R.A. Mehta, J.
1. This case is an example showing how the process of the Court sometimes earns bad name and reputation. In a suit for possession filed in 1962, a consent decree was passed in March, 64 and time was granted to hand over vacant possession of the suit premises till 31 March, 66. Bai Nani was defendant No. 3 who was alleged to be the sub-tenant and who was also party to the decree. This decree of 1964 remains unexecuted till today in 1984.
2. As possession was not handed over by 31st March, 1966 as per the decree, a darkhast No. 72 of 1966 was filed for execution of the decree and recovery of possession. Civil Suit No. 370 of 1966 was filed by brother of original defendant No. 1. That suit was dismissed. Defendant No. 1 had also filed Reg. Civil Suit No. 361 of 1966 for setting aside the decree on the ground that the decree was a nullity. The suit, appeal and second appeal failed and till then the decree could not be executed.
3. Now, the decree is sought to be resisted by the present opponent Vasantlal who has filed Regular Civil Suit No. 418 of 1981 on the ground that the decree is not binding to him and that he has become the owner of the suit premises by adverse possession. He is the son of original defendant No. 3 Bai Nani.
4. In the suit and the application for injunction, he has stated that since 1955, he is in independent possession, and enjoyment of the suit premises and has been residing there with his children and has got married in the suit premises in 1971 and has started legal practice from 1976 in the suit premises. In the plaint, he has shown his age to be 35 years in 1981. Therefore, in 1955, his age was only 9 years and his possession could not be independent from that of his mother. Every member of the tenant's family would be residing with the family in the tenanted premises. That would not mean that every such member is in possession or independent possession of the tenanted premises. Merely because such members do not pay any rent to the landlord, that would not mean that their so-called possession is adverse possession. The petitioner has nowhere shown as to how he acquired possession and how the nature of so-called possession was adverse possession. His only averment is that since 1955, he has been in possession of the suit premises independently and ever since he has been continuing in possession. This is quite consistent with his residence with his mother, who was tenant or sub-tenant and who was party to the Civil Suit No. 243 of 62 and also the party to the compromise dated 23-3-64 and consent decree for possession under which time to vacate was granted upto 31st March 60. Till 1981. other persons were resisting the decree and lighting tooth and nail and dragged the matter through three courts to High Court. This petitioner did not feel any necessity of claiming his right and title in the suit premises. He has nowhere stated that he was not aware of any of these proceedings. It is absolutely unnatural and improbable that he would be unaware of these proceedings for all these years. There is nothing even prima facie shown as to what is the nature of his possession and how his possession is adverse possession. The Learned Counsel for the opponent has argued that it is not in dispute that he is in possession since last more than 10 years and the question of nature of possession and adverse possession can be decided only at the trial of the suit. He would be right only if he can make out a prima facie case for injunction at this stage. But he has not been able to point out anything to show his independent possession and adverse possession. In 1955, when he says to have acquired independent possession, his age was merely 9 years. In 1962, when the suit was filed against his mother, he was hardly 16 years of age. Therefore, there is no question of his having any independent possession or adverse possession. He was residing there merely because his mother was residing there and his residence was only through his mother. But for that, he would not have been there. Thus there is no prima facie case for the opponent-plaintiff in the present suit.
5. The lower courts have utterly failed to consider whether there is prima facie case. The lower courts have merely gone by undisputed possession for more than 12 years and observed that the question of adverse possession would be decided only at the trial. This is thoroughly and basically erroneous. No decree for possession can be executed against a tenant if such an approach is upheld. Every tenant would be residing with the members of his family and if a decree for possession is passed against the tenant, any member of the family can say that he is in possession of the suit premises and he is in adverse possession. Such possession of the members of the family cannot be said to be independent possession or possession in law. They are in possession because the tenant is entitled to be in possession during the continuance of the tenancy. Otherwise they have no greater or larger or independent right to be in possession. Since both the courts have failed to consider whether there is prima facie case in the suit, the orders of the lower courts suffer from material illegality and irregularity. The courts have no jurisdiction to grant interim orders without finding that there is prima facie case so that the plaintiff is likely to succeed in the suit.
6. The Learned Counsel for the respondent-plaintiff has referred to the case of Hindustan Aeronautics v. Ajit Prasad : (1972)ILLJ170SC and considered that when both the courts have granted and continued the injunction as to possessions, the High Court should not interfere in revision under Section 115 of the C.P. Code. The Supreme Court has observed as follows:
In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate court. It is not the conclusion of the High Court that the first appellate court had no jurisdiction to make the order that it made. The order of the first appellate court may be right or wrong; may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate court exercised its jurisdiction either illegally or with material irregularity.
7. In the present case, I find that the lower courts have not at all considered the prima facie case while granting injunction and without that basic finding, the lower courts had no jurisdiction to grant interim injunction. If on merits and evidence, the lower courts had found prima facie case and the lower courts had come to right or wrong conclusion, it might have been different thing. Here, the courts have exercised jurisdiction not only illegally but with material irregularity. Such an order cannot be allowed to stand even for a while.
8. In the result, the revision application succeeds and the impugned orders of the lower courts are quashed and set aside and the application Ex. 5 for interim injunction in Reg. Civil Suit No. 418 of 1981 of the Court of Civil Judge, (S. D.), Surat is dismissed with costs throughout.
The Learned Counsel for the opponent has prayed for 4 weeks time in order to enable him to approach the Supreme Court against this order. Having regard to the facts and circumstances of the case, I am not inclined to grant this prayer. However, if the opponent files an undertaking and affidavit in this Court within one week from today to the effect that he is the only person in exclusive and effective possession of the suit premises and that he would hand over peaceful and vacant possession of the suit premises to the petitioners, on expiry of four weeks' time from today, unless in the meanwhile he has obtained any further order in his favour from the Supreme Court, the execution proceedings against the petitioner shall not proceed for four weeks from today. If such an undertaking is not filed within one week from today, the execution shall proceed after one week from today. Rule made absolute accordingly.