ORDER
K. Sampath, J.
1. The defendant in O.S. No. 208 of 1985, on the file of the Subordinate Judge’s Court, Vellore, is the appellant in the second appeal. The first respondent herein, who died pending second appeal and whose Legal Representatives have been brought on record as the other respondents, filed the suit for declaration and permanent injunction in respect of A and B schedule properties on the following averments:
2. Plaint A and B schedule properties originally belonged to one Benjamin. They are adjacent to each other. Benjamin sold the properties to Dhanabakiyam on 24.9.1951. By mistake, the “B” schedule property was omitted to be mentioned in the sale deed. However, ever since the date of sale in her favour, Dhanabakiyam was in possession and enjoyment of both the items. On 15.3.1967 Dhanabakiyam sold the properties to the plaintiff. Since the date of his purchase, the plaintiff had been in possession and enjoyment of the properties. As regards the property not covered by the sale deed, the plaintiff had prescribed for title by adverse possession. He had been in possession and enjoyment of B Schedule property by putting up a thatched house, cow shed and by residing in the thatched house. Adjacent to the thatched house he put up a pucca house and he had been living there. The house has been assessed to property tax. He had planted coconut trees, mango trees, mannilla tamarind trees, guava trees, and sweet-lime trees. The plaintiff had also dug a well in the A schedule property and had accumulated the earth removed in the B schedule property. Both the properties are on the same level. B schedule property is a part of Survey No. 445 and it is shown in yellow colour in the plan attached to the plaint. The defendant had purchased the property belonging to her in 1951. The plaintiff and his vendor Dhanabakiyam had been in possession and enjoyment of B schedule to the knowledge of the defendant for a long time. The defendant had not claimed any right in B schedule property since 1951. She has lost whatever right she had in the property, the plaintiff having prescribed for title by adverse possession. Just prior to the suit, the suit properties and the adjacent poramboke land were measured and it was found that the defendant was in possession of two acres of government land. On the basis of this, the defendant was trying to claim rights in B schedule property. She is also attempting to encroach upon the property. B schedule property had been assigned to one Narayanan belonging to the Scheduled Caste Community and hailing from Kangeya Nallur village. In these circumstances, the suit has been filed for declaration of plaintiffs proprietory right or his possessory title to B schedule property and for permanent injunction restraining the defendant from interfering with his possession and enjoyment of the B schedule property.
3. The defendant resisted the suit contending inter alia as follows:
In the sale deed, dt.24.1.1951 in favour of Dhanabakiyam, only A schedule property is mentioned. She had no right in B schedule property. The averment that Dhanabakiyam was in possession and enjoyment of B schedule property is false. Equally, the claim by the plaintiff that he had been in possession and enjoyment from the date of sale, i.e. on 15.3.1967, of the B schedule property, is also false. His claim that he put up a permanent structure in 1951 is also false. The defendant purchased 5.86 acres comprised in S.No. 445/3 on 26.3.1955 from one Narayanan of Kangeya Nallur. The plaintiff has property adjacent to the B schedule property. Because of that, the defendant sought the assistance of the plaintiff to cultivate her property in B schedule. In 1980, she also put up a brick building in the B schedule property. When the plaintiff and the defendant were friendly, the plaintiff sought the defendant’s permission to occupy her property, and the defendant also permitted him. The plaintiff also supervised the defendant’s land for two years prior to the suit. The plaintiff wanted the defendant to sell her two acres to him, but, the defendant refused. Ill feeling arose because of that. Close to B schedule property, Vellore Engineering College is situated. The value of the property has gone up. With a view to cheat and defraud the defendant, the plaintiff is claiming right in B schedule property. He has occupied the B schedule property unlawfully. The plaintiff had not been in possession nor had he claimed any right in B schedule property. It is not correct to say that just prior to the suit, the suit properties and the adjacent government poramboke lands were measured. The plaintiff has no right whatsoever in B schedule property. The suit is liable to be dismissed.
4. On the above pleadings, the trial Court framed the necessary issues and on the oral and the documentary evidence, found as follows:
The plaintiff did not have any right in the suit B schedule property. There was no mistake in the description of the properties covered by the sale deeds, dt.24.9.1951 and 15.3.1967. The plaintiff had not prescribed for title by adverse possession with regard to B schedule property. The suit is not barred by limitation, So holding by judgment and decree, dt.20.3.1989, the learned Subordinate Judge dismissed the suit. The plaintiff filed appeal in A.S. No. 75 of 1989 before the Additional District Judge, Vellore. The learned Appellate Judge, by judgment and decree, dt.31.8.1989, reversed the decision of the trial Court, allowed the appeal and decreed the suit, holding that even if the plaintiff did not have right in the B schedule property, he had been in possession and enjoyment for over the statutory period and therefore he was entitled to injunction, and that he was entitled to enjoy B schedule property till such time either Narayanan or the Government took steps to repossess the property.
5. It is as against that the present second appeal has been filed.
6. At the time of admission the following substantial questions of law were raised for decision:
1. Whether the lower appellate Court erred in law and misdirected itself in granting the consequential relief of injunction while denying the main relief of declaration of title?
2. Whether the lower appellate Court erred in law in granting injunction without the independent continuous and exclusive possession in the hands of the plaintiff for more than the statutory period and in the absence of proof of exclusive possession, as possession follows title?
7. The learned counsel for the appellant made the following submissions:
The lower appellate Court having held that the suit B schedule property was not conveyed under Exs. A.1 and A.2, and that the plaintiffs predecessors-in-title did not have any right in them, ought to have followed it up and held that the plaintiff did not have possession also. It was a case of permissive possession and after the defendant had called upon the plaintiff to surrender possession, it ceased to be permissive possession and became a case of trespass. The lower appellate Court was in error in relying on the report of the Advocate Commissioner for finding possession of the plaintiff. The lower appellate Court ought to have held that the house had been put up by the defendant and merely on the basis that a plaque has been placed in the suit property giving the name of the plaintiffs wife, the same could not prove the plea that the plaintiff had put up the construction. The lower appellate Court, having found that the construction had been put up only in 1981 as against the plaintiffs case that he put up construction in 1971, erred in holding that the construction had been put up by the plaintiff. The lower appellate Court was also in error in assuming that there was violation of assignment conditions. Having dismissed the suit with regard to declaration, the lower appellate Court was in error in decreeing the suit for permanent injunction. The lower appellate Court ought to have held that the defendant was a bona fide purchaser of the land, and that she had title to the same.
8. Mr. R. Margabandhu, learned counsel for the respondents, submitted that the sale deed in favour of the defendant was void and the possession of the plaintiff had been admitted by the defendant, that when once it was held that the sale deed in favour of the defendant was void it must be deemed that the defendant had no title and the possession of the plaintiff must be protected by a decree of injunction. The learned counsel also submitted that the lower appellate Court had found that the plaintiff had put up a permanent structure in the property, that the defendant had stood by and not objected to the same, and that it must be deemed that she had acquiesced in the construction, and the decree by the lower appellate Court had to be confirmed. The learned counsel referred to a number of decisions in support of his contentions.
9. The facts admitted and not disputed are as follows:
The suit B schedule property of an extent of two acres is part of 5.86 acres originally belonged to the Government and assigned to Narayanan, son of Sikku. The sale deeds, on the side of the plaintiff, do not relate to the B schedule two acres at all. He has not made out his case that it was mistakenly not included in the sale deeds. P.W.2/Dhanabagyam also speaks to her being in possession and selling only three acres twenty cents to the plaintiff. The plaintiff did not derive any right in respect of B schedule under his sale deed. Exs.A.3 to A.20 do not relate to patta No. 86 given to the suit property. Exs.A.21 and A.22/Property tax receipts have not been shown to relate to the suit property. The sale deed in favour of the defendant is in respect of the entire extent of 5.86 acres including the suit B schedule. The claim by the plaintiff that he put up construction in his own right is not true.
10. We are now left with two aspects – Whether the sale in favour of the defendant is not valid, and if it is not valid whether by reason of that the plaintiff can protect his possession. The above will be an additional substantial question of law to be answered in the second appeal. The terms of the assignment are as follows:
“Revenue Board, Standing Order Clause 41 Sub-clause (iii) – If the condition of non-alienation is violated or if the land ceases to be owned by the assignee or his legal heirs or (after ten years) other members of their class, owing to sale by process of law or otherwise, or if default is made in the payment of the government revenue on the dates prescribed, the grant will be liable to be resumed by the government who will be entitled to re-enter and take possession of the land without payment of any compensation or refund of the purchase money”
It is for the Government to act. If it does not it is not open to the plaintiff to act highhandedly commit trespass and apply for protection. He must establish a legal right to be in possession. Merely because there has been an alleged contravention of the terms of the assignment, it cannot mean that any third party can encroach upon or commit trespass in respect of the property, subject matter of such assignment. The standing order clearly provides that in the event of non-observance of the terms of the assignment, the grant will be liable to be resumed by the government, who will be entitled to re-enter and take possession of the land. It cannot, by any stretch of imagination, mean that the plaintiff can enter, take possession and put up construction. His possession, in my view, cannot be protected. The plaintiff must prove that he was in possession of the suit property in his own right. Absolutely, no, document has been produced to show that the suit property was in his possession in his own right. In such a situation it is well established that possessory right cannot be recognised. We should also notice that the plaintiff had attempted to tamper with the existing state of things. The Commissioner has clearly reported that in the stone inscription of the house in B schedule property the year of construction has been corrected as 1971 from 1981, Instead of reprimanding the plaintiff for tampering with or creating evidence, the lower appellate Court has put this factor as something in favour of the plaintiff. That is to say, the lower appellate Court has observed that the plaintiffs possession is established from 1981. Such an attitude, in my view, was not all justified. Somebody who encroaches upon another person’s property and puts up construction in a high handed manner, cannot seek the protection of the Court. This will be placing a premium on illegality. The further reasoning by the lower appellate Court that the Commissioner has found plaintiffs possession and therefore it must be accepted and protected is also clearly erroneous. Another aspect in respect of which the lower appellate Court has made a mistake is that it accepted the documents as pertaining to the suit property on the specious reasoning that the defendant had not shown that the documents produced by the plaintiff related to some other property forgetting that it was for the plaintiff to show that the documents produced by him related to the suit B schedule property.
11. The learned counsel relied on the following judgments in support of his stand that in as much as the plaintiff’s possession is accepted by the defendant, there must be an injunction in favour of the plaintiff.
12. The earliest judgment is one reported in Periasami Muthiriyan v. Anandayi, AIR 1924 Mad. 722. It has been laid down in that case that the possessory title of the plaintiff entitles him to an injunction against threatened possession by a person who is not the owner, and that a person in peaceful possession has a right to remain in possession against the whole world except the true owner, and a suit for an injunction by such a person, against any person, except the true owner, who threatened to dispossess him, is maintainable.
13. There is no quarrel over the proposition laid down in that decision. The facts here are different. We have already noted that the plaintiff came forward with a specific case that the suit B schedule property belonged to him by purchase, and that by mistake it had not been included in the sale deed in his favour. His further case was that even in the sale deed in favour of his vendor suit B schedule property had been omitted to be shown, but still his predecessors-in-title and himself had been in possession and enjoyment for over the statutory period by adverse possession. It has already been noted that his vendor, who was examined as P.W.2, spoke to her being in possession of only 3.20 acres excluding the B schedule two acres. We have also seen that the plaintiff had not connected the exhibits produced by him to the suit B schedule property. He had also tampered with the evidence by attempting to erase the year 1981 and introduce the year 1971 in the plaque. This has been noticed by the Advocate Commissioner as also the Courts below. Of course, the lower appellate Court reasoned that it would, show his possession in 1981 and his having put up the construction in the suit B schedule property. That by itself cannot clothe the plaintiff with any right to have his possession protected by the Court. His possession must be referable to some lawful right. That lawful right is totally absent in this case. The judgment of the lower Appellate Court is in the nature of special pleadings for the plaintiff. When it is found that he had no right to occupy the suit property, the lower appellate Court was in error in granting an injunction in his favour.
14. It is now necessary to refer to the other decisions relied on by the learned counsel for the appellant.
15. In Vasantha v. Rathinasami, 1988 (2) MLJ 192 Srinivasan, J. [as the learned Judge then was] in a Civil Miscellaneous Appeal against an order dismissing the application by the plaintiffs for injunction restraining the defendants therein from interfering with the possession of the plaintiffs, observed as follows:
“There is a general misconception that in every application for injunction the court should be satisfied about the existence of a prima facie case, the necessity for Court’s interference and the balance of convenience. Very often prima facie case has been wrongly understood as prima fades proof of title. It is forgotten that a prima facie does not mean anything more than that there is a serious question to be tried and there is a probability of success if the allegations of fact made by the party are proved. In an application under Order 39, Rule 1(c), C.P.C., the prima facie case has to be proved in that the plaintiff is in possession. The rule was introduced specifically in the Code in order to enable the court to maintain the status quo during the pendency of the proceedings. Even before the introduction of the rule, courts were preserving the status quo under inherent powers. In a case falling under Rule 1(c) it is meaningless to consider the question of prima facie title for it is well-known that even a trespasser in possession could protect his possession against whole world excepting the real owner. Hence, in an application for injunction restraining the defendant from interfering with the possession of the plaintiff, it is the primary duty of the plaintiff to prove his possession the date of the suit.”
On the basis of this decision, the learned counsel contended that the possession of the plaintiff in the instant case was an admitted fact and his possession had been rightly protected by the lower appellate Court, The case dealt with by Srinivasan, J. relates to interim orders. Even otherwise, the principle laid down is that even in the case of a trespasser, his possession must be protected against the whole world except the true owner. I am not accepting the position that the defendant in the instant case is not the true owner. She has purchased the property from the true owner. Perhaps the conditions of assignment had been given a go-by by the parties, but it is for the government to proceed against the vendor and the vendee and resume possession. But as long as such an action is not taken by the government, the position of such purchaser, in my view, is better than a person like the plaintiff in the instant case, who is a rank trespasser. He cannot take advantage of the alleged flouting of the conditions of assignment by the defendant and her vendor. The case relied on by the learned counsel is of no assistance.
16. In Kammavar Sangam v. Mani Janagarajan, it has been held that the relief of injunction available to person claiming on the basis of possessory title cannot be maintained against person having better title. Undoubtedly, the appellant in the instant case has better title than the plaintiff.
17. In Alagi Alamelu Achi v. Poniah Mudaliar, it has been held that when once the Court found that the plaintiffs possession was wrongful, such possession could not be protected by assistance of Court.
18. In Premji Ratansey Shah v. Union of India, the Supreme Court held as follows:
“Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963: the plaintiff must have personal interest in the matter. The interest or right not shown to be in existence, cannot be protected by injunction, the possession of a person who had no lawful right was wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser of a person who gained unlawful possession as against the owner”.
19. I had occasion to consider the position, in Sowrirajan v. Sundaram, , whether the possession of the trespasser can be protected?
20. In Mahadeo Savlaram Shelke v. Pune Municipal Corporation, the same Bench of the Supreme Court held that no injunction could be granted against rightful owner in favour of a person in unlawful possession.
21. In D.T.T.D.C. v. D.R. Mehara and Sons, a Division Bench of the Delhi High Court while dealing with the possession of a licensee after the expiry of the period of licence, held that such person’s possession was unlawful and illegal and the same could not be protected.
22. In Shiv Kumar Chadha v. Municipal Corporation of Delhi, it has been held that judicial proceeding cannot be used to protect or to perpetuate a wrong committed by a person who approaches the court.
23. The plaintiff cannot seek the assistance of this Court to protect his illegal possession. He has not come to Court with clean hands. He has not proved his title to plaint B Schedule. Nor has he proved his possession for over the statutory period.
24. Another point raised by the learned counsel for the respondents is that the defendant had acquiesced.
25. As to what is “acquiescence”, it has been set down in Wilmott v. Barber, [SARKAR’s LAW OF EVIDENCE, Volume 2, 15th Edition, page 1824] as follows:
“In the first place, the plaintiff (i.e. the party pleading acquiescence) must have made a mistake as to his legal rights;
secondly, the plaintiff must have expended some money or must have done some act (not necessarily upon the defendant’s land) on the faith of the mistaken belief;
thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it, he is in the same position, as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights;
fourthly, the defendant, the possessor of the legal right, must know of the plaintiff’s mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights;
lastly, the defendant, the possessor of the legal right must have encouraged the plaintiff in his expenditure of money, or in the other acts which he has done, either directly or by abstaining from asserting his legal right.
All these elements must exist.
26. It is not possible to say that all these elements are present in the instant case entitling the plaintiff to invoke the doctrine of acquiescence to protect his illegal possession. More than anything else there is total lack of pleading of acquiescence and it is axiomatic, that in the absence of pleading, no amount of evidence can be looked into.
27. For all the reasons stated above, the second appeal has to succeed. The substantial questions of law originally raised and framed now are answered in favour of the appellant and against the respondents. The judgment and the decree of the lower appellate Court are set aside and those of the trial Court restored. The suit will stand dismissed. No costs.
