Court No. - 19 Case :- FIRST APPEAL FROM ORDER No. - 1342 of 1999 Petitioner :- Ram Lal & Others Respondent :- Fakira & Others Petitioner Counsel :- A.K. Gupta Respondent Counsel :- V.K.Singh,M.K.Pandey,M.N.Singh Hon'ble Sanjay Misra,J.
Heard Sri Dinesh Mishra holding brief of Sri A.K. Gupta learned counsel for the
defendant appellant. The cause list has been revised. None appears on behalf of the
plaintiff respondents.
The defendant appellant is aggrieved against the judgement and order dated
30.10.1999 passed in Civil Appeal no. 114 of 1999 whereby the VIIth Additional
District Judge, Bijnor set aside the judgement and decree dated 28.1.1999 passed
by the Trial Court in original Suit no. 779 of 1991 Fakira & others Vs Ram Lal &
others.
Learned counsel for the defendant appellant has submitted that the order of remand
is illegal in view of the fact that when the Suit of the plaintiff respondent for
cancellation of sale deed dated 5.6.1985 relating to Khasra no. 330 was dismissed
on the ground of limitation the relief of injunction could not be granted to the
plaintiff respondent in view of the settled law as held by the Supreme Court in the
case of Hanumanthappa Vs Muninarayanappa reported in 1996 AWC 1850
wherein it has been laid down that no injunction can be issued against the lawful
owner of the property. He also submits that a person in possession of a property
cannot obtain an injunction against the true owner of the property by merely
enclosing the land by boundary wall.
Having considered the submission of learned counsel for the defendant appellant
and perused the record the first appellate court has remanded the matter to the Trial
Court for two reasons- the first is that the Trial Court while deciding the Suit did
not frame any issue and dismissed the Suit on an application Paper no. 9-ga relating
to an objection of limitation raised by the defendant. The second reason is that
although the Trial Court had rightly dismissed the Suit in so far as the relief of
cancellation of sale deed dated 5.6.1985 was concerned it being barred by the three
year Rule of limitation but it has erred in dismissing the Suit of the plaintiff
respondent for the relief of injunction because the plaintiff respondent claimed the
injunction against the defendant appellant not to interfere in his possession or to cut
the trees in the land in dispute which the plaintiff respondent claimed to be owner
by virtue of a registered sale deed dated 27.6.1985 obtained by him.
The submission of learned counsel for the defendant appellant that no injunction
can be granted against the true owner cannot be disputed at all however, the
application of the said principle in each and every case has to be seen for its
applicability. In the present case the defendant appellant claims ownership of the
land in question by virtue of the sale deed dated 5.6.1985 whereas the plaintiff
respondent claims ownership by virtue of the sale deed dated 27.6.1985. When the
sale deed of the defendant appellant could not be cancelled due to the bar of
limitation of three years Rule the court ought to have considered the relief of
injunction prayed by the plaintiff respondent in view of his averments that he is in
possession over the property in question by virtue of the sale deed dated 27.6.1985.
It appears that the Trial Court did not consider the said pleadings and relief of the
plaintiff respondent and erroneously dismissed the Suit of injunction also on the bar
of limitation of three years Rule. Clearly the limitation of three years is provided
for cancellation of sale deed and not for claiming injunction from the date of cause
of action. Consequently the first appellate court has rightly remanded the matter
back to the Trial Court for deciding the Suit of the plaintiff in so far as his claim for
injunction is concerned.
Under such circumstances the decision in the case of Hanumanthappa (supra)
would not have application in the facts and circumstances of the present case.
The appeal is accordingly dismissed.
Since the Suit was of the year 1991 it is expected that the Trial Court shall proceed
to decide the same as expeditiously as possible without granting any further
unnecessary adjournment to the parties.
No order is passed as to costs.
Order Date :- 5.1.2010
Pravin