TMI Blog2022 (3) TMI 1593X X X X Extracts X X X X X X X X Extracts X X X X ..... nt injunction in favour of the Plaintiff and against the Defendant No. 1, who is the true owner. After having held that the Plaintiff had no title and after dismissing the suit qua the cancellation of the registered sale deed and the declaration, the Plaintiff is not entitled to relief of permanent injunction against Defendant No. 1-the true owner. Appeal allowed. - M.R. Shah And B.V. Nagarathna, JJ. For Appellant: Pallav Shishodia, Sr. Adv., Rishabh Sancheti, Padma Priya, Anchit Bhandari, Saloni Bhandari, Advs. and K. Paari Vendhan, AOR For Respondents: Rauf Rahim, AOR JUDGMENT M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 24.10.2018 passed by the High Court of Gujarat in Second Appeal No. 8 of 2016 by which the High Court has dismissed the said appeal and has confirmed the judgment and decree passed by the trial court further confirmed by the First Appellate Court granting injunction in favour of the original Plaintiff restraining the Defendant from disturbing the possession of the Plaintiff, the original Defendant has preferred the present appeal. 2. That the dispute is with respect to the land bearing Revenue Survey No. 49 ad-m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gunthas under the registered sale deed duly executed by the husband of the Plaintiff. It was also the case on behalf of the Defendant No. 1 that he is in possession of the entire suit land and is cultivating the same since many years. According to the Defendant No. 1, the Plaintiff has no right, title or interest in the suit property. At this stage, it is required to be noted that the Plaintiff joined the brothers of her husband as Defendant Nos. 2 and 3 against whom as such no reliefs were claimed. 2.5. The trial court framed the following issues: 1. Whether the Plaintiff proves that her husband had given in writing 1 acre land located on the North from survey No. 49 paiki for construction of well? 2. Whether the Plaintiff proves that the Defendant No. 1 along with Defendant No. 2 and 3 got the sale deed of survey No. 49 admeasuring 6 acre - 15 guntha land executed on 17/6/75 for Rs. 4000/- from her husband falsely? 3. Whether the Defendant proves that the husband of Plaintiff had sold him 6 acre - 15 guntha land of survey No. 49. by registered sale deed dated 17/6/75 and he has the possession of the land since then? 4. Whether the Plaintiff is entitled to get declaration as pray ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned judgment and order, the High Court has dismissed the second appeal by observing and holding that the relief of permanent injunction sought by the original Plaintiff can be said to be substantive relief and not a consequential relief and therefore, the trial court was justified in granting the permanent injunction in favour of the Plaintiff as the Plaintiff was/is found to be in possession of 5 acres and 15 gunthas of land out of total area ad-measuring 6 acres and 15 gunthas. 2.11. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court dismissing his second appeal and confirming the judgment and decree passed by the trial court of granting permanent injunction in favour of the original Plaintiff, the original Defendant No. 1 has preferred the present appeal. 3. Shri Pallav Shishodia, learned Senior Advocate appearing on behalf of the original Defendant No. 1 has vehemently submitted that once the relief relating to declaration as to title of the Plaintiff to suit land is declined, the trial court erred in granting the relief of permanent injunction to protect the alleged possession of the Plaintiff. 3.1. It is submitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... came to be believed, the so called possession of the Plaintiff can be said to be unlawful and/or illegal possession and in any case cannot be said to be lawful possession and therefore is not entitled for the permanent injunction as prayed and granted by the trial court confirmed by the High Court. 3.5. It is also submitted that if the suit for declaration was barred by limitation, then the relief seeking permanent injunction was also barred by limitation, as the Plaintiff challenged the Sale Deed dated 17.06.1975 after a period of 22 years. 3.6. It is further submitted that after the suit was filed in the year 1997 challenging the sale deed of 1975, the trial court declined the temporary injunction vide order dated 12.12.1997. Thereafter, the First Appellate Court protected the possession of the Appellant-Defendant No. 1 by granting an order of status quo during the pendency of the first appeal, which was further continued even by the High Court vide order dated 21.03.2016. It is submitted that even the order of status quo had been extended by the High Court after the impugned judgment and continued by this Court vide order dated 11.01.2019. It is submitted that the Defendant No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s rightly observed that the relief of permanent injunction sought by the Plaintiff was a substantial relief and not a consequential relief. 4.5. Making the above submissions, it is prayed to dismiss the present appeal. 5. Heard the learned Counsel for the respective parties at length. 6. At the outset, it is required to be noted that the suit filed by the original Plaintiff was for cancellation of the registered Sale Deed dated 17.06.1975 and for a declaration that the registered Sale Deed dated 17.06.1975 is bogus and not binding to the Plaintiff. While praying for the substantive relief of declaration that the aforesaid sale deed is not binding on her, the Plaintiff also prayed for return of the land admeasuring 1-0 guntha, which even according to the Plaintiff was in possession of the Defendant No. 1. The Plaintiff also prayed for permanent injunction with respect to the entire agricultural land admeasuring 6 acres and 15 gunthas, though even according to the Plaintiff also the Defendant No. 1 was handed over the possession of 1-0 guntha of land out of 6 acres and 15 gunthas of land. 6.1. On appreciation of the entire evidence on record, the trial court refused to pass the decre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the name of the Defendant No. 1 continued in the Revenue record as a cultivator and the suit was filed after a period of 22 years, is concerned, it is true that there are concurrent findings by the trial court as well as the First Appellate Court that the Plaintiff is in possession of the disputed land in question. However, it is required to be noted that in the Revenue record, right from 1976 onwards and after the registered sale deed in favour of the Defendant No. 1, the name of the Defendant No. 1 was mutated in the Revenue record and in the column of farmer and the cultivator, the name of the Defendant No. 1 is mentioned. Even the crops being cultivated by the cultivator are mentioned in the Revenue record. Thus, right from 1976 onwards till 1997 in the Revenue record, the name of Defendant No. 1 is mutated as an owner and cultivator. Nothing is on record to the effect that at any point of time and after the registered sale deed was executed in favour of Defendant No. 1, the Plaintiff paid any revenue in respect of the land in question. After the execution of the registered sale deed in favour of Defendant No. 1, which has been believed by all the courts below, the name of Def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch was a consequential relief, which shall be discussed herein below. 8.3. Therefore, once the suit is held to be barred by limitation qua the declaratory relief and when the relief for permanent injunction was a consequential relief, the prayer for permanent injunction, which was a consequential relief can also be said to be barred by limitation. It is true that under normal circumstances, the relief of permanent injunction sought is a substantive relief and the period of limitation would commence from the date on which the possession is sought to be disturbed so long as the interference in possession continuous. However, in the case of a consequential relief, when the substantive relief of declaration is held to be barred by limitation, the said principle shall not be applicable. 9. Even otherwise on merits also, the Courts below have erred in passing the decree of permanent injunction restraining the Defendant No. 1 from disturbing the alleged possession of the Plaintiff. Assuming for the sake of argument that the Plaintiff is found to be in possession, in that case also, once the Plaintiff has lost so far as the relief of declaration and title is concerned and the Defendant No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 bare injunction. 9.2. In the present case, once the Defendant No. 1 was held to be the true and absolute owner pursuant to the registered sale deed executed in his favour and the Plaintiff was unsuccessful so far as the declaratory relief is concerned, thereafter, it cannot be said that there was a cloud over the title of the Plaintiff and/or even the Defendant. Therefore, the only relief which survived before the trial court was the consideration of relief of permanent injunction and having been unsuccessful in getting the relief of cancellation of the registered sale deed and the declaration thereof, the relief of permanent injunction could not have been granted by the trial court as well as by the first Appellate Court. This aspect of the case has been lost sight of by the High Court in the second appeal. 9.3. In the case of A. Subramanian v. R. Pannerselvam, (2021) 3 SCC 675, it is observed by this Court that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any declaratory relief, and as observed hereinabove, relief of injunction can be said to be a consequential relief. Therefore, the prayer for permanent injunction must fail. In the instant case as the Plaintiff cannot be said to be in lawful possession of the suit land, i.e., the possession of the Plaintiff is not legal or authorised by the law , the Plaintiff shall not be entitled to any permanent injunction. 11.1. An injunction is a consequential relief and in a suit for declaration with a consequential relief of injunction, it is not a suit for declaration simpliciter, it is a suit for declaration with a further relief. Whether the further relief claimed has, in a particular case as consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. Where once a suit is held not maintainable, no relief of injunction can be granted. 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 disposes him, except in due process of law. 12. Now, so far as the submission on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the 'bare minimum' requirement of 'due process' or 'due course' of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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