Case Note & Summary
The case involves a second appeal arising from a suit for declaration of ownership and permanent injunction filed by the respondents (original plaintiffs) against the appellants (original defendants) concerning a suit field. The plaintiffs claimed to be owners in possession of the suit property. The trial court and the first appellate court concurrently found that the plaintiffs failed to establish their ownership but granted the relief of permanent injunction on the ground that they were in possession. The defendants appealed to the High Court, raising substantial questions of law as to whether the plaintiffs could be granted injunction without proving ownership. The High Court, after hearing counsel, held that the concurrent findings of fact regarding possession were not perverse and that a plaintiff in possession is entitled to seek injunction against a trespasser under Section 38 of the Specific Relief Act, 1963. The court dismissed the appeal, affirming the decisions of the courts below.
Headnote
A) Property Law - Possession - Injunction - Specific Relief Act, 1963, Section 38 - Plaintiffs sought declaration of ownership and injunction but failed to prove title - Courts below granted injunction based on possession - Held that a person in possession can seek injunction against a trespasser without proving ownership, and concurrent findings of fact on possession are binding in second appeal unless perverse (Paras 2-5).
Issue of Consideration
Whether the plaintiffs/respondents, who failed to establish ownership, could still be granted relief of declaration and permanent injunction based on possession alone.
Final Decision
The appeal is dismissed. The concurrent findings of the courts below are upheld. No order as to costs.
Law Points
- Possession is a substantive right
- Injunction can be granted on basis of possession alone
- Burden of proof on defendant to show better title
- Concurrent findings of fact not interfered with in second appeal unless perverse
Case Details
2017 LawText (BOM) (07) 141
Second Appeal No. 31 of 2007
Mr. P. S. Lotlikar for appellants, Mr. Sudin Usgaonkar (Senior Advocate) with Ms. V. Palyekar for respondent nos. 1(a) to 1(e), 4 and 5
Shri Ismail Adam Khan (since deceased) through his legal heirs and Smt. Bibhiji Ismail Khan
Shri Gajanan Bhiku Velingkar (since deceased) through his legal heirs and others
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Nature of Litigation
Second appeal against concurrent findings in a suit for declaration of ownership and permanent injunction.
Remedy Sought
Appellants sought to set aside the decree of permanent injunction granted in favor of respondents/plaintiffs.
Filing Reason
Appellants challenged the concurrent findings of the courts below which granted injunction to respondents despite failure to prove ownership.
Previous Decisions
Trial court and first appellate court found that plaintiffs failed to establish ownership but granted injunction based on possession.
Issues
Whether the respondents/plaintiffs who had approached the Court with the plea that they were owners in possession of the suit field would be granted the reliefs of declaration and permanent injunction after having found that they had failed to establish that they were owners.
Submissions/Arguments
Appellants argued that since plaintiffs failed to prove ownership, they were not entitled to injunction.
Respondents contended that they were in possession and therefore entitled to injunction against trespassers.
Ratio Decidendi
A plaintiff in possession of property, even without proving ownership, is entitled to seek an injunction against a trespasser under Section 38 of the Specific Relief Act, 1963. Concurrent findings of fact on possession are binding in a second appeal unless shown to be perverse.
Judgment Excerpts
Heard Mr. P. S. Lotlikar, learned counsel appearing for the appellants and Mr. Sudin Usgaonkar, learned Senior Counsel appearing for the respondent nos. 1(a) to 1(e) and 4 and 5.
The above appeal came to be admitted by an order dated 14.06.2007 on the following substantial questions of law : 1. Whether the respondents/plaintiffs who had approached the Court with the plea that they were owners in possession of the suit field would be granted the reliefs of declaration and permanent injunction as has been done by the Courts below, after having found that the respondents/plaintiffs had failed to establish that they were owners
Procedural History
The suit was filed by the respondents (original plaintiffs) for declaration of ownership and permanent injunction. The trial court decreed the suit granting injunction but not declaration. The first appellate court confirmed the decree. The defendants filed a second appeal which was admitted on 14.06.2007 on the substantial question of law. The High Court heard the appeal and dismissed it on 28.07.2017.
Acts & Sections
- Specific Relief Act, 1963: Section 38
