JUDGMENT
M.M. Kumar, J.
1. This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging concurrent findings of facts recorded by both the Courts below. The suit of the plaintiff-appellant has been dismissed by both the Courts below.
2. Plaintiff-appellant filed a suit for permanent injunction restraining defendant-respondents from forcibly dispossessing him from the suit land on account of partition in between the defendant-respondents. The plaintiff-appellant claimed that he earlier filed a suit for permanent injunction in respect of the suit land which was decreed in his favour on 12.6.1975. Defendant respondent No. 2 Teja Singh filed an application seeking setting aside of exparte decree which was dismissed on 12.1.1977. It is further averred that suit land was mortgaged by defendant-respondent No. 2 to one Karim Baksh which became property of the custodian. Teja Singh remained unable to redeem the suit land from the custodian and later on authorised plaintiff-appellant by an agreement to get it redeemed. It has been alleged that till the time Teja Singh would not pay the mortgaged amount to the plaintiff-appellant, the land would remain with him as mortgagee. Plaintiff-appellant has made averment that he installed tubewell in khasra No. 24 and has been in cultivating possession of the suit land for over 12 years. Defendant-respondent is alleged to have failed to get possession of the suit land from the plaintiff-appellant and then maneouvered the filing of an application through defendant-respondent No. 1 Sadhu Singh for partition before Tehsildar, Batala without impleading the plaintiff-appellant as party. On 3.6.1976 the order of partition was passed and it was claimed by the plaintiff-appellant that such an order of partition is not binding on him. It is still further alleged that defendant-respondents are bent upon to take possession of the suit land.
3. Defendant-respondent Nos. 1, 4, 5, 6 and 8 filed the written statement and contested the suit. Passing of an ex parte decree in favour of plaintiff-appellant has been controverted by alleging that the decree is collusive as defendant-respondent No. 2 Teja Singh is uncle of plaintiff-appellant and therefore, decree has no effect on the rights of the afore mentioned defendant-respondent. The possession of the plaintiff-appellant has also been disputed and it is claimed that plaintiff-appellant has no right to redeem the suit land. The land has been redeemed in favour of Teja Singh and it has been specifically denied that the suit land is mortgaged with plaintiff-appellant. The defendant-respondent further alleged that they have been owner in possession of the suit land and the plaintiff-appellant has never installed any tubewell etc. The version of the plaintiff-appellant with regard to institution of partition proceedings have also been denied, It is alleged that the plaintiff-appellant was party in the partition proceedings in which they have got possession of the suit land . The appeal filed by the plaintiff-appellant against the order of partition has been dismissed and, therefore, it is claimed that plaintiff-appellant is bound by the order of partition. Defendant-respondents in their written statement also pleaded that through partition proceedings on 18.7.1978 they had taken possession and have deposited compensation in the Court. It is still further claimed that the suit is barred under the provisions of the Specific Relief Act, 1963 and Section 80 of the Punjab Land Revenue Act, 1887. On the pleadings of the parties, the trial Court framed the following issues:-
“1. Whether plaintiff is in possession of the suit land as mortgagee? OPP.
2. Whether the said mortgage stood redeemed. If so when and to what effect? OPD
3. Whether the decree was passed in favour of the plaintiff on 12.6.1975. If so to what effect? OPP
4. Whether the suit is barred under Section 158 of the Punjab Land Revenue Act? OPD
5. Whether the decree is collusive? OPD
6. Whether order of Tehsildar Batala, for partition is not binding upon the plaintiff? OPP
7. Whether defendant took possession of the suit land in pursuance of the partition proceedings as alleged? OPD
8. Whether the plaintiff is entitled to the injunction prayed for? OPP.
9. Relief.”
4. On issue Nos. 1 and 2 both the Courts below have returned the finding that possession of the plaintiff-appellant was not that of a mortgagee and with the police help, he had obtained possession. The basis of the afore-mentioned finding is that the agreement Ex.Pl set up by the plaintiff-appellant has never been acted upon. No evidence was produced by the plaintiff-appellant in support of the plea that he deposited the mortgage amount with the custodian for getting the land redeemed. No receipt in respect of payment of mortgage amount paid by the plaintiff-appellant to the custodian, the mortgagee, has been produced. In Ex.D2 which is copy of mutation dated 30.11.1976, it is mentioned that Teja Singh defendant-respondent No. 2 is a mortgagor who was present and who deposited the mortgage amount of Rs. 900/-. Accordingly mutation of redemption was sanctioned in the name of Teja Singh. It has been found that the land was redeemed by Teja Singh, defendant-respondent No. 2 and he was the one who paid the mortgage amount. The agreement between the parties Ex.P1 was never acted upon. Document Ex.D6 which is a copy of report of Roznamcha dated 12.2.1975 also contradicts the stand of the plaintiff-appellant because it is mentioned in the aforesaid document that vide order of the custodian on 22.2.1968, the suit land was redeemed and Teja Singh, defendant-respondent No. 2 mortgagor was in possession. Therefore, he was delivered symbolic possession as owner of the suit land. Similarly in the copy of the Jamabandi for the year 1975-76 in the column ‘cultivation’ Teja Singh is shown as mortgagor and custodian is mentioned as mortgagee. Similarly, copy of khasra girdawari Ex.D8 also proves the afore mentioned fact.
5. There is only one entry in favour of plaintiff-respondent wherein he has been shown in possession as tenant in Rabi 1980. Ld. Addl. District Judge has stated this entry as stray entry by holding that it would not be sufficient to establish possession of the plaintiff-appellant on the suit land as mortgagee. The views of the Civil Judge have been affirmed.
6. Both the courts below have further held that merely because the plaintiff-appellants proved to be presently in possession, the relief of injunction cannot be granted in his favour because DW5 Satnam Singh had categorically stated that he succeeded in dispossessing them from the suit land with the help of the police. Similarly are the statements of other DWs who stated that they have been recently dispossessed by the plaintiff-appellant. This version of the DWs have been corroborated from the copy of the Roznamcha dated 18.1.1978 which shows that actually possession of the suit land was delivered to defendant-respondent Sadhu Singh and others. It is also proved on record that suit land has fallen to the share of Sadhu Singh and others in partition proceedings by an order Ex.D3 and plaintiff-appellant was a party to those proceedings. The suit land thus has been allotted to defendant-respondents in partition proceedings and they have been dispossessed by the plaintiff-appellant. Therefore, the relief of injunction has been declined on the ground that status of possession of the plaintiff-appellant is that of a trespasser as he failed to prove his possession of the suit land.
7. Mr. H.S. Giani, learned counsel for the appellant has argued that once the court below has recorded a finding that the plaintiff-appellant is in possession of the suit land then injunction should have been granted in his favour and the defendant-respondents could dispossess him only in accordance with law. The learned counsel has also argued that by partition proceedings alone, the possession of the land could not be handed over to the defendant-respondents because the possession of the plaintiff-appellants is much earlier to the order of partition. According to the learned counsel, if any right is required by the defendant-respondents it is only after the order of partition which would not affect the possession of the plaintiff-appellant. He has stressed that in true sense the ownership flows from the order of partition and the defendant-respondents were stranger before the passing of that order.
8. I have thoughtfully considered the submissions made by the learned counsel but do not feel persuaded to take a different view than the one taken by the Courts below. It is well settled that no injunction can be granted against the true owner at the instance of a third party. In fact the suit of such a nature would itself not be maintainable. The aforesaid view has been taken by the Supreme Court in the case of Tamil Nadu Housing Board v. Viswam, (1996)8 S.C.C. 259, Mahadeo Sav Shelke v. Pune Municipal Corporation, (1995)3 S.C.C. 33, Prataparai N. Kothari v. John Braganza, (1999)4 S.C.C. 403 and Premjit Ratansey Shah v. Union of India (1994)5 S.C.C. 547. The argument of the learned counsel that the possession of the plaintiff-appellant is earlier to the date of partition proceedings would not require detailed consideration because there is no finding to that effect. The order of partition is dated 3.6.1976 passed by Tehsildar, Batala and the plaintiff-appellant was a party to the aforementioned order. It is a specific finding recorded by the Court that the plaintiff-appellant has failed to prove himself that he is in possession since 1978. Therefore, there is no substance in the aforementioned argument of the learned counsel.
For the reasons aforestated, this appeal fails and the same is dismissed