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Smt. Dhanwanti Vs. Ramai

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  • Decided on : May-08-1979

LegalCrystal Citation : legalcrystal.com/456315

Court : Allahabad

Reported in : AIR1979All348

Judge : P.N. Goel, J.

Subject : Contract;Criminal

Decided On : May-08-1979

Acts : Specific Relief Act, 1877 - Sections 42; Code of Criminal Procedure (CrPC) - Sections 145

Case Number : Second Appeal No. 288 of 1970

Appellant : Smt. Dhanwanti

Respondent : Ramai

Advocate for Appellant : R.N. Singh, Adv.

Advocate for Respondent : V.K. Misra, Adv.

Disposition : Appeal dismissed

Excerpt:
Contract - suit for injunction - Section 42 of Specific Relief Act, 1877 - suit for injunction - both Courts below found plaintiff was owner of bamboo clumps - Magistrate not justified in holding appellant in possession on date of passing of preliminary Order - suit property attached - came in ..... 320 of 1963 clearly held that the respondent's ancestor had planted the bamboo clumps and the trees, that the respondent was the owner of the trees etc. He clearly concluded that the respondent was in possession up to the date of the passing of the preliminary order under Section 145 Cr. 9. In the present case both the courts below clearly found that the respondent was the owner of the bamboo clumps and the trees. The maxim possession follows title is clearly applicable to the case of the respondent.

Judgment:

P.N. Goel, J.

1. This is a defendant's appeal against judgment and decree dated 28-11-1969 passed by Civil Judge, Azamgarh in Civil Appeal No. 483 of 1966.

2. The subject-matter of dispute is some bamboo clumps and a few trees. The case of the respondent was that these trees and bamboo clumps were planted by his ancestor, that he was the owner of the said bamboo clumps and trees, that the appellant created trouble in his possession, that there took place proceedings under Section 145, Cr. P. C. between the parties which ended in favour of the appellant, and that, therefore, he was compelled to file a suit for permanent injunction restraining the appellant from interfering with his possession. The respondent claimed decree for permanent injunction only. The appellant contested the suit that she was owner of the bamboo clumps and the trees, that the respondent had no concern with them and that relief claimed was hit by Section 42 of the Specific Relief Act.



3. The Munsif, Azamgarh, who tried original Suit No. 320 of 1963 clearly held that the respondent's ancestor had planted the bamboo clumps and the trees, that the respondent was the owner of the trees etc., that the appellant had no concern with the same, that the respondent ceased to be in possession from the date of the decision of the case under Section 145 Cr. P. C. that the Sub-Divisional Magistrate had not given cogent reasons to come to the conclusion that the appellant's ancestor was in possession of the trees and the bamboo clumps on 27-2-1963, the date of the preliminary order, that he was unable to place reliance on the judgment of the Magistrate on the point of possession of the appellant and that as the respondent was forbidden by order dated 30-9-1963 passed under Section 145 Cr. P. C. case from interfering with the appellant's possession, the respondent was not entitled to the relief of injunction in view of the provisions of Section 42 of the Specific Relief Act.

4. The lower appellate Court agreed with the trial Court on the question of title and possession of the respondent. He clearly concluded that the respondent was in possession up to the date of the passing of the preliminary order under Section 145 Cr. P. C. The lower appellate Court then considered the legal position with regard to the applicability of Section 42 of the Specific Relief Act and came to the conclusion that the suit for permanent injunction only was maintainable. Consequently the lower appellate Court restrained the appellant from interfering with the possession of the respondent.

5. The learned counsel for the appellant firstly urged that as the respondent had not claimed possession in the suit, the mere suit for injunction was not maintainable.

6. As the present suit was filed in October, 1963, the provision of old Specific Relief Act, 1877, will be applicable. Section 42 of the old Act provided that any person entitled to any legal character or to any right as to any property may institute a suit and the court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not file any such suit asking for any further relief. This general provision is subject to a proviso that no court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title omits to do so.



7. In the background of this legal proposition the two cases relied on by the learned counsel for the appellant may be examined.

(1) Lachhimi Nath Pathak v. Bhola Nath Pathak, AIR 1964 All 383. The dispute in this case related to a piece of land upon which there was an Akhara. The plaintiff claimed declaration and injunction on the ground that he was in adverse possession of the land for more than 12 years. There took place proceedings under Section 145 Cr. P. C. between the parties and in the said proceedings the defendants obtained delivery of possession from the Magistrate Court. It was held that the plaintiff had absolutely no adverse proprietary possession of the land. This finding was enough for the dismissal of the plaintiff's suit. It was then added that the reliefs claimed in the plaint were defective because the plaintiff was not in possession of the suit land and the Magistrate had delivered possession to the defendants. It will thus be seen that in this suit it was incumbent upon the plaintiff to claim relief of possession. As he did not claim the relief of possession, he was not entitled to get declaration and injunction in view of the proviso to Section 42 of the Specific Relief Act.

(2) Jugraj Singh v. Jaswant Singh, AIR 1971 SC 761. In this case the vendee of the equity of redemption brought an action for redemption. The Collector ordered the redemption. The sons of the mortgagee filed suit. They did not claim cancellation of the order of the Collector. They did not claim any injunction. They simply claimed a declaration. The main, question involved in the case was whether there was a proper transfer of equity of redemption. This point was decided against the sons of the mortgagee. In these circumstances it was observed. 'It will be noticed that they neither asked for the cancellation of the order of the Collector nor for any injunction, two of the reliefs which they were entitled to ask in the case in addition to the declaration; such a suit would be hit by Section 42 of the Specific Relief Act and we would be quite in a position to deny them the declaration without these specific reliefs'.

8. It will be noticed that both the cases relied on by the learned counsel for the appellant are based on the statutory provisions contained in Section 42 of the Specific Relief Act.



9. In the present case both the courts below clearly found that the respondent was the owner of the bamboo clumps and the trees. The maxim possession follows title is clearly applicable to the case of the respondent. The courts below further found that the Magistrate was not justified in holding the appellant in possession on the date of the preliminary order. What happened is that after the passing of the preliminary order the suit property was attached. Thus it came in custodia legis. Thereafter the Magistrate passed the final order prohibiting the respondent from interfering in the possession of the appellant. The civil courts were not bound by the finding of possession on the date of the passing of the preliminary order recorded by the criminal court. The Civil Courts had a right to independently come to a finding as to which of the parties was actually in possession on the date of the passing of the preliminary order under Section 145 Cr. P. C. This view was expressly laid down in the case of Mukhram v. Puran, 1960 All LJ 145.

10. Another feature of the case is that in pursuance of the final order under Section 145 Cr. P. C. the Magistrate did not deliver possession to the appellant. The civil suit was filed within a fortnight of the passing of the final order by the Magistrate. The subject matter of dispute is bamboo clumps and some trees. At the most the appellant may be committing some acts of trespass by taking away a few bamboo or some timber or some fruits. These acts would not confer possession of possessory right upon the appellant. These acts will become complete as soon as the bamboos or timber or fruits have been taken away. These are just acts of trespass and not acts of possession. The possession would vest throughout in the rightful owner.

11. For all what has been stated above and in view of the clear findings recorded by both the courts, there is no force in the contention that the relief of injunction cannot be granted to the respondent because the respondent has not claimed possession.

12. The learned counsel for the appellant next urged that the lower appellate Court has not recorded a clear finding on the question of possession. This is not correct. Bare perusal of the judgment of the lower appellate Court shows that it concluded that the respondent was in possession of the disputed property as owner till its attachment effected in criminal proceeding under Section 145 Cr. P. C.

13. No other point was urged.

14. For the findings arrived at above, there is no merit in this appeal which is dismissed with costs.

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