JUDGMENT
N.K. Mody, J.
1. Being aggrieved by the order dated 3-11-2004 passed by Vth Addl. District Judge, Bhopal in Civil Suit No. 37-A/2004, whereby the application for grant of temporary injunction filed by the respondent No. 1 under Order XXXIX Rules 1 and 2, Civil Procedure Code has been allowed, the present appeal has been filed.
2. Short facts of the case are that the respondent No. 1 filed a suit for declaration, possession and permanent injunction alleging that the respondent No. 1 is in occupation of the suit property since last more than 30 years and on the basis of adverse possession, the respondent No. 1 has become the Bhumi Swami of the suit property as having the hostile title. It was, alleged by the respondent No. 1 that the land bearing survey No. 173 was in two parts in the revenue record, i.e., 173/1 and 173/2. The survey No. 173/1 measuring 1.17 acres was recorded in the name of Madhya Pradesh Industries Ltd., Bhopal and survey No. 173/2 measuring 11.56 acres was recorded in the name of Industries Department. It was alleged that out of 1.17 acres of land which is bearing survey No. 173/1 and which was transferred to M.P. Industries Ltd., the respondent No. 1 was in occupation of 0.95 acres amounting to 41382 square feet of land since 1967- 1968 peacefully within the knowledge of respondent No. 2. It was further alleged that out of this land mentioned hereinabove, respondent No. 1 is encroacher on a part of the land measuring 21850 square feet of land of 0.95 acres. The possession of respondent No. 1 has been removed by the Tehsildar (Nazul) Bhopal in the proceedings under Section 248 of M.P. Land Revenue Code (which shall be referred hereinafter to ‘the Code’) holding that the respondent No. 1 is a trespasser. It was alleged that since the title of the respondent No. 1 is based on hostile title, therefore, the respondent No. 1 has become owner of the suit property and is entitled for possession. It was further alleged that since the appellant is initiating the construction activities over the suit property, therefore, the appellant be restrained to raise any construction and the appellant be directed to maintain status-quo.
3. The application for temporary injunction filed by the respondent No. 1 was opposed by the appellant alleging that the suit property has been leased out to the appellant vide lease agreement dated 13-3-1999. The appellant has paid a premium and after obtaining the permission from the Municipal Corporation, Bhopal on 15-4-2002 and also after obtaining the possession on 23-9-2004, the appellant is developing the suit property for starting the industry and since the appellant is in legal possession of the suit property on the date of filing of the suit, therefore, the appellant can not be restrained from raising the construction.
4. After hearing the parties, learned Trial Court vide order dated 3-11-2004 observed that the respondent No. 1 is having an arguable case and if the appellant is not restrained from raising the construction over the suit property then the respondent No. 1 will suffer irreparably. Hence, learned Trial Court allowed the application and restrained the appellant from raising any construction over the suit property with a direction that if any delaying tactics adopted by the respondent No. 1 then the injunction order passed by the Court below shall be vacated.
5. Being aggrieved by the impugned order, the appellant has filed the present appeal alleging that no documents have been filed by the respondent No. 1 to show prima facie that the respondent No. 1 was in occupation of the suit property since last more than 30 years.
6. The contention of appellant is that since the suit land is in me industrial area and has been allotted to the appellant, therefore, the appellant is developing the suit property for starting the industrial activities for which the suit land has been allotted. On the strength of the photographs [Annexure A-11 (1) to Annexure A-11 (3)], it was tried to demonstrate that on spot the construction activities are going on. Learned Counsel for the respondent No. 1 submits that the learned Trial Court has framed the issues and the case is at the stage of cross-examination.
7. Learned Counsel for the appellant submits that the case of respondent No. 1 is not that the respondent No. 1 is the owner of the suit property on the basis of title but is based on hostile title for which the respondent No. 1 has to show prima facie that he is in peaceful possession of the suit property without any interruption and also, within the knowledge of respondent No. 2.
8. Learned Counsel for the respondent No. 1 submits that when the proceedings under Section 248 of the Code were initiated against the respondent No. 1, the objections were submitted and against the order of Tehsildar dated 24-4-2000, the appeal has been filed before S.D.O., Bhopal but in the meantime, the respondent No. 1 has been dispossessed.
9. Learned Counsel for the appellant has placed reliance on D.N. Venkatarayappa and Anr. v. State of Karnataka and Ors., AIR 1997 SC 2930, wherein the Hon’ble Supreme Court has held that what requires to be pleaded and proved is that the purchaser disclaimed his title under which he came into possession, set up adverse possession with necessary animus of asserting open and hostile title to the knowledge of the true owner and the later allowed the former, without any let or hindrance, to remain in possession and enjoyment of the property adverse to the interest of the true owner until the expiry of the prescribed period. Further attention of this Court has been drawn in Para 5 of the judgment of the Apex Court, wherein the Hon’ble Supreme Court has observed that in claiming adverse possession certain pleas have to be made such as when there is a derivative title as in the present case, if the appellants intend to plead adverse possession as against the State, they must disclaim their title and plead this hostile claim to the knowledge of the State and that the State had not taken any action within the prescribed period, it is only in those circumstances the appellant’s possession would become adverse.
10. Learned Counsel for the respondent No. 1 has placed reliance on various decisions of this Court in Shankarlal Rathore v. State of M.P. and Ors., reported in 1978 JLJ 51, State of Madhya Pradesh and Anr. v. Hariom General Industries and Anr., 1993 MPLJ 614 and Lal Bahadur Singh v. State of M.P., 1998(2) MPLJ 26, and submitted that the respondent No. 1 is having an arguable case, hence no illegality has been committed by the Court below in granting the injunction. Further reliance has been placed on a decision of this Court in Shankarlal Debiprasad Rathore v. State of M.P. and Ors., 1978 MPLJ, 419, wherein it has been observed in Paras 9 and 10 as under :–
“9. In the order dated 22nd March, 1977, passed in the earlier revision by Hon’ble Chief Justice, it has been observed that if the plaintiff is not in occupation, he has no case for temporary injunction. It is further observed that the result may be different, if he is in physical occupation of the suit house. The finding of the District Judge is that the plaintiff uses the suit house as a godown for storing his tobacco. This is, in my opinion, physical occupation. The District Judge did not apply correct principles for holding that the plaintiff did not make out a case for issue of temporary injunction.
10. The revision is allowed. The order of the District Judge dismissing the appeal and the order of the Trial Court dismissing the application for temporary injunction are set aside. A temporary injunction is issued for bidding the defendants to dispossess the plaintiff from the house in suit during the pendency of the suit. The Trial Court shall dispose of the suit as early as possible and real effort shall be made to decide it within three months.”
11. Further reliance has been placed by respondent No. 1 on Maharwal Khewaji Trust v. Baldev Dass, 2005(1) MPLJ (SC) 447 = (2004) 8 SCC 488, wherein the Hon’ble Supreme Court has observed that unless and until a case of irreparable loss or damage is made out by a party to the suit, the Court should not permit a change of the said status-quo, which may lead to loss or damage being caused to the party who may ultimately succeed, and may further lead to multiplicity of proceedings. In any event, it is always open to the other party to claim damages if the case of the party pleading a maintenance of the status quo is ultimately found to be baseless or, in an appropriate case, the Court may itself award damages for the loss suffered, if any, in this regard. Learned Counsel for the respondent No. 1 has placed reliance on Rame Gowda v. M. Varadappa Naidu and Anr., (2004) 1 SCC 769, wherein the Hon’ble Apex Court has observed that it is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. The Hon’ble Apex Court has placed reliance on a decision in Munshi Ram v. Delhi Administration, reported in AIR 1968 SC 702, wherein, no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend again the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an instruction upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh v. State of Punjab, (1975) 4 SCC 518, the Hon’ble Supreme Court clarified that it is difficult to lay down any hard-and- fast rule as to when the possession of a trespasser can mature into settled possession. The “settled possession” must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase “settled possession” does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to the actual physical possession, the Court laid down the following tests which may be adopted as a working rule for determining the attributes of “settled possession”.
(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period; (ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case; (iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and (iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner, has no right to destroy the crop grown by the trespasser and take forcible possession."
12. Learned Counsel for the appellant Smt. Shobha Menon submits that no documentary evidence has been produced by the respondent No. 1 to demonstrate that how the land in dispute was utilized by the respondent No. 1 for last 35 years. It was further submitted that since the appellant has spent a huge amount by depositing the premium and also by starting the commercial activities over the suit property therefore if the order passed by the Court below is maintained, then appellant will suffer irreparably. Reliance was placed on Hussainara Khatoon and Ors. v. Home Secretary, Bihar and Ors., AIR SCW (Vol. IV) 1995, wherein the Hon’ble Supreme Court has held that under Order 39 of the Code of Civil Procedure, the jurisdiction of the Court to interfere with the order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief, his conduct should be fair and honest.
13. Learned Counsel for the appellant submits that after applying the test laid down by the Hon’ble Supreme Court in Puran Singh (supra), except bare allegation in the plaint, there is nothing on record to demonstrate that the respondent No. 1 was in occupation of the suit land since last more than 35 years and was settled, i.e., effective, undisturbed and to the knowledge of the owner or without any attempt at concealment by the trespasser by the respondent No. 1 Learned Counsel for the appellant further submits that land in question is undisputedly a Government land and an industrial area is developing in the vicinity where the suit land is situated.
14. In view of the facts mentioned hereinabove, this appeal stands allowed. The impugned order is set aside subject to furnishing an undertaking by the appellant to the effect that till disposal of suit, appellant shall raise such type of construction which shall be easy to remove, in case the suit of respondent No. 1 is allowed, the appellant shall remove the upper structure without claiming any cost and shall also furnish a surety for an amount of Rs. 50,000/- to the effect that if the appellant commits any default in removing the structure, then appellant shall be further liable for the amount of loss, which would be determined by the learned Trial Court.