A.B. Rohatgi, J.
(1) This Letters Patent Appeal arises out of a suit for permanent injunction brought by Sajjadaushin and mutawalli of Dargah Hazrat Sheikh Mohd. Chisti against the Union of India in 1959. The plaintiff's case was that there is a graveyard, well and trees attached to the dargah with an area of about 806/1/3 sq .yards which is a part of khasra No. 417. It was claimed by the plaintiff that be and his predecessor in interest have been in possession of the property for the last 300 years. The plaint recites about an old litigation. On November 5, 1938, the Governor-General-in Council brought a suit (Suit No. 463 of 1938) forpossessionofSbighas-8 bids was of this property against the plaintiff's grand father, Pir Karar Hussain.
(2) In that suit a decree was passed by consent of parties on March 1 1. 1939, which provided that a perpetual lease free of rent would be granted in favor of sajjadaiiashin & mutwali wilh respect to the dargah, mosque, graveyard and well. As regards the remainder of the land it was agreed that possession will be taken by the Governor General in Council. It is not disputed that th
(3) In the suit of 1959, the plaintiff complained that inspire of the nonexecution of the decree dated March Ii, 1939, the Land and Development Officer of the defendant, Union of India, had given notices to his tenants requiring them to vacate the premises occupied by them within the disputed area within a week. These notices were challenged by the plaintiff on the basis of his title to land. An injunction was prayed for to restrain the defendant from interfering with the possession othe plaintiff. The Union of India contested the suit. They denied the claim of the plaintiff to the land in question and asserted that the non-execution of the decree did of effect their title to the land.
(4) The trial court framed the following issues :
1.Is the suit not properly valued for purposes of court fee and jurisdiction 2. Whether the land in suit is Wakf in the name of Durgab Hazrat Sheikh Mohd. Chisti and a mosque and graveyard exist there 3. Whether the plaintiff has become owner of the suit property by adverse possession as alleged in paras 6 and 7 of the plaint 4. Is the plaintiff entitled to the injunction prayed for 5, Relief.
(5) The trial judge did not decide all the issues. The only decision he gave was on issue No 3, namely, whether the plaintiff had become the owner of the suit property by adverse possession. On this issue he held that the plaintiff had become the owner by adverse possession as the decree passed with respect to the property by compromise on March Ii, 1939, had not been executed. As a result the trial court granted a decree of perpetual injunction restraining the Union of India from dispossessing the plaintiff from the property in suit.
(6) From the decree an appeal was taken to the Court of the Additional Senior Subordinate Judge by the Union of India. It was therr held that the plaintiff had not become the owner by adverse possession as in the decree passed in the previous suit for possession filed by the Governor General in Council, it had been agreed that the plaintiff would be granted a perpetual lease with respect to a part of the property and with respect to the rest of the land Governor General could obtain possession. The first appellate court was of the view that the plaintiff had admitted the ownership of the Governor General in Council with respect to the whole of the land as he had agreed to give up possession of a part of the land and had agreed to become a perpetual lessee of the dergah land although free of rent. The court held that the possession of the plaintiff was not adverse but merely ''permissive' and this was held to be incapable of ripening into ownership by lapse of time. l be court found that the real dispute was regarding the land admeasuring 5 bighas 8 bids was because it was in respect of a portion of this land that the notices had been .issued to the tcmateby the Land and Development Officer.
(7) Of this area the Union of India was held to be the owner of the land because the plaintiff's predecessor-in-interest had admitted the title of the Government in the year 1939. On this view the Additional Senior Subordinate Judge set aside the decree of the trial court and dismissed the suit of the plaintiff with costs throughout on September 3, 1963.
(8) Against this decision the plaintiff appealed to the High Court. A learned single judge of this Court held that the plaintiff was entitled to a decree for perpetual injunction He restrained the Union of India from inlerfeiring with the possession of the plaintiff with respect to the land in suit. He held that as the Governor General did not execute the decree issued in his favor with regard to the land outside the durgah the decree had become inexecutable and, thereforee, the Government was not entitled to get possession of the land now. He agreed with the trial court that the effect of the Union of India having obtained a decree for possession and having failed to execute it within the period of limitation was that the decree had become inexecutable. In these circumstances, he held that the plaintiff was entitled to an injunction against the Union of India restraining them from using other methods to execute the decree of 1939. From the order of the learned single judge the Union of India appeals to this court under clause 10 of the letters patent.
(9) There are two maxims of equity which apply to this case. First that 'equity looks on that as done which ought to be done'. Though the perpetual lease has not been executed by the Government in favor of the plaintiff equity will regard as if lease had actually been granted. (See Foster v. Reeves (1892) Qb 255, and Walsh v. Lonsdale (1882) 21 Ch. D. 9. We know the terms of the perpetual lease. These are three. Firstly, the area forming the subject-matter of the lease is 5350 sq. yards. The lease is of land of Durgah, mosque, graveyard and Well. Secondly, the lease will be in perpetuity, but free of rent. Thirdly, there is the condition that the area of land of 5350 sq. yards will be used 'for purely religious purposes'. If the land is put to any other use it will be a brreach of the terms of the lease.
(10) The other maxim of equity is that the who seeks equity must do equity'. This is a rule of 'unquestionable justice which, however, decides nothing in itself; for you must inquire what are the equities which the defendant must do, and what the plaintiff ought to have'. To obtain equitable relief the plaintiff must be prepared to do 'equity' in its popular sense of what is right and fair to the defendant (Snell-Principles of Equity 27th ed p. 30). The plaintift claims a perpetual injunction. He 'wants the court to protect his possession. He got a right to a lease of 5350 sq. yards by virtue of the decree dated March Ii, 1939. The Government agreed to give him land measuring 5350 sq. yards on perpetual lease free of rent ''purely for religious purposes'. As regards 'the remainder of the land' outside the dargab he renounced his title and agreed to give possession to the Government. This is what his predecessor said on March (1, 1939. The plaintiff cannot beallowed to enlarge his claim. If he seeks the equitable remedy of injunction this court will properly press him to his own undertaking and to the statement his predecessor-in-interest made on March 11 1939. The non-execution of the decree has not conferred any right on him, Because he has not claimed that from 1939 till 1959 when he brought the present suit he was holding the remainder of the land adversely to the Government. If he wanted to putforth bids claim of ownership to the land by adverse possession there ought io have been proper pleadings and proper proof. An issue of adverce possession was raised which on the pleading did not arise. The result was that the trial of the suit from the first court to the second appeal has gone entirely on wrong lines. This case well illustrates the principle that the right decision of the case depends on right issues. (Order 14 rule 1(5) Civil Procedure Code .).
(11) The truth is that the trial court and the learned single judge equated non-execution of the decree with adverse possession. There is a world of difference between the two. ' Adverse possession' designates a possession in opposition to the true title and real owner, and implies that it commenced in wrong and is maintained against right (Stround-Judicial Dictionary Vol I p.77 4th ed.). The non-execution will bar the remedy of execution at best. It has no prescriptive property as adverse possession has. In adverse possession there is acquisition of title to immovable property by prescription under Section 27 of the Limitation Act. The non-execution of the decree will not displace the fact that the entire land is Government land. it was pronounced by the decree of 11.3.1939. The plaintiff's predecessor agreed to became the leasee of the properly under the Governor General in respect of 5350 sq. yards and renounced his title to remainder of the land. Renuniation means that the plaintiff's grand father gave up and surrendered the claim to land. That the land belongs to the Government is evidenced by the award of 14.4 1912 by which the Government had permanenly acquired the entire land known as Mahal Inderpat which is a mis spelling of Inderprastha, as Delhi was once called.
(12) The plaintiff's possession can be protected only in respect of the land on which there is dargah, graveyard, mosque and well. Outside this area the plaintiff has no light. His claim that he is in possession of 8069 1/3 sq. yards of land is totally baseless. He can remain in possession of 5350 sq. yards on condition that the land will be used by him 'purely for religious purposes'. If he puts it to any other use it will be misuse. The Government will be entitled to take action for breach of the terms of the lease. We have restated the position as it existed in 1939. It has become necessary because of this long lapse of time to redefine the rights of the parlies so that future disputes can be avoided.
(13) If the plaintiff puts the land to other uses the Government is not restrained from taking action against the plaintiff. No decree for injunction can be given to him in respect of that portion of the land to which he renounced his title in so many words in 1939 The entire land belongs to the Government. in respect of 5350 sq. yards the plaintiff is a perpetual lessee under the Government. In respect of 93 sq. yards the Government is the owner in possession. This is on the principle that possession follows title.
(14) Injunction is a discretionary remedy. He who comes into equity must come with clean hands'. The plaintiff must show that his past record in the transaction is clean for 'he who how committed Iniquity-shall not have Equity'. (Jones v. Lenthal (1669) 1 Ch. Case 154. As the plaintiff has not come with 'clean hands' we must refuse him injunction. There are several reasons. First he has raised a false claim for 8069 1/3 sq. yards. Secondly, he has no right to settle tenants on a property leased to him 'for purely religious purposes'. Thirdly, his claim to 93 sq. yards is untenable in law against the true owner, The decree of 11.3.1939 is the sheet anchor of parties' rights. It is a repository of the Government ownership. The plaintiff must be held to his undertaking as given by his grand father on 11.3.1939. He must be asked to observe the undertaking that he will use the land for 'purely religious purposes' and that this user will be restricted to 5350 sq. yards. Fourthly, he renounced his title to the remaining land of 93 sq. yards. Now he cannot set up a title in himself once again, a title he had relinguished for ever. Adverse possession he has not alleged. His possession is permissive' as found by the first appellate court. Though in strict theory the possession is of the true owner. Fifthly, the plaintiff is taking advantage of his own default. He did not reply to the Government's letter dated 6 12.1940 by which draft lease was sent to him for approval. By silence he cannot acquire rights once he has relinguished them. The Government was willing to give him perpetual lease, free of rent, for purely religious purposes of 5350 sq, yards. But if he does not take it he cannot make capital out of non-execution of the decree.
(15) In our opinion, non-execution the decree does not affect the Government's title to the land. Their title is not extinct. That can be extinguished only by adverse possession which is not the case here. The remedy of execution at best can be barred by non-execution of a decree within the period of limitation. But the Government's remedy under the Public Premises Act is not barred. The Limitation Act bars the remedy but does not extinguish the right ilself. (See Surat Municipality v. Sarifa Air 1939 Bom 494 and Muppanna v. Shree Gajanon, Air 1947 Bom 375. Once Government's title to land is undisputably established the plaintiff will not be protected in his wrongful possession. We see no good reason why we should give an injunction to the plaintiff. Firstly, he is not using the land for 'purely religious purposes'. Secondly, he sets up a little in himself against the true owner. The court will decline in its equitable jurisdiction to assist plaintiff who does not abide by the terms of compromise dated March 11, 1939.
(16) On the passing of the decree dated 11, 1939 the Government became the owner of 93 sq. yards having every right which a person can legally have in relation to the land, including the right to occupy, possess, use abuse, use up, let out, transfer, sell, exchange, gift bequeath and destroy. If the plaintiff's predecessor continued to be in possession, he was holding it not for himself but for the new proprietor.
(17) Possession is a relationship of great legal importance. Possession is a legal-concept of variable meaning. The word is being used in different context with different meanings. In the context of this case the possession of the plaintiff after the compromise decree was passed was a wrongful possession. There is a clear distinction between rightful possession and wrongful possession. The rightful possession is where a person has a right to the possession of the property. Possession without right is called wrongful Wrongful possession is where a person takes possession of property to which he is not entitled, so that the possession and the right of possession are in one person, and the right to possession is another. This distinction was overlooked in this case.
(18) At the end of this judgment the learned judge said :
'I,however make it clear that if the decree passed on 11.3.1939 which is Ex. D1 in the present case is executable in some way at the instance of the defendant this injunction will not debar such execution'.
(19) This shows that the learned judge was convinced of the strength of the Government's claim. But he thought the bar of limitation will defect the rightful owner. The result of his decision is that the Government to stall rights to the recovery of the property of which it had become the owner under the decree of 11th March, 1939. Because the learned judge issued a perpetual injunction. The learned judge thought that he was helpless because the Government did not execute the decree within the limitation period.
(20) It appears to,us that it is a misreading of the compromise decree dated March 11, 1939 to say that the Government was required to execute it within the limitation period. Possession was not intended to be taken by the Government through court. What happened in effect in 1939 was this This Government said to the plaintiff's predecessor-in-title; you take a perpetual grant of 5350 ?q. yards for the dargah. The remaining land you surrender To this he agreed. He said I accept the perpetual grant. I renounce my title to the remaining land. So surrender was complete. Nothing further was required to be done. The Government's right to possession and the enjoyment of land was established once for all. The question is of the right to possess and not of taking.
'EXCEPTwhere possession is required to be given as in the case of what otherwise might be a fraudulent conveyance, the right to have possession may pass without transfer of possession and the one who obtains the title will have as an incident the right to have possession'.
(Jurisprudence-Vol V. P. 93)
(21) Title to the land vested in the Government once the plaintiff's predecessor surrendered his right there to. He released his claim such as he had. No execution was necessary. Execution is the application of force. But force is applied where voluntary submission is withheld. The events of 1939 show that this was a compromise of conflicting claims. There was accord and concord on both sides. There was a package deal. The transaction was agreed to as a whole. There was give and take. Land in excess of 5350 sq. yards was surrendered to the Government. A perpetual lease was taken from the Government in respect of 5350 sq. yards. Nothing remained to be executed. Something was gained, something was lost. A precarious possession was transformed into a perpetual lease free of rent. This was a positive gain. Possession of 93 sq. yards passed to the Government. This was a relinguishment. On renunciation the surrender was an accomplished fact. The plaintiff's predecessor's right to land was extinct. The Government became the possessor of the land.
(22) In law possession is treated not merely as a physical condition protected byownership, but as a right in itself (29 Halsbury's laws (3rd ed.363). If a man buys an empty house, though he never gees inside it, he is in actual possession of it. No body else can be. If there is a tramp sleeping in it without his permission, the new owner is still in possession of it. If there is somebody there whom he allows to be there, not as a tenant, but merely as a license, still it may be said that there are facts on which it can found that the new owner is in possession of it. (Mouser v. Major (1941) 1 K.B. 477 C.A.per du parcq L.J. at pp. 485-487). We will say the same. There are facts in this. case on which it can be found that the Government is in possession of the land.
(23) For those reasons we allow the appeal and set aside the order of the learned single judge dated March 29, 1971 and dismiss the plaintiff's suit with costs throughout.