Padhiyar Prahladji Chenaji vs Maniben Jagmalbhai (Deceased) … on 3 March, 2022


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Supreme Court of India

Padhiyar Prahladji Chenaji vs Maniben Jagmalbhai (Deceased) … on 3 March, 2022

Author: M.R. Shah

Bench: M.R. Shah, B.V. Nagarathna

                                                                        REPORTABLE

                                   IN THE SUPREME COURT OF INDIA
                                    CIVIL APPELLATE JURISDICTION

                                    CIVIL APPEAL NO. 1382 OF 2022

         Padhiyar Prahladji Chenaji
         (Deceased) Through L.R.s                                   …Appellant(s)

                                                 Versus

         Maniben Jagmalbhai (Deceased)
         Through L.R.s and Ors.                                    …Respondent(s)


                                              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
Signature Not Verified

NatarajanSurvey No.49 ad-measuring 6 acres and 15 gunthas situated at the
Digitally signed by R
Date: 2022.03.03
17:23:29 IST
Reason:

village Mahadeviya, District Deesa. The husband of the original plaintiff

1
had executed a Sale Deed dated 17.06.1975 in favour of the appellant

herein – original defendant (hereinafter referred to as the “original

defendant”) by which he sold his agricultural land in question.

2.1 That on the basis of the sale deed, the name of the defendant

No.1 was mutated in the Revenue record in the year 1976 itself. All

throughout the name of the original defendant No.1 was mutated in the

Revenue record as an owner right from the year 1976 onwards. It is the

case on behalf of the defendants that thereafter between 1975 to 1997,

he had authorised and completed construction projects on the land. He

also availed a bank loan where the suit property was given as a

collateral security.

2.2 That in the year 1999, the husband of the original plaintiff, who

executed the registered sale deed died. That after a period of

approximately 22 years, respondent No.1 herein – original plaintiff

(hereinafter referred to as “original plaintiff”) instituted Regular Civil Suit

No. 123 of 1997 in the Court of Civil Judge (Junior Division), Deesa for

the reliefs of cancellation of the registered Sale Deed dated 17.06.1975,

declaration and permanent injunction.

2.3 The case on behalf of the original plaintiff was that her husband

was addicted to liquor and as the family was in need of finances, her

husband decided to sell 1 acre of the land out of total 6 acres and 15
2
gunthas to the defendant No.1. According to the plaintiff, defendant

No.1 taking advantage fraudulently got the sale deed registered of the

entire suit property, i.e., 6 acres and 15 gunthas. Therefore, it was the

case on behalf of the plaintiff that the defendant No.1 played a fraud

upon her family. According to the plaintiff, the possession of only 1 acre

was handed over to the defendant No.1 and the plaintiff continued to be

in possession of the remaining 5 acres and 15 gunthas of land. It is the

case of the plaintiff, no sooner she came to learn about the alleged fraud

and as the defendant No.1 tried to disturb her settled possession in the

suit land, she instituted the regular civil suit for the aforesaid reliefs.

2.4 The suit was opposed by defendant No.1. It was the specific case

on behalf of the defendant No.1 that he has purchased the entire land,

i.e., 6 acres and 15 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:-

3
“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
prayed?

5. Whether the plaintiff is entitled to get the relief
sought?

6. What order and decree?”

2.6 On appreciation of evidence, both oral as well as documentary, the

trial court partly allowed the suit. The trial court declined to grant the

relief of cancellation of the sale deed and declaration and held that

defendant No.1 purchased the entire 6 acres and 15 gunthas of the land

under the registered Sale Deed dated 17.06.1975. However, the trial

court believed the plaintiff to be in possession of the suit land to the

extent of 5 acers and 15 gunthas of land and accordingly granted the

relief of permanent injunction.

4
2.7 Defendant No.1, feeling aggrieved and dissatisfied with the

judgment and decree of permanent injunction passed by the trial court,

preferred the Regular Civil Appeal No. 15 of 2000 before the First

Appellate Court – District Court of Banaskantha at Deesa. The First

Appellate Court dismissed the said appeal and confirmed the judgment

and decree of permanent injunction passed by the trial court.

2.8 At this stage, it is required to be noted that so far as the judgment

and decree passed by the trial court refusing to grant the decree of

cancellation of the registered sale deed and refusing to grant declaration

of title of the property in her favour attained finality and it was the

defendant No.1 who unsuccessfully preferred the appeal before the First

Appellate Court challenging the decree of permanent injunction in favour

of the original plaintiff.

2.9 Feeling aggrieved and dissatisfied with the judgment and decree

passed by the First Appellate Court, defendant No.1 preferred the

Second Appeal before the High Court. The High Court framed the

following substantial questions of law:-

“(1) Whether in the facts and circumstances of the case.
Courts below, particular appellate Court has committed
serious error of law in holding that so far as the relief of
cancellation of sale deed is concerned, it is barred by
limitation and so far as the relief of injunction is
concerned, it is not barred by limitation as plaintiff has
continuous cause of action for that relief?

5

(2) Whether in the facts and circumstances of the case,
is it possible to draw conclusion about possession of the
either party? Whether in arriving at finding as to the
possession Courts below have correctly appreciated
materials on record or have committed serious error of
law?”

2.10 By 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

6
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 the permanent injunction sought and granted in

favour of the plaintiff is unjust and contrary to Section 38 read with

Section 41 of the Specific Relief Act.

3.2 It is further contended that even the relief for permanent injunction

was contrary to the evidence on record. It is submitted that as such,

right from the execution of the registered Sale Deed dated 17.06.1975,

the defendant No.1 is in possession of the entire suit land. It is

submitted that right from 1975 in the Revenue record, the name of the

defendant No.1 is shown as a cultivator and in possession. It is

submitted that even defendant No.1 also availed a bank loan where the

suit property was given as a collateral security. It is submitted that even

in the registered sale deed, it was specifically mentioned that the full sale

consideration has been paid and that the defendant No.1 – purchaser

was put in possession of the entire land. It is urged that once the trial

court believed the execution of the registered sale deed with respect to

the entire land in question and also believed that the full sale

consideration with respect to the entire land in question had been paid,

the trial court ought to have believed that part of the sale deed in which it

was specifically mentioned that possession of the entire land in question

was handed over to the defendant No.1. It is submitted therefore that all
7
the Courts have materially erred in believing the possession of the

plaintiff with respect to 5 acres and 15 gunthas of land.

3.3 It is further submitted by Shri Shishodia, learned Senior Advocate

appearing on behalf of the original defendant No.1, that even otherwise,

all the Courts below have materially erred in granting the relief of

permanent injunction in favour of the plaintiff. It is contended that once

the plaintiff failed to get any relief regarding the declaration as to title and

the registered sale deed in favour of the defendant No.1 has been

believed, in that case, as the relief for permanent injunction was a

consequential relief sought in the suit, the plaintiff shall not be entitled to

any protection and/or any injunction protecting her alleged possession.

3.4 It is further submitted that the Courts below have not properly

appreciated the fact that once the plaintiff failed to get any relief

regarding declaration as to title and the registered sale deed in favour of

the defendant No.1 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.

8
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.1 all along has been in possession and in exclusive

possession of the suit land, which stand protected by the judicial orders

all throughout in recognition of the said fact.

3.7 Making the above submissions, it is prayed to allow the present

appeal and quash and set aside the judgment and decree passed by the

trial court of granting permanent injunction as affirmed by the High Court.

9

4. Present appeal is vehemently opposed by Shri Rauf Rahim,

learned Advocate appearing on behalf of the original plaintiff.

4.1 It is vehemently submitted by Shri Rahim, learned Advocate

appearing on behalf of the original plaintiff that as such there are

concurrent findings of fact recorded by all the Courts below holding that

the plaintiff is in possession of the entire suit land, i.e., 5 acre and 15

gunthas of land. It is submitted that these finding of facts have been

recorded by all the Courts below on appreciation of evidence on record,

both oral as well as documentary. It is further submitted that as the

plaintiff is found to be in settled possession, the only remedy available to

defendant No.1 would be to file a substantive suit to get the relief of

possession. Reliance is placed on the decision of this Court in the case

of Anathula Sudhakar Vs. P. Buchi Reddy, (2008) 4 SCC 594.

4.2 It is submitted that in the suit filed by the plaintiff to protect her

possession, defendant No.1 cannot get the relief of possession in his

favour. It is submitted that even no counter claim was filed on behalf of

the defendant No.1 to protect his possession, if any.

4.3 It is further submitted by the learned Advocate appearing on behalf

of the original plaintiff that the plaintiff proved by oral as well as

documentary evidence that she is cultivating the suit land in question

and that she is in possession of the said land. It is submitted that on the
10
other hand defendant No.1 did not lead any evidence to prove his

possession. It is submitted that no evidence was led by the defendant

No.1 to prove his possession. It is urged that, once the plaintiff was

found to be in possession of the suit land, no error was committed by the

trial court granting the relief of permanent injunction and the same is

rightly affirmed by the First Appellate Court as well as the High Court.

4.4 It is further submitted by learned Advocate appearing on behalf of

the original plaintiff that the High Court has 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 ad-

measuring 1-0 guntha, which even according to the plaintiff was in

11
possession of the defendant No.1. The plaintiff also prayed for

permanent injunction with respect to the entire agricultural land ad-

measuring 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 decree for cancellation of the registered sale deed

and refused to grant a declaration as prayed. Therefore, so far as on the

aspect of title of the land in question is concerned, the plaintiff lost. On

appreciation of evidence, the trial court held that the husband of the

plaintiff executed the registered sale deed in favour of the defendant

No.1 for a value consideration. The judgment and order passed by the

trial court refusing to grant the decree of cancellation of the registered

sale deed and the declaration has attained finality. This is because no

appeal was filed by the plaintiff.

6.2 However, the trial court granted the permanent injunction in favour

of the plaintiff restraining defendant No.1 from disturbing the possession

of the plaintiff with respect to 5 acres and 15 gunthas of land. It was the

defendant No.1, who preferred the appeal before the First Appellate

Court and thereafter before the High Court challenging the decree for

permanent injunction. The High Court by the impugned judgment and

order has observed that as relief for permanent injunction, by the plaintiff

12
can be said to be a substantive relief, therefore, when the plaintiff is

found to be in possession of 5 acres and 15 gunthas of land, the plaintiff

is entitled to the relief of permeant injunction for protecting her

possession.

7. Therefore, the short question, which is posed for the consideration

of this Court is, whether, in a case where the plaintiff has lost so far as

the title is concerned and the defendant against whom the permanent

injunction is sought is the true owner of the land, whether the plaintiff is

entitled to a relief of permanent injunction against the true owner, more

particularly, when the plaintiff has lost so far as the title is concerned and

can thereafter the plaintiff be permitted to contend that despite the fact

that the plaintiff has lost so far as the title is concerned, her possession

be protected by way of injunction and that the true owner has to file a

substantive suit claiming the possession.

8. So far as the submission on behalf of the defendant No.1 that even

the suit for permanent injunction is barred by law of limitation and the

further submission of defendant No.1 that the registered sale deed was

executed on 17.06.1975 and immediately thereafter the name of the

defendant No.1 was mutated in the Revenue record and thereafter all

throughout 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

13
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 defendant No.1

was mutated in the Revenue record as an owner and cultivator and the

plaintiff, who claims to be in possession of the land and cultivating the

same, is deemed to have the knowledge of the said entry.

8.1 In the case of Dilboo Vs. Dhanraji, (2000) 7 SCC 702, it is

observed and held by this Court that where there is a dispute that the

suit is filed beyond the period of limitation, the plaintiff would have to

aver and prove that the suit is within the period of limitation as

14
prescribed and in the absence of any averment or proof to show that the

suit is within time, it is the plaintiff who would fail. It is further observed

that whenever a document is registered the date of registration becomes

the date of deemed knowledge. It is further observed that in other cases

where a fact could be discovered by due diligence then deemed

knowledge would be attributed to the plaintiff because a party cannot be

allowed to extend the period of limitation by merely claiming that he had

no knowledge.

8.2 Applying the law laid down by this Court in the aforesaid decision

to the facts of the case on hand, it is noted that the registered sale deed

in favour of defendant No.1 is dated 17.06.1975 and thereafter

immediately the name of defendant No.1 – purchaser was mutated in the

Revenue record, which continued till the filing of the suit and the name of

defendant No.1 is shown as an owner and cultivator and even the crop

grown is also shown and when the plaintiff claims that she is in

possession and cultivating the land, she would have known the above

facts, if she had exercised due diligence and therefore as observed by

this Court, the plaintiff(s) can be said to have deemed knowledge of the

title as well as possession of defendant No.1. It is to be noted that even

in the registered sale deed, it was mentioned that the possession of the

entire land in question has been handed over to defendant No.1 –

purchaser. At this stage, it is required to be noted that the execution of

15
the registered sale deed and the payment of full sale consideration

mentioned in the registered sale deed has been believed and accepted

by all the courts below. Therefore, there was no reason for the trial court

not to believe the averments in the registered sale deed of handing over

the possession to the defendant No.1 – purchaser. The relief of

permanent injunction sought by the plaintiff as such 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

16
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.1 is held to be the true and

absolute owner of the property in question, pursuant to the execution of

the sale deed dated 17.06.1975 in his favour, the true owner cannot be

restrained by way of an injunction against him. In a given case, the

plaintiff may succeed in getting the injunction even by filing a simple suit

for permanent injunction in a case where there is a cloud on the title.

However, once the dispute with respect to title is settled and it is held

against the plaintiff, in that case, the suit by the plaintiff for permanent

injunction shall not be maintainable against the true owner. In such a

situation, it will not be open for the plaintiff to contend that though he/she

has lost the case so far as the title dispute is concerned, the defendant –

the true owner still be restrained from disturbing his/her possession and

his/her possession be protected. In the present case, as observed

hereinabove and it is not in dispute that the suit filed by the plaintiff for

cancellation of the registered sale deed and declaration has been

dismissed and the registered sale deed in favour of the defendant No.1

has been believed and thereby defendant No.1 is held to be the true and

absolute owner of the suit land in question. The judgment and decree

passed by the trial court in so far as refusing to grant the relief for

cancellation of the registered sale deed and declaration has attained

finality. Despite the fact that the plaintiff has lost so far as the title is
17
concerned, still the Courts below have granted relief of permanent

injunction against the defendant No.1 – the absolute owner of the land in

question, which is unsustainable, both, on law as well as on facts. An

injunction cannot be issued against a true owner or title holder and in

favour of a trespasser or a person in unlawful possession.

9.1 At this stage, the decision of this Court in the case of Jharkhand

State Housing Board Vs. Didar Singh and Anr., (2019) 17 SCC 692 is

required to be referred to. In the said decision, it is observed and held

by this Court that though a bare suit for injunction in the absence of

declaration relief would be maintainable and 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 the relief. It is further

observed and held that, however, when the defendant raises a 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 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
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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 Vs. 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 rights of ownership has a perfectly good title against all the

world but the rightful owner. Therefore, the plaintiff is not entitled to any

injunction and/or protect his possession against the rightful owner, more

particularly, when he fails to get the declaratory relief and the dispute

with respect to the title comes to an end.

10. Now, so far as the reliance placed upon the decision of this Court

in the case of Anathula Sudhakar (supra) by the learned Advocate

appearing on behalf of the original plaintiff in support of his submission

that in a suit for permanent injunction to restrain the defendant to

interfere with the plaintiff’s possession, the only thing the plaintiff will

have to establish is that as on the date of the suit, he was in lawful

possession of the suit property and the defendant has tried to interfere

or disturb his possession is concerned, what is observed by this Court in

paragraph 15 is the “lawful possession” of the plaintiff. In the present
19
case the plaintiff, who has failed to get any declaratory relief and the

defendant No.1 is held to be a true and absolute owner on the basis of

the registered sale deed on payment of full sale consideration thereafter

the plaintiff’s possession cannot be said to be “lawful possession”.

Therefore, the plaintiff is not entitled to any permanent injunction against

the true owner in the instant case.

11. From the impugned judgment and order passed by the High Court,

it appears that the High Court has not properly appreciated the

distinction between a substantive relief and a consequential relief. The

High Court has observed that in the instant case the relief of permanent

injunction can be said to be a substantive relief, which is clearly an

erroneous view. It is to be noted that the main reliefs sought by the

plaintiff in the suit were cancellation of the sale deed and declaration and

the prayer of permanent injunction restraining defendant No.1 from

disturbing her possession can be said to be a consequential relief.

Therefore, the title to the property was the basis of the relief of

possession. If that be so, in the present case, the relief for permanent

injunction can be said to be a consequential relief and not a substantive

relief as observed and held by the High Court. Therefore, once the

plaintiff has failed to get any substantive relief of cancellation of the sale

deed and failed to get any declaratory relief, and as observed

hereinabove, relief of injunction can be said to be a consequential relief.
20
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 the plaintiff that even if

the plaintiff failed to get the declaratory relief and relief for cancellation of

registered sale deed and her suit for the said reliefs came to be

dismissed and the plaintiff is found to be in possession and therefore,

the only remedy available to the defendant No.1 would be to file a

substantive suit to get back the possession is noticed only to be rejected

outright. It is the contention on behalf of the plaintiff that once the
21
plaintiff is found to be in possession, her possession cannot be disturbed

except in due process of law and the defendant No.1 though may be the

true owner has to file a substantive suit for recovery of possession.

While considering the aforesaid submission, the decision of this Court in

the case of Maria Margarida Sequeira Fernandes Vs. Erasmo Jack

de Sequeira, (2012) 5 SCC 370 is required to be referred to. What is

meant by due process of law has been explained by this court in

paragraph 79, which reads as under:-

“79. Due process of law means that nobody ought to be
condemned unheard. The due process of law means a
person in settled possession will not be dispossessed
except by due process of law. Due process means an
opportunity to the defendant to file pleadings including
written statement and documents before the court of law.

It does not mean the whole trial. Due process of law is
satisfied the moment rights of the parties are adjudicated
upon by a competent court.”

In the said decision, this Court has approved the following findings

of the High Court of Delhi in Thomas Cook (India) Ltd. Vs. Hotel

Imperial (2006) 88 DRJ 545 :-

“28. The expressions ‘due process of law’, ‘due course of
law’ and ‘recourse to law’ have been interchangeably
used in the decisions referred to above which say that the
settled possession of even a person in unlawful
possession cannot be disturbed ‘forcibly’ by the true
owner taking law in his own hands. All these expressions,
however, mean the same thing—ejectment from settled
possession can only be had by recourse to a court of law.

Clearly, ‘due process of law’ or ‘due course of law’, here,
simply mean that a person in settled possession cannot

22
be ejected without a court of law having adjudicated upon
his rights qua the true owner.

Now, this ‘due process’ or ‘due course’ condition is
satisfied the moment the rights 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 injunction anyway? I would think not. In any
event, the ‘recourse to law’ stipulation stands satisfied
when a judicial determination is made with regard to the
first party’s protective action. Thus, in the present case,
the plaintiff’s failure to make out a case for an injunction
does not mean that its consequent cessation of user of
the said two rooms would have been brought about
without recourse to law.”

12.1 Applying the law laid down by this Court in the aforesaid decision

to the facts of the case on hand and once the rights of the parties are

adjudicated and the defendant No.1 is held to be the true owner on the

basis of the registered sale deed and on payment of full sale

consideration, it can be said that due process of law has been followed

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and thereafter the plaintiff is not entitled to any permanent injunction

against the true owner.

13. In view of the above discussion and for the reasons stated above,

all the Courts below have erred in granting permanent 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.

14. In view of the above and for the reasons stated above, present

Appeal Succeeds. The judgment and decree passed by the trial court

confirmed by the First Appellate Court and the High Court by the

impugned judgment and order are hereby quashed and set aside.

Consequently, the suit filed by the plaintiff for permanent injunction

against the defendant No.1 stands dismissed. Meaning thereby, the

entire suit filed by the plaintiff stands dismissed.

Present Appeal is accordingly Allowed. However, in the facts and

circumstances of the case, there shall be no order as to costs.

………………………………….J.

                                               [M.R. SHAH]



NEW DELHI;                                 ………………………………….J.
MARCH 03, 2022.                               [B.V. NAGARATHNA]

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