petitioner could establish prima facie case……An encroacher cannot seek an equitable relief of injunction so as to prevent the real owner from protecting the property.”

Background:

The respondent herein (plaintiff in the main suit) contended that in 2022, her husband gifted her certain ancestral property that had been the property of his ancestors for more than 50 years. On the suit land, a house was constructed by her husband and she had now taken to renovate it, when the petitioner and his men tried to interfere with her possession. Hence the respondent initiated a suit for permanent injunction before the trial Court along with an interlocutory application for injunction.

The Co-operative Society on the other hand contended that prior to initiating of the suit, the plaintiff approached them trying to resolve the dispute amicably. Upon which, it was decided that a survey will be conducted. However, without conducting any survey, it was contended that the plaintiffs started with construction. The Society then conducted a survey and found that 0.16 guntas of land that belonged to the Society was being encroached upon by the plaintiffs.

Keeping in mind the survey report, the trial court dismissed the interlocutory application. The plaintiffs preferred an appeal, and the appellant Court held that since the Society had admitted the possession of the plaintiffs, they were entitled to the relief of injunction.

Against the order passed in the appeal, the present Revision Petition had been filed.

The Society contended that it never admitted to possession but to encroachment.

The respondent (plaintiffs) on the other hand, contended that they would be put to irreparable loss if the house that was constructed on the suit land was demolished.

Justice Bhanumati, relying on the judgment rendered in Mohammad Hashim Banday and Ors vs. Ghulam Mohi Ud Din Banday & Ors to reiterated that prima facie case is the sine quo non for the relief of injunction. Court said:

“When the petitioner could not establish prima facie case merely on the ground of balance of convenience, equitable relief of interim injunction cannot be granted, leaving it to the fate of the respondent to fight throughout the trial. It is a case, where there is a glaring failure of the petitioner to establish the basic element of title coupled with possession, in contrast to the valid title shown by the respondent.”

Thus the revision was allowed, setting aside the order passed by the appellant court and restoring the order passed by the trial Court.

CIVIL REVISION PETITION NO: 578/2024

Counsel for the Petitioner: Challa Gunaranjan

Counsel for respondent: A Syam Sundar Reddy

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