[2025:RJ-JP:23563] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 331/1997 1. Prakash Chand S/o Shri Har Govind Shahbad Distt. Baran 2. Som Kumar S/o Rishav Chand Shahbad Distt. Baran ----Appellants Versus 1. Satish Chand S/o Shri Ramakant, Village Devari, Teh. Shahbad Distt. Baran 2. Virendra Singh S/o Shri Narendra Singh, Village Devari, Teh. Shahbad Distt. Baran ----Respondents For Appellant(s) : Mr. J.P. Goyal, Senior Advocate with Mr. Siddharth Singh For Respondent(s) : Mr. Mahesh Gupta HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 12/05/2025 1. Instant second appeal is preferred by appellants plaintiffs aggrieved from judgment dated 24.07.1997 in civil regular appeal no. 7/1997 passed by learned District Judge, Baran whereby an appeal preferred by respondent no.1 defendant against judgment and decree dated 20.02.1997 in civil suit no. 5/1995 was allowed and decree dated 20.02.1997 is set aside. 2. Learned Senior Advocate while relying upon grounds of appeal submitted that the appellants plaintiffs filed a civil suit for injunction and the trial court after considering the material on record particularly evidence have decided issue no.1 in favour of plaintiffs and granted injunction to restrain respondent no.1 [2025:RJ-JP:23563] (2 of 11) [CSA-331/1997] defendant but the appellate court taking note of the fact that the suit property belongs to plaintiffs and patta is issued in favour of plaintiff but plaintiff is not in possesssion has set aside the judgment and decree passed by the trial court. He further submitted that the appellate court has reversed the finding only on the ground that the plaintiffs are not in possession of the suit property and an injunction cannot be granted unless possession is proved. Learned counsel further submitted that the averment in the plaint clearly states that respondent no.1 defendant has tried to dig the land in possession of the plaintiff and no where the plaintiffs have admitted the possession of defendant No.1. He also submitted that general principle of possession is that the person who holds the title has considered to be possession of vacant land. He further referred judgment in case of Amar Chand and Ors. Vs. Sushila and Ors. 2017 (1) WLN 412 and Dharam Pal Vs. Lalman 2018 (1) RLW 680 and submitted that in case of attempt or threat to unauthorized construction, an order of injunction can be issued to restrain the person admitting to dispossess the plaintiffs. He further submitted that the land in question is an abadi land and only Civil Court can grant injunction to restrain defendant. He further submitted that the appellants plaintiffs are title holder and they were in possession on date of institution of suit, therefore, the reversal of the decree by the appellate court is contrary to settled proposition of law. 3. Aforesaid contentions were opposed by learned counsel for respondent no.1 defendant and submitted that it is general law that without possession a suit for injunction cannot be maintained. [2025:RJ-JP:23563] (3 of 11) [CSA-331/1997] He further referred and relied upon judgment in case of Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs & Ors AIR 2008 SC 2033 and submitted that if plaintiff is not in possession of suit property then without declaration a simple suit for injunction is not maintainable. He further submitted that the plaintiffs were not able to establish their possession, hence, a suit for permanent injunction cannot lie without either relief of declaration or suit for possession. He further relied upon judgment in case of Akki Tirupathaiah Vs. Yedlapalli Subba Rao 2024 (2) ALT 417 (AP) and submitted that the plaintiffs have not filed a suit for declaration and when they are not in possession over the suit property then they are not entitled for injunction. He also submitted that the trial court has committed serious error by issuing an injunction in favour of plaintiffs and the appellate court has rightly set aside the erroneous judgment of trial court. At last, he submitted that suit is not maintainable for want of possession and the appellate court has rightly set aside the judgment and decree passed by the trial court. 4. Heard learned Senior Advocate appearing for plaintiffs and learned counsel appearing for respondent no.1 defendant. Perused the judgment as referred by learned counsel for both the parties and also the record of both the courts below. 5. The facts giving rise to instant second appeal are that the appellants plaintiffs filed a suit for permanent injunction in respect of suit property purchased by appellant no.1 and father of appellant no.2 from Gram Panchayat, Devri on 03.10.1976. The plaintiffs have further averred that they were in possession after [2025:RJ-JP:23563] (4 of 11) [CSA-331/1997] construction upto plinth level but defendant no.1 threatened to dig disputed land shown in map by ABCD. The plaintiff has prayed for restraining defendant no.1 from encroachment and raising construction on suit property. The defendant no.1 has filed a written statement denying the allegation to maintain that defendant is raising construction only on his land measuring 14x40 feet purchased from defendant no.2. 6. The trial court has framed as many as four issues. The plaintiff has examined four witnesses whereas defendant no.1 has examined himself as DW-1. The plaintiff has exhibited Ex. 1 patta issued by Village Panchayat whereas defendants have exhibited three documents Ex. A/1 to A/3. The trial court has decided issue no.1 and 2 in favour of plaintiffs but decided issue no.3 positively in favour of plaintiffs and ultimately, passed the following decree in favour of plaintiff. ^^ nkok oknhx.k va’kr% ckcr~ IykV 35^ NS x 40 EW tks izdj.k dh jksM ds mRrj esa gS Decree fd;k tkrk gS fd blds fdlh Hkkx ij izfroknh vfrØe.k ugha djsa rFkk f[kykQ izfroknh la01 further decree fd;k tkrk gS fd fd;s x;s vfrdze.k@fuekZ.k dks vanj ;kse ,d ekl Lo;a ds [kpsZ ij gVkysA [kpZ eqdnek Qjhdsu viuk&viuk Lo;a ogu djsaA ** 7. Aggrieved from judgment and decree dated 20.02.1997 in civil suit no. 5/1995 passed by learned Civil Judge (Senior Division) Shahbad, District Baran the respondent no.1 defendant has filed a Civil Regular Appeal No.7/1997 before the learned District Judge, Baran, which was allowed on 24.07.1997 and decree was set aside. [2025:RJ-JP:23563] (5 of 11) [CSA-331/1997] 8. While considering this appeal on 27.08.1997, a Co-ordinate Bench has framed following substantial questions of law: “(i) Whether basic suit for permanent injunction without seeking further relief of declaration or possession is maintainable? (ii) Whether seeking permanent injunction without any relief of declaration or possession is prohibited by any provision of law?” 9. Both the issues are interconnected, therefore, we are deciding both the issues with common discussion. 10. The trial court after considering the evidence both documentary and oral came to conclusion in favour of plaintiff and observed that the plaintiff is entitled to restrain defendants from encroachment on land admeasuring 35 feet NS X 40 feet EW. The trial court has further directed defendant no.1 to remove enroachment/construction within one month. The appellate court has considered the fact noticed by the trial court that the construction is raised after filing of suit and stay. The appellate court has also referred statement of PW-1 Prakash Chand, which reflect that Teenshed on angle were constructed before the stay. The appellate court has also referred report of Commissioner which also indicate that the construction was already completed. The appellate court has observed that without relief of possession, the trial court has granted decree of possession. The findings of appellate court clearly indicate that the decree by trial court was set aside only on the ground that the plaintiffs were not in possession on date of filing of suit and construction is raised before institution of suit. The observation further indicates that the plaintiff has not prayed for mandatory injunction for possession [2025:RJ-JP:23563] (6 of 11) [CSA-331/1997] and the trial court has granted relief which is not prayed by plaintiffs. The issue before us is revolving around possession of the property on date of filing of civil suit. 11. The plaintiffs have filed a civil suit on 07.07.1995 for injunction with averment in para no. 4 of plaint that on 05.07.1995, the defendants have started to dig land mentioned as ABCD in annexed map. The plaintiff has further mentioned that a report has been filed to police station and on 06.07.1995 the pace of construction was increased. The plaintiffs have claimed the injunction both mandatory and prohibitory nature. The relief claimed by plaintiff indicate that the plaintiffs have sought demolition of construction and removal of encroachment. 12. The defendant no.1 has filed a written statement and in his special pleadings pleaded that the suit property is purchased from defendant no.2 and he is a bona fide purchaser. Further, pleaded that there was a dispute between Shravanlal and plaintiffs about the land related to disputed patta and same was in possession of Shravanlal, and there was a dispute with Sharvanlal. 13. PW-1 has admitted that the suit filed by Shravanlal was decreed in favour of Shravanlal and a copy of decree is Ex. D/1. The admission also indicate that appeal from such decree was dismissed and a copy of appeal is Ex. D/2. PW-1 has denied that the land of Shravanlal was claimed by him as his land. PW-2 Som Kumar Jain is unaware about dispute with Shravanlal and he is unaware about Ex. 4 and 5. PW-3 Chintulal was an officiating Sarpanch when patta was issued in favour of plaintiff. PW-4 Komal is the person who was assigned work of construction to dig plinth [2025:RJ-JP:23563] (7 of 11) [CSA-331/1997] by plaintiffs. On the contrary DW-1 Satish Chand has admitted that he has not executed sale deed. 14. The plaintiff has exhibited Ex. P/1 and receipt Ex. P/2 to show that they have purchased 40x 40 feet land from Village Panchayat when PW-3 was officiating as Sarpanch. The Commissioner report, prepared after inspection on 30.10.1995 is also exhibited as Ex. P/3. The plaintiffs have also exhibited judgment dated 18.08.1992 in civil suit no. 46/1992 passed by learned Munsif Magistrate Shahbad, District Baran in a suit filed by Shravanlal against plaintiff no.1 Prakash Chand and Virendra Singh. Ex. P/5 a copy of statement of Shravanlal in civil suit no. 93/1984 (46/1992), is also placed on record alongwith a copy of memo of appeal against judgment and decree dated 18.08.1992, exhibited as Ex. D/2. The admission of PW-1 with reference to Ex. P/4 and Ex. D/2 clearly indicate that the plaintiff has claimed same disputed land, which was also in dispute in a suit filed by Shravanlal. The land is common and it indicate that the land in question was in dispute on 03.07.1984 when civil suit no. 46/1992 (93/1984) was filed by Shravanlal. 15. The aforementioned facts which were also noticed by trial court clearly shows that the plaintiff has filed a suit for injunction with relief of both prohibitory and mandatory but this land in question was also in dispute since 1984 when Shravanlal has filed a suit against plaintiff. The facts clearly reflect that the plaintiff has filed a suit without disclosing a correct fact in his plaint. Moreover, the plaintiff has not disclosed filing of earlier suit by Shravanlal and decision dated 18.08.1992 by learned Munsif [2025:RJ-JP:23563] (8 of 11) [CSA-331/1997] Magistrate, Shahbad, further dismissal of appeal by the District Judge. It indicate that the plaintiff have not disclosed true facts rather they have filed a suit on the basis of so called cause of action dated 05.07.1995. 16. The evidence both oral and documentary clearly suggest that there is a dispute with regard to possession and title and the plaintiffs have failed to disclose correct and true facts of the case. In case of Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs & Ors (supra), the Hon’ble Supreme Court has considered a question relating to scope of a suit of prohibitory injunction in a matter with regard to immovable property and also that is it necessary for plaintiffs to filed a suit for declaration of title and injunction. 17. In case of Akki Tirupathaiah Vs. Yedlapalli Subba Rao 2024 (2) ALT 417 (AP) (supra), while referring following paragraph from judgment in the case of Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust Virudhunagar v. Chandran (2017) 3 SCC 702, the same is extracted here: "The plaintiff, who was not in possession, had in the suit claimed only declaratory relief along with mandatory injunction. Plaintiff being out of possession, the relief of recovery of possession was a further relief which ought to have been claimed by the plaintiff. The suit filed by the plaintiff for a mere declaration without relief of recovery of possession was clearly not maintainable and the trial court has rightly dismissed the suit. The High Court neither adverted to the above finding of the trial court nor has set aside the above reasoning given by the trial court for holding the suit as not maintainable. The High Court in exercise of its jurisdiction under Section 100 C.P.C. could not have reversed the decree of the courts below without holding that the above reasoning given by the courts below was legally unsustainable. We, thus, are of the view that the High Court committed error in decreeing the suit." [2025:RJ-JP:23563] (9 of 11) [CSA-331/1997] 18. In case of Amar Chand and Ors. Vs. Sushila and Ors. (supra), a Co-ordinate Bench of this Court while considering judgment in case of Ram Daan (dead) through Lrs Vs. Urban Improvement Trust, reported in (2014) 8 SCC 902, Apex Court has observed: “ 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 original owner must assert his title by the process of law within the period prescribed by the statutes of limitation applicable to the case.” 19. In case of Dharampal (supra), another Co-ordinate Bench of this Court has observed that by raising boundary wall over the disputed property is not sufficient to constitute possession and there is no legal requirement for plaintiff to seek a decree for possession against the defendant in such circumstances. It is sufficient for plaintiff to seek indulgence for passing direction for demolition of such boundary wall. The defendants had no possession much less settled possession over the disputed land and for all practical purposes the plaintiff remained in possession over the disputed land and not obligated to seek a relief of possession. 20. In case of Anathula Sudhakar Vs. P. Buchireddy (Dead) by LRs (supra), Hon’ble Supreme Court has lays down that when can a suit be filed for injunction simplicitor. It is clear that when plaintiff’s title is disputed and plaintiff lacks possession, the proper remedy is a suit for declaration and possession, with or without possession. In case of vacant land, title may need to be examined [2025:RJ-JP:23563] (10 of 11) [CSA-331/1997] to establish dejure possession, an actual possession cannot be determined otherwise. 21. Having considered the legal position as referred hereinabove, it is apparent on record that there is a dispute since 1984 and plaintiffs were well-aware about the dispute with regard to suit property. Herein this case, the plaintiffs have concealed previous dispute with Shravanlal, which resulted into a suit in 1984 and plaintiffs have suffered a set back in said suit. The plaintiffs were required to show their possession by positive assertion with correct facts but the plaintiffs have failed to establish the same. Further, an admission in evidence and the documents clearly indicate that there is a serious dispute about possession of plaintiffs on date of filing of the suit. 22. The general principle of law is that the plaintiff has to stand on their own legs and they cannot take advantage of weakness of others, thus imperfect title of defendant no.1 is not sufficient to decree the suit. It is not established from the evidence that the construction is raised after filing of civil suit. The trial court has committed serious error by granting mandatory and prohibitory injunction when plaintiff is not able to establish its possession on date of filing of the suit. If there is a change in position of suit property after filing of suit then it is not necessary for the plaintiff to file a suit for declaration but herein this case, as per the law settled by Hon’ble Supreme Court it is necessary to claim proper relief with correct facts, therefore, the appellate court has not committed any error by allowing the appeal. Thus, both the [2025:RJ-JP:23563] (11 of 11) [CSA-331/1997] questions are answered against appellants plaintiffs and the appeal is liable to be dismissed. 23. In view of discussion made hereinabove, the instant second appeal filed by appellants plaintiffs against the judgment and decree dated 24.07.1997 in Civil Regular appeal no. 7/1997 is hereby dismissed. 24. No order as to costs. (ASHOK KUMAR JAIN),J CHETNA BEHRANI /83