1. Both the advocates submitted that the appeal itself may be heard on merits. Accordingly the arguments on merits of the appeal advanced by both the advocates were heard and the appeal is disposed of finally with the consent of both the advocates.
This is a plaintiffs appeal directed against the order dated 31-7-1985 passed by the 12th Additional City Civil Judge, (City Civil Court), Bangalore City, in 0. S. No. 633 of 1984 dismissing 1. A. No. I filed by the plaintiff under Order 39, Rules I and 2, C. P. C. and allowing 1. A. No. 2 filed by the defendant under Order 39, Rule 4, C. P. C. and thereby dissolving the ad interim temporary injunction.
2. R. S. No. 81 of Kethamaranahall village, Rajajinaga III Stage, was an inam land. It was in possession and enjoyment of Archaka Srinivasaiah singh 1931. The said Srinivasaiah had applied to the Special Deputy Commissioner of Inams Abolition for grant of occupancy rights in respect of the said land in his favour. On 4-2-1972, the said Srinivasaiah and his brother Narayana formed several sites in the said land and sold site Nos. 6, 7 and 8 measuring 30' X 100' each to Smt. Sampoornamma and Shri Motilal under registered sale deeds. The said Sampoornamma and Motilal, in turn, sold them to one Boraiah under a registered sale deed dated 6-5-1973. The said Boraiah arranged the said three sites into two sites each measuring 45' X 100' and sold the two sites to Subbappa and Gangadharam under two sale deeds dated 4-4-1974. Subbappa and Gangadharam, in turn, entered into an agreement to sell the two sites with the present plaintiff in 1981 under two separate sale agreements. By the said sale agreements, they agreed to sell the sites with the structures in favour of the plaintiff for Rs. 35,000/- each and received Rs. 30,000/- in respect of each site in advance and put the plaintiff in possession of the two sites. The said sites Nos. 6, 7 and 8 bear the present B. D. A. site Nos. 1850 and 1851. The said Gangadharam and Subbappa have also executed a power of attorney in favour of the plaintiff authorising him to appear on their behalf before the Bangalore Development Authority and the Courts. The Special Deputy Commissioner granted occupancy rights in favour of the said Srinivasaiah in respect of R. S. No. 81 in case No. ALML 2/72-73 by his order dated 24-10-1972. Accordingly the plaintiff's name has been entered as an occupant in the revenue records.
According to the plaintiff, the said R. S. No. 81 was earmarked under re-allotment scheme formulated by the Bangalore Development Authority. By that re-allotment scheme' the sites were to be allotted in favour of the revenue site holders if such persons claimed. The said scheme of re-allotment has been approved by the Bangalore Development Authority in 1960. The reconveyance or re-allotment of sites is not yet completed even in spite of long correspondence with the Bangalore Development Authority.
According to the plaintiff, he was put in possession of the said sites and since then fie has been in enjoyment of the same. He has leased them in favour of one Jayaram in 1982. The said Jayaram has executed a lease deed in his favour. Since then the said Jayaram is in possession of the same as a tenant. The plaintiff has also requested the Bangalore Development Authority to re-allot the sites in his favour.
Notwithstanding the said fact, the defendant is claiming that the site S. No. 1851 has been allotted to him by the Bangalore Development Authority. As the site in question comes within the re-allotment scheme approved by the Bangalore Development Authority, the Bangalore Development Authority could not have made any allotment of the site in question to the defendant. If any such allotment has been made by the Bangalore Development Authority, it is illegal and void and it does not confer any right, title or interest in favour of the defendant. Since then the defendant has been attempting to evict the plaintiff. Hence the plaintiff filed the suit for permanent injunction. He also filed 1. A. No. 1 under Order39, Rules 1 and 2, C. P.C. and obtained a temporary injunction.
3. The defendant filed an application 1. A. No. 2 under Order 39, Rule 4, C. P.C. requesting for vacation of the said temporary injunction on the following grounds :-
R. S. No. 81 was Devadava inam land endowed to Sri Varadaraja Swamy Temple. The Bangalore Development Authority issued a preliminary Notification under Sec. 4(1) of the Land Acquisition Act, on 5-2-1959 and called upon the persons interested in the land to file the objections if they had any. Thereafter the final Notification was issued on 6-10-1960 under Section 6(1) of the Land Acquisition Act. It was published in the Gazette on 6-101960. On account of the acquisition by the Bangalore Development Authority, the occupancy rights said to have been granted in favour of Srinivasaiah became non-existent and they were lost to him and the land stood vested in the Bangalore Development Authority. The land had become vested in the Bangalore Development Authority even before the occupancy rights are alleged to have been granted in favour of Srinivasaiah on 24-1019 72.
Therefore the sales by Srinivasaiah and Narayana regarding site Nos-6, 7 and 8 in favour of Sampoornamma and Motilal, even before the occupancy rights were granted in their favour, are bad at law. Accordingly the sale deed executed by Sampoornanima and Motilal in favour of Boraiah and the sale deeds executed by Boraiah in turn in favour of Subbappa and Gangadharam, are also bad at law. Accordingly the sale agreements executed in favour of the plaintiff also are not valid in law. The plaintiff does not get any valid title under the said agreements of sale. The plaintiff does not get any title to the suit site under the agreement to sell, because no sale deed has been executed in favour of the plaintiff. The so called reallotment scheme spoken to by the plaintiff, does not cover the land in question. Such re-allotment cannot be even thought of by the Bangalore Development Authority unless the Government issued directions to the Bangalore Development Authority. The construction, if any, made on the site by the plaintiff is at his own risk. He has put up some sheds after obtaining temporary injunction in this suit.
On 18-10-1975 site No. 1851 has been allotted to the defendant under lease-cum-sale agreement for consideration. The defendant has been actually put in possession of the above site as per the possession certificate dated 21-10-1975. The Bangalore Development Authority has also issued a certificate to the defendant that the said site has been allotted to the defendant and that the defendant has been put in possession of the site and that the said site has not been reconveyed or reallotted to any one else. The plaintiff, after getting the injunction, has trespassed on the defendant's site and has put up fence and has constructed some shed. He has attempted to create evidence of possession, after obtaining a temporary injunction in this suit. Hence he requested the Court to vacate the injunction.
4. The trial court after consideration of the material placed before it, dissolved the temporary injunction and dismissed I. A. No. 1 filed by the plaintiff and allowed I. A. No. 2 filed by the defendant under Order 39, Rule 4, C. P. C. Hence the appeal by the plaintiff.
5. The index of lands produced by the plaintiff shows that R. S. No. 81 was Devadava inam land granted to Sri Varadaraja Swamy Temple and that the priest. of the said temple is one Srinivasaiah. The record of rights extracts produced by tile plaintiff shows that the name of .Srinivasaiah is entered as an occupant on 6-2-1973, by virtue of an order passed by the Special Deputy Commissioner of Inams Abolition on 24-10-19-12 granting occupancy rights in his favouR.1'll,: order passed by the Special Deputy Commissioner conferring occupancy rights in favour of the plaintiff has been also relied oil by the plaint; ff. Whether the said inani belonged t Sri Veerabhadra Swamy Temple or Sri Varadaraja Swamy Temple, does not make and; difference in the case.
6. On 4-2-1972 Srinivasaiah and his brother Narayana sold site Nos. 6, 7 and 8 measuring 30' X 100' each to Mrs. Sampoornamma and Sri Motilal under registered sale deeds dated 8-4-1972. The sale deeds executed in favour of Mrs. Sampoornamma and Sri Motilal have not ' been produced by the plaintiff. Further it becomes clear that Srinivasaiah and his brother Narayana executed the sale deeds in favour of Smt. Sampoornamma and Sri Motilal even before the occupancy rights were granted in his favour by the Special Deputy Commissioner of hiams Abolition. Thus on his own admission, he executed the said sale deed in favour of Smt. Sampoornamma and Sri Motilal when he had no right, title or interest in the land in question and when he had no right to convey those to them. Accordingly the sale deed executed by Sampoornamma and Motilal in favour of Boraiah on 6-5-1973 would not confer any right, title and interest on Boraiah because Sampoornamma and Motilal themselves did not get any right, title and interest in the said sites. The sale deeds executed by Boraiah in favour of Subbappa and Gangadharam on 44-1974 also do not confer any title on them because Boraiah himself did not technically get any right, title and interest. The agreements to sell executed in favour of the plaintiff by Subbappa and Gangadharam do not confer any title on the plaintiff. His assertion that he was put in possession of the site on the date of agreement to sell, is not credible.
7. The defendant has produced the Gazette Notification showing that the preliminary Notification proposing the acquisition of R. S. No. 81 was issued. He has also produced the Gazette Notification of the year 1960 which was published in the Gazette on 6-10-1960. It is a Notification issued under Section 6 of the Land Acquisition Act. Thus it becomes clear that R. S. No. 81 in question was acquired by the Bangalore Development Authority as long back as 1960 itself. Therefore when the land became vested in the Bangalore Development Authority on account of the acquisition as long back as 1960, the subsequent conferment of occupancy rights by the Special Deputy Commissioner of Inams in favour of Srinivasaiah in 1972 would be absolutely meaningless and it would not have any effect in the eye of law at all.
8. The sale deeds executed by Srinivasaiah and Narayana even before the occupancy rights were conferred on Srinivasaiah and after R. S. No. 81 was acquired by the Bangalore Development Authority, would not have any effect in law at all. Thus the subsequent sale deeds and the agreements to sell executed in favour of the plaintiff also are ineffective and they do not confer any right, title and interest on the plaintiff.
9. The plaintiff's contention that R. S. No. 81 had been earmarked for granting sites to the revenue site holders and in order to allot them to the revenue site holders, is not supported by any material on record. On the other hand, the letter issued by the Bangalore Development Authority to the defendant says that no reconveyance of this site has been effected in favour of any one.
10. It was contended by the learned counsel Shri Swamy that although preliminary and final Notifications might have been issued regarding R. S. No. 81, it did not mean that the persons who were in possession of the sites, were dispossessed.
11. When the final Notification has been issued tinder Section 6 of the Land Acquisition Act and when the Notification shows that the possession was taken over, the argument advanced by the learned counsel Shri Swamy only merits to be rejected.
12. The plaintiff himself admits that original site Nos. 6, 7 and 8 have been now numbered by the Bangalore Development Authority as site Nos. 1850 and 1851. This is also a circumstance to show that the Bangalore Development Authority has taken over possession of the site in question.
13. The boundary description given by the plaintiff shows that to the east of the. suit schedule land, the building of one Ranganath is situate i.e. site Nos. 1852 and 1853. The said sites have been allotted to Ranganath by the Bangalore Development Authority. This is also a circumstance to show that the possession of the said sites has been taken over by the Bangalore Development Authority and handed over to Ranganath. This is also a circumstance to show that the defendant who is an allottee of the said site had been put in possession of the site in question.
14. Thus the plaintiffs assertion that since the very beginning his predecessors-in-title and himself have been in possession of the property since the last more than half a century, is devoid of any substance. Thus the conclusion of the trial court that the plaintiff is a trespasser, needs no interference. The material on record prima facie shows that the plaintiff is a trespasser and he is in wrongful possession of the suit site.
15. As against these, the defendant has produced his own affidavit and the preliminary and the final Notifications issued under the Land Acquisition Act and the allotment order and the possession certificate issued by the Bangalore Development Authority in his favour. The said possession certificate is dated 21-10-1975. The said documentary evidence and the affidavit of the defendant would show that the defendant had been put in possession of the suit site at least in October 1975 and it is only thereafter the plaintiff if at all he has entered into possession, must have entered into possession of the suit site. The defendant's assertion that the plaintiff has put up a shed in the suit site after obtaining the temporary injunction in the present suit, is rather more probable.
16. Thus the material on record prima facie shows that the plaintiff is a trespasser who has trespassed into the suit site either just some few days before the institution of the suit or has entered into possession of the site by virtue of the temporary injunction granted to him by the court.
17. The learned counsel Shri Swamy urged that the possession is nine points in law and even if the plaintiff is assumed to be a trespasser in possession, he is entitled to get die temporary injunction pending the suit. He relied on Order 39 Rule I (c) C. P. C. It reads as : -
'that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute ,in die suit .......'
According to him, these words have been incorporated by Section 86(l) of Act No. 104 of 1976 amending the Civil Procedure Code. He tried to interpret the said words by stating that the said amendment modified the previous principle of law. According to him, the insertion of clause (c) by the amendment Act enabled even the trespasser in possession to obtain temporary injunction even as against a true owner of the property.
18. In AIR Manual Civil Procedure Code, Volume No. 5, 4th Edition, on page 670, it is stated as : -
'Rule I of Order XXXIX is primarily concerned with the preservation of the property in dispute till the legal rights are ascertained. On a literal reading of the rule, the situation where the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit is not covered by the rule. The rule is being amended accordingly.'
The learned author Shri S. C. Sarkar in his Law of Civil Procedure, 6th Edition, 1979, has stated on page 970 as : - -
'The amendment in rule I has been made to cover the situation where the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit.'
19. Originally rules 1(a) and 1(b) did not cover the case of defendant threatening to dispossess the plaintiff or otherwise causing injury to the plaintiff in relation to the property in dispute in the suit. Therefore with a view to enlarge the scope of rule 1, rule 1(c) has been inserted by the Amendment Act. Therefore the insertion of sub-clause (c) does not mean that the Legislature intended that a trespasser in possession may be granted temporary injunction even as against the true owner. There are the said argument advanced by the learned counsel Shri Swamy in this connection merits to be rejected.
20. In N. D. Basu's, Law of Injunctions, 1965 Edition, on page 140, it is stated as
'A person in wrongful possession of the property is not entitled to be *prosecuted against the lawful owner by an order of injunction.' (*the word 'prosecuted' ought to be 'protected' in view of : AIR1962Mad149 ).
The said author has relied on Alagi Alamelu v. Ponniah Mudaliar, : AIR1962Mad149 ; and Kundan Mal v. Thikana ILR . Again on page 489, the learned author has stated as : -
'A person in long anterior and peaceable possession at the time of the threat of dispossession is, until the contrary is shown, entitled to maintain his possession against all but the true owner. Periasami v. Anandayi, 80 Ind Cas 82 : (AIR 1924 Mad 722); Narayan Rao V. Dharmachar (1903) ILR 26, Mad 514; Ismail Ariff v. Mahomed (1893) 20 Ind App W; Narayanappa v. Hanumanthappa 1931 Mad. WN 487 : AIR1932Mad32 ; Satish Chandra v. Madan Mohan Jati : AIR1931Cal483 (2); Ram Ranjan v. Secretary of State : AIR1931Cal430 . ft a suit for declaration of title to land and for an injunction restraining defendant from disturbing possession, it was found that neither plaintiff nor defendant has established title but the plaintiff 'was in possession on the date of suit for 11 years previously and that the defendant was never in possession. Held that the plaintiff was entitled to be maintained in possession. Periasami v. Anandayi 80 Ind Cas 82 : AIR 4924 Mad 722. In order to succeed on the strength of long possession, the plaintiff must show that the defendant is a trespasser. Central Karkend Coal v. Kartic Rewani 34 Ind Cas 616 : (AIR 1916 Pat 381).'
In Nelson's Law of Injunctions, Second Edition, on page 157, it is stated as -. -
'Trespasser cannot seek injunction against State to protect his possession : - Trespasser has no equities in his favour nor is the' owner of the property trespassed under any legal obligation. An owner has therefore every right to enter upon his property and restrain the trespasser from perpetuating his illegal occupation of the property. It is not necessary for him to take recourse to legal proceedings in order to vindicate his rights of ownership and possession in respect of his property which has been taken into possession by another without any right or title. The possession* may be of course different where the trespasser has acquired ownership rights in the property by virtue of his long possession. That Government is not bound to honor the possession of a person over its property acquired by the latter without any right or title till it has taken recourse to eject him through legal proceedings is further borne out from Section 9 of the Specific Relief Act which makes an exception for a suit under the said Section against the Government. Therefore no decree for prohibitory injunction can be passed in favour of the trespasser restraining the State from interfering with his possession. (vide State of Jammu and Kashrriir v. Ghulam Rasool AIR 1979 J & K 53).' (underlining is mine). (*The word 'possession' ought to be position'). Again on pages 358 and 359, the learned author has stated as : -
'A person in wrongful possession is not entitled to be protected against the lawful by an order of injunction directed against him. But the contention of the learned counsel for the respondents is that inasmuch as in effect the finding is that the first defendant had not been in possession of the properties within 12 years of the institution of the suit by the respondent and she would, therefore, not have succeeded if she had instituted suit for recovery of possession, she should be regarded as a person not having a subsisting title and therefore not lawful owner. On that basis the learned counsel contends that the lower Appellate Court was right in granting the injunction.
'Once the Court has found that the plaintiffs possession is wrongful, it immediately followed that such possession is not entitled to protection by an injunction, because such an order will be only assisting the plaintiffs in their wrongful possession. No Court ,can by its own order help a party who is found to be in wrongful possession as against the lawful owner. The fact that if the lawful owner were to institute a suit, he might possibly fail on the ground that he was not in possession within 12 years of suit, could make no difference and that cannot be a proper justification for the issue of an injunction virtually maintaining or advancing the wrongful act of the plaintiff. (vide Alagi Alamelu Achi v. Ponniah Mudaliar : AIR1962Mad149 ). When there is a finding recorded in a regular suit which has been affirmed in second appeal by the Court to the effect that the plaintiffs are not in lawful possession of the property and it is not contended in the second round of litigation that the earlier litigation is a nullity for want of jurisdiction, no Court will be justified in granting .a temporary injunction on an interlocutor application. The question of balance of convenience or equity does not arise when there is as stated earlier a concluded finding, as between the parties that the plaintiffs arc not in lawful possession. If the plaintiffs are not in lawful possession, they cannot seek an order of interim injunction. (vide City Municipal Council, Shimoga v. Laxminarayana Tiwari (1977) 2 Kant U 489).' (Underlining is mine).
In the Law of Injunctions by Kerr on pages 116 to 118, he had summarised the principles upon which the Court acts in restraining trespass by individuals, as distinguished from companies and corporate bodies having compulsory powers to enter land in certain cases as : -
'The jurisdiction of the Court by injunction in cases of trespass is in aid of the legal right. The Court interferes on the assumption that the party who makes the application has the right which he - asserts, but needs the interference of the Court for the protection of the property from irreparable damage pending, the trial of the right. If the right at law is clear and the breach of that tight is clear, and serious damage is likely to arise to the plaintiff if 'he defendant is all6wed to proceed with what he is doing or threatens to do, or has given notice of doing, an injunction will be granted pending the trial of the right. If the case is. in the opinion of the Court, free from doubt the Court may interfere at once without putting the plaintiff to establish his legal right, 'and grant a perpetual injunction. But, if the right at law is not clear, or the breach is doubtful, and no irreparable injury can arise to the plaintiff pending the trial of the right, the case resolves itself into a question of comparative convenience and inconvenience, whether the defendant will be more damnified by the injunction being granted, or the plaintiff by its being withheld. An act of trespass, not in itself amounting to serious damage, may, from its continuance, amount in the opinion of the Court to trespass attended by irreparable damage. There are cases where great drainage may be done to property, though the actual damage done by the trespass is nothing. If the act complained of consists in the erection of works or buildings on the land of the plaintiff, an injunction may be had as long as the works or buildings are in an incomplete state, but, if the works or buildings have been completed, the Court will not in general interfere, but will leave the plaintiff to his remedy by damages. If, however, the conduct of the defendant has been fraudulent, vexatious or oppressive and the trespass is of so serious a nature that the parties cannot be placed in the position in which they were before the acts of trespass were committed without the interference of the Court, the Court will interpose, even though that act complained of has been completed, Thus in Powell v. Aiken (1858) 4 K and J 343, the defendants were restrained from continuing to use air courses and roads, which had been secretly and fraudulently made by the persons through whom they claimed title, through the minerals of the plaintiff. So also in Bowser v. Maclean (1860) 2 De. Ct. F. and J, 415, the lessee of minerals in a copyhold manor was restrained, at the suit of copyholder, from surreptitiously using a tramway through the sub-soil of the plaintiff's land, for the purpose of carrying along with it coals dug beyond the limits of the manor.' The learned author has further on page 373 has stated as : -
'An injunction is a proper relief in an action to trespass but to maintain an action on trespass the plaintiff must be in possession of the land in dispute. Where what is complained of is a trespass on his possession rather than act of dispossession, the plaintiff's proper remedy is an injunction. But before a person who is not the owner of land can prevent another person from using the land to the same extent as himself, he must establish a right by acts of exclusive possession of a very definite nature. It has been held in Framji Cursetji v. Gokuldas Madhowji ((1892) ILR 16 Bom 338), that a miscellaneous user cannot create any title by adverse possession. That appears to establish the principle that a miscellaneous user of keeping fire-wood or bricks till they are used up is not possession at all. If acts of this sort constituted possession twelve years continuous user would establish adverse possession. In a country like India where people have need of land for their miscellaneous household requirement, and when such user is not objected to by any one, it would be against public policy to rule that a user of the sort prevents a neighbour from enjoying similar user. When there is a repeated violation of a man's property or there is a continuing trespass by encroachment, injunction is the proper relief as also to restrain erection of a cornice or a roof on a wall in a house as to project over the neighbour's land. The said author has further stated on page 374 as :-
'The tendency of the modern decisions is to enlarge, rather than to narrow, the class of cases in which a court of equity will interfere to prevent P. threatened trespass.' Therefore the said discussion by the learned authors Shri Basu and Shri Nelson makes it absolutely clear that a trespasser in possession, is not entitled to a temporary injunction as against a true owner. The principle underlying the said conclusion is that the relief of m1unction being a relief in equity, the Court cannot aid a person who himself is guilty of doing a wrongful thing-
21. The learned counsel Shri Swamy contended that the defendant had acquiesced in the plaintiff's possession and therefore by virtue of the theory of acquiescence, the plaintiff is entitled to get an injunction. It has been laid down by the learned author Shri Nelson in his Law of Injunctions, Second Edition, on page 361 as:-
'It has already appeared that the doctrine of acquiescence as a bar to relief does not apply where the party, committing the wrong knows that he is doing that which he has no right to do. In relation to trespass therefore the doctrine applies only to those cases where the trespasser is acting under a mistaken belief as to his own rights and not where he deliberately infringes the rights of another. 'If', said Lord Cranworth L C., in Ramsden v. Dyson (1866) LR 1 HL 129 'a stranger begins to build on my land supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a Court of Equity will not allow me afterwards to assert my title to the land 'on which he had, expended money on the supposition that the land was his own...... If a stranger builds on my land knowing it to be mine, there is no principle of equity which would prevent my claiming the land with the benefit of all the expenditure made on it. There would be nothing in my conduct, active or passive, making it inequitable in me to assert my legal rights'. The doctrine of acquiescence does not arise where knowledge, of the title exists, where the person entitled does nothing and allows the trespass to go on, but the trespasser knows the title and facts as well as the person entitled.'
In N. D. Basu's Law of Injunctions, 1965 Edition, on page 94, it is stated as : -
'Acquiescence: - An injunction is not a matter of right and will not be issued when upon a broad consideration of the situation of the parties, good conscience does not require it. A Court of Equity frequently refuses an injunction, where it acknowledges a right, when the conduct of the party complaining has led to the state of things which occasions its application. Acquiescence is an important factor in determining equitable rights and remedies, in obedience to the maxims: He who seeks equity, must do equity, and He who comes into equity must come with clean hands. Even when it does not amount to a true estoppel upon rights of property or of contract, it may operate in analogy to estoppel - may produce a quasi estoppel upon the rights of remedy.
Acquiescence in the wrongful conduct of another by which one's, rights are invaded may often operate, upon principles of and in analogy to estoppel, to preclude the injured party from obtaining many distinctively equitable remedies to which otherwise he is entitled. This form of quasi estoppel does not cut off the party's title, nor his remedy at law; it simply bars his right to equitable relief and leaves him to his legal action alone. In order that this effect may be produced, 'the acquiescence must be with knowledge of wrongful acts themselves, and of their injurious consequences; it must be voluntary, not the result of accident, nor of causes rendering it a physical, legal or moral necessity, and it must last for an unreasonable length of time, so that it will be inequitable even to the wrong doer to enforce the particular remedies of equity against him, after he has been suffered to go on unmolested, and his conduct apparently acquiesced in. It follows that what will amount to a sufficient acquiescence in any particular case must largely depend upon its own special circumstances. The equitable remedy to which this quasi estoppel by acquiescence most frequently applies is that of injunction preliminary or final, when sought by a proprietor to restrain a defendant from interference with easements; from committing nuisances, from trespasses, or other like acts in derogation of the Plaintiffs proprietary rights. This effect of delay is subject to the important limitation that it is properly confined to claims for purely equitable remedies to which the party has no legal right. Where an injunction is asked in support of strict legal right, the party is entitled to it if his legal right is established; mere delay and acquiescence will not, therefore, defeat the remedy, unless it has continued so long as to defeat the right itself. The same rule applies, and for the same reasons, to a party seeking purely equitable relief against frau such as the surrender or cancellation of securities, the annulling of a transaction, and the like, Upon obtaining knowledge of the facts, he should commence proceedings for relief as soon as reasonably possible. Acquiescence consisting of unnecessary delay after such acknowledgment will defeat equitable relief'
The learned author Shri Basu has referred to Willmott v. Barber (18W) 15 CIL D 96: 43 LT 95. It reads as: -
'It has been said that acquiescence which deprives a man of his legal right must amount to fraud, and in my view that is an abbreviated statement of a very true proposition. A man is not to be deprived of his legal rights unless he has acted in such a way as could make it fraudulent for him to set up these rights. What ,then are the elements or requisites necessary to constitute fraud of that description? In the first place the plaintiff must have made a mistake as to his legal right. Secondly, the plaintiff must have expended some money or must have done some act (not necessarily upon the defendants land) on the faith of his mistaken belief. Thirdly the defendant, the possessor of the legal right, must have known 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 founded upon conduct with a knowledge of your legal right. Fourthly, the defendant the possessor of the legal right, must know of the plaintiff s mistaken belief of his right. 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. Where all these elements exist, there is fraud of such a nature as will entitle the Court to restrain the possessor of the legal right from exercising it, but in my judgment, nothing short of this will do.'
The learned author Shri Basu has further stated on page 95 as: --
'So where a defendant relies on acquiescence the onus would be on him to show (a) that they had been mistaken as to their legal rights, (b) that they had expended some money or done some act on the faith or their mistaken belief, (c) that the plaintiff knew of the existence of his own right which was inconsistent with the right claimed by the defendants, (d) that the plaintiff knew of the defendants7 mistaken belief in his right and (e) that the plaintiff must have encouraged the defendants in their expenditure of money directly or by abstaining from asserting his legal rights. So acquiescence is not a question of fact but of legal inference from facts found.'
The learned author Shri Basu on page 97 has stated as : -
'... The rule that a person's right to an injunction may be barred says Mr. R, C. Joyce 'by laches includes those cases where the complainant has stood by and permitted the defendant to expend large sums of money in the exercise of supposed or asserted right. In such a case, it would be inequitable to grant the injunction and the complainant will be left to his legal remedy'. So where a person stands by and silently sees a public railroad constructed upon his land, it is too late for him, after the road is completed, or large sums have been expended on the faith of his apparent acquiescence, to seek by injunction to deny to the railroad company of the right to use his property.'
Thus in order to claim a right by acquiescence a person must show that he had been mistaken as to his legal right and that he had expended some money or done some act on the faith or his mistaken belief, that the other side knew of the existence of his own right which was inconsistent with the right claimed by him and that the plaintiff knew of the persons mistaken belief in his right and that the plaintiff must have encouraged the defendants in their expenditure of money directly or by abstaining from asserting his legal right. In this case, it does not appear to be the case of the plaintiff that he had any mistaken impression about the legal right or that he expended money on the faith of the said mistaken belief. It is not his case that the defendant in this case knew of the alleged trespass being committed on his property. It is not his case that the defendant encouraged him in expending money over the construction of the sheds directly or by abstaining from asserting his legal right. As already stated above, the plaintiff must have come into possession of the property illegally and wrongfully just some little time before the institution of the suit or ho must have come into possession of the property on the strength of the temporary injunction granted to him by the Court. There ' is no material to show that the shed said to be constructed in the suit site was put by the plaintiff to the knowledge of the defendant. Even if tie has constructed any small shed, he has done so at his own risk and without the knowledge of the defendant. Therefore the argument of the learned counsel Shri Swamy that on the strength of the doctrine of acquiescence the plaintiff is entitled to injunction cannot be accepted. After all even according to the plaintiff, he has put up some two small sheds and has spent some negligible money over the construction of those sheds. The expenditure of such negligible sum will not entitled him in law to the benefit of the equitable relief of injunction.
22. The learned counsel Shri Swamy then urged that on account of long possession of the plaintiff and his predecessors, the defendant cannot be said to be the lawful owner, On the admission of the plaintiff himself, he has come into possession of the property only under the agreement to sell executed in 1981. There is no satisfactory material let in to show that his predecessors also were in possession of the property at any time. The acquisition of R.S. No. 81 by the. Bangalore Development Authority in 1960 would show that even the predecessors were in possession of the property, they were dispossessed by the Bangalore Development Authority on account of acquisition. Thus it cannot be said that the defendant has lost his ownership right over the suit property. If a true owner of the property stands by and allows another person to be in possession and enjoyment of the property for more than 12 years to his knowledge, his title would come to an end and he will cease to be a lawful owner of the property. In such cases,. the case of a trespasser on account of being in possession for more than 12 years for an injunctive relief may need some consideration. But even in such cases, the Court should not aid a person in wrongful possession only on the ground that the true owner has lost his title, because the other remedy for seeking declaration that he has become the owner by adverse possession is available to him.
23. This Court in Mallayya v. Puttappa. : AIR1976Kant192 has stated on p. 373: (at p. 195 of AIR) as : -
'It is well settled that no person in possession of land can sue for injunction against a true owner unless fie is able to maintain that either under an agreement or under a statute he is entitled to the 'said relief even as against him. If he is not able to rely on any such agreement or statute his possession would be wrongful. No Court will by its order help a party who is found to be in wrongful possession as against the lawful owner.'
It was a case where the defendant claimed to be a tenant and thus in possession of the property as a tenant. Section 133 of the Karnataka Land Reforms Act has taken away the jurisdiction of the civil court to decide the question whether a land is an agricultural land or not and whether a person claiming to be in possession is or is not a tenant of the suit land from prior to 1-3-197174. Where in such cases the plaintiff claiming1to be a tenant of the land in question while admitting that the defendant is the owner prays for an injunction restraining the defendant from interfering with his possession, I am of the opinion that the question whether the plaintiff is a tenant or not would arise for consideration, since the suit would have inevitably to be dismissed if a finding is not given in the affirmative on the said question as admittedly the fdefendant is the owner of the property. Therefore Section 133 of the Karnataka Land Reforms Act demands that the tenancy plea raised must be referred to the Tribunal. But, however, a sound principle has been laid down by this Court that the Court would not grant the equitable relief of injunction in favour of a trespasser as against the true owner.
24. A similar principle has been laid down in Alagi Alamelu Achi v. Ponniah Mudaliar : AIR1962Mad149 . It has been stated on p. 150 as:-
'I am wholly unable to accept this contention. The question in the present suit is not whether the first defendant has a subsisting title. Once the lower appellate court found that the plaintiffs' possession is wrongful, it immediately followed that such possession is not entitled to protection by an injunction, because such an order will be only assisting the plaintiffs in their wrongful possession. No court can by its own order help a party who is found to be in wrongful possession as against the lawful owner. The fact that if the lawful owner were to institute a suit, he might possibly fail on the ground that he was not in possession within 12 years of suit, could make no difference and that cannot, in my opinion, be a proper justification for the issue of an injunction virtually maintaining or advancing the wrongful act of the plaintiffs.'
This Court again has ruled in Lakshminarasimhiah v. Yalakki Gowda, AIR 1965 Mys 310 on p. 311 as - -
'(7) The granting or refusing of injunctions is a matter resting in the sound discretion with the trial court and consequently no injunction will be granted whenever it will operate oppressively, or inequitably, or contrary to the real justice of the case. In exercising the discretionary power, the courts should be guided by the following guiding principles.
There is no power which is more delicate, which requires greater caution, deliberation, and sound discretion, or is more dangerous in a doubtful case, than the issuing an injunction. It is the strong arm of equity, that never ought to be extended unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. The right must be clear, the injury impending or threatened, so as to be averted only by the protecting preventive process of injunction. But that will not be awarded in doubtful cases, or new ones not coming within the well-established principles; for if it issues erroneously. an irreparable injury is inflicted for which there can be no redress, it being the act of a court, not of the party who prays for it. It will be refused till the courts are satisfied that the case before them is of a right about to be destroyed, irreparably injured, or great and lasting injury about to be done by an illegal act. In such a case the court owes it to its suitors and its own principles to administer the only remedy which the law allows to prevent the commission of such act. The discretionary power must be exercised with extreme caution and applied only in very clear cases; otherwise, instead- of becoming an instrument to promote the public as well as private welfare, it may become a means of an extensive and perhaps an irreparable in-justice.'
It has been further stated on page 312 as
'Besides the above, there are certain equitable principles also which govern-the Courts in granting or withholding of the relief of injunction. One of the main considerations is the fairness or good conduct of the party invoking the aid of the Court. The Court denies the relief to a suitor who is himself guilty of misconduct in respect of the matter in controversy. It is u well-known maxim of equity that 'He who comes into equity must come with clean hands,' or as otherwise expressed, 'He that hath committed inequity shall not have equity'. The wrong conduct of the plaintiff in the particular matter or transaction with respect to which he seeks injunctive relief precludes him from obtaining such relief. Injunction will not be granted in aid of a possession secured by stratagem of trick.'
In the head note, it has been stated in the said case as : -
'(2) even granting that A had managed to dispossess B, since the means by which he was alleged to have obtained possession were illegal, he was not entitled to the aid of the Court to protect his possession. What the appellate Court did by granting the injunction, was to lend the aid of the Court to protect possession secured in proceedings continued without jurisdiction. A had not come to Court with clean hands, and Court of equity would not aid such a person.'
25. The learned counsel Shri Swamy placed before me Karthiyayani Amma v. Govindan, : AIR1980Ker224 it is stated as : -
'Even assuming that the plaintiffs have failed to prove title to the property are they not entitled to an injunction on the strength of their possession?
The question which falls to be decided in the case is whether a person in possession without lawful title can sustain an action for injunction against a person who has lawful or better title. This question was considered by Raman Nayar, J., as he then was in Vasudeva Kurup v. Ammini Amma, 1964 Ker LT 468. It was held that a person in possession could obtain protection against all invaders of his enjoyment even if the invader be the true owneR.1 had occasion to consider this question in S.A. No. 721 of 1978-B and I observed: I am in respectful agreement with the proposition of law laid down in 1964 Ker LT 468. To hold otherwise', would be to allow owners asserting right and title over the property to take the law' into their own hands and interfere with the peaceable possession of persons though trespassers.'
The above judgment of Raman Nayar J. was considered by a Division Bench of this Court in Narayanan v. Mathai : AIR1966Ker179 which expressed no opinion on it, but said :
'The point decided in 1964 Ker LT 468 has no direct bearing on the question to be decided in the second appeal except that possessory title is recognised as the foundation of a claim for maintaining one's possession. (para 18). Raman Nayar, J., again spoke in : AIR1966Ker286 (N.S.S. Case) reiterating what he had said earlier. Said the learned Judge : 'And the several High Courts are at one in holding that a person in possession, even if he be a mere trespasser cam on the strength of his possessory title, get back possession from any person, (except the true owner) who dispossesses him, if he brings a suit within the 12 years limited by law if he brings it within 6 months under Section 9 of the Specific Relief Act he can recover possession even from the true owner'.'
It has been further stated in the said case in para 7 on page 227 as:
'The ultimate position, therefore, reduces itself to this : Can a person in possession without title sustain a suit for injunction against the rightful owner if he proves possession? Yes. In this case, plaintiff is found to be in possession. On the finding, he should be granted the injunction prayed for. A person in possession can be evicted only in due process of law. Even the rightful owner cannot eject him with force. If he cannot be evicted with force, he continues to be in possession by everyone including the rightful owneR.1f the rightful owner threatens his peaceful possession, he can approach Courts of Law and pray for the equitable relief of injunction to protect his possession.'
The learned Judge of the Kerala High Court has referred t6 the decision in Nair Service Society Ltd., v. K. C. Alexander, : 3SCR163 . In M.Kallappa Setty v. M. V. Lakshminarayana Rao, : AIR1972SC2299 , the Supreme Court in para 5 has stated as
'The plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property Once it, is accepted, as the trial Court and the first appellate court have done, that the plaintiff was in possession of the property ever since 1947 then his possession has to be protected as against interference by someone who is, not proved to have a better title than himself of the suit property. On the findings arrived at by the fact finding Courts as regards possession, the plaintiff was entitled .to the second relief asked for by him 'even if he had failed to prove his title satisfactorily.' (underlining is mine).
The learned Judge of the Kerala High Court referring to the observations made by the Supreme Court has stated as : -
'Basing on this ostentation, it was contended that the Supreme Court should be deemed to have decided that a person in possession without title could successfully resist interference of the possession only from persons who had no better title, suggesting thereby that a person with better title could interfere with the possession of such a person. With great respect, the above sentences cannot be read to formulate such a position of law. There the Supreme Court was considering the dispute between two persons who put forward rival titles, but one of them alone proved possessory title. There the defendant's title was not considered by the trial Court, the Appellate Court or the High Court, The High Court dismissed the suit holding that the plaintiff did not satisfactorily prove his title, disregarding the concurrent findings of possession by the Courts of fact. It was in this context that the above observations were made by the High Court. It is not permissible nor is it proper to read a judgment as a statute. Sentences occurring in a judgment have to be read in the proper context. It may not be correct to say that casual observation in a Supreme Court judgment or even obiter dicta unconnected with the facts of the case under discussion and not laying down any proposition of law have binding force as law declared by the Supreme Court under Article 141 if the Constitution.'
The learned Judge of the Kerala High Court in para 5 has stated as : -
'The dictum so laid down fell to be considered by two Division Bench's of this Court in Alavi v. Mohammedkutty Haji : AIR1974Ker100 and Narayana Menon v. KallandL : AIR1974Ker100 Nambiyar J., as he then was, referring to : AIR1972SC2299 observed as follows :-
'We find nothing in these decisions to support the broad principle contended for by the counsel for the respondents that a person in possession even if it be wrongful, is not entitled to an injunction against the true owner till his possession is lawfully terminated by due process of law.' Both the Division Benches approved the principles laid down in 1964 Ker LT 468 though in those cases the Division Bench was considering the propriety of a reference under Sec. 125(3) of the Kerala Land Reforms Act in a suit for injunction.'
26. It is stated in M. Kallappa Setty v. M. V. Lakshminarayana Rao, : AIR1972SC2299 as: -
'The plaintiff can on the strength of his persons who have no better title than himself to the suit property. Once it is accepted, as the trial court and the first appellate court have done, that the plaintiff was in possession of the property ever since 1947 then his possession has to be protected as against interference by some one who is not proved to have a better title than himself to the suit property. On the findings arrived at by the fact finding courts as regards possession, the plaintiff was entitled to the second relief asked for by him even if he had failed to prove his title satisfactorily.' (underlining is mine).
Thus the principle laid down in the said Supreme Court case is absolutely clear on the point that the plaintiff s possession had to be protected against interference by some one, who was not proved to have a better title than himself to the suit property. Therefore the only thing that can be inferred from this principle is that if the plaintiff's possession is unlawful or wrongful, he cannot be extended the equitable relief of injunction as against the true owner.
27. It has been laid down in Nair Service Society Ltd. v. K. C. Alexander, : 3SCR163 as:-
'When, however, the period of 6 months has passed questions of title can be raised by the defendant and if he does so the plaintiff must establish a better title or fail. In other words, the right is only restricted to possession only in a suit under Section 9 of the Specific Relief Act but that does not bar a suit on prior possession within 12 years and title need not be proved unless the defendant can prove one. The present amended articles 64 and 65 of the Limitation Act bring out this difference. Article 64 enables a suit within 12 years from dispossession, for possession of immovable property based on possession and not on title, when the plaintiff while in possession of the property has beer, dispossessed. Article 65 is for possession of in, movable property or any interest therein based on title. The amendment is not remedial but declaratory of the law.'
The Supreme Court has further said in the said case on page 1165 as: -
'A person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the/rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title. In the event of disturbance of possession by a third party and not the owner, the plaintiff can maintain a possessory suit under the provisions of Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised.' (underlining is mine).
28. Thus the principle laid down in the said Supreme Court case makes it absolutely clear that a person having a possessory title can maintain a suit for possession against another person who has no better title than himself. It also makes it clear that such a possessory right will not be available as against a true owner of the property.
29. Therefore in view of the principles laid down by this Court and by the Madras High Court and by the Supreme Court, I cannot persuade myself to fall in line with the view taken by the Kerala High Court in Karthiyayani Amma v. Govindan, : AIR1980Ker224 .
30. Shri Swamy then relied on Sheik Khalilur Raheman v. Estate Officer, Bhubaneswar, : AIR1977Ori201 . It reads as:-
'The Act has been enacted to provide the procedure which must be complied with before eviction is ordered and enforced. Even rank trespasser is entitled to maintain his possession unless dispossessed by due course of law. If the person is in possession of land even the rightful owner cannot take law in his own hands and throw him out by force. The rightful owner has to sue for recovery of possession. It follows from these principles that the petitioner being in present possession of the Government premises can maintain the present application, even though strictly speaking he is not an absolute owner of the property.'
The said principle came to be laid down while considering the writ jurisdiction of the High Court. It was a case where the writ petitioner was in unauthorised occupation of the Government building. The provisions of the Orissa Public Premises (Eviction of Unauthorised Occupants) Act came up for consideration in the said case. The Orissa High Court held that the said Act does require that a particular procedure should be followed by the authority before the person in possession is dispossessed. It is in that context that the Orissa High Court laid down that a trespasser is entitled to maintain possession unless dispossessed by due course of law. Therefore the decision of the Orissa High Court will not come to the rescue of the plaintiff in the present case.
31. The above discussion would go to show that the plaintiff is a rank trespasser and is thus in wrongful possession of the property. The defendant who has been allotted the site in question had been put in possession of the property. Therefore, the defendant in my opinion, has got a better title than that of the plaintiff who has none at all. The learned counsel. Shri Swamy for the plaintiff submitted before me that the site had been allotted to the defendant under lease-cum-sale agreement and thus it cannot be said that the defendant was the owner of the property. It is a matter of common knowledge that the Bangalore Development Authority initially grants the site under the leas--cum-sale agreement and after 10 years executes the sale deed in favour of the allottee. Therefore the defendant cannot be said to be a person without right, title and interest Therefore the said argument advanced by the learned counsel Shri Swamy is rejected.
32. Thus, in the result, the court below was justified in dissolving the temporary injunction and in dismissing I.A. No. I filed by the plaintiff under Order 39, Rules 1 and 2, C.P.C. and in allowing I.A. No. 2 filed by the defendant under Order 39, Rule 4, C.P.C. Thus the appeal is dismissed.
33. No costs in this appeal.
34. Appeal dismissed.