RAMJI RAI AND ANR. versus JAGDISH MALLAH (DEAD) THROUGH L.RS. AND ANR.

Citation: [2006] SUPP. 10 S.C.R. 28 · Decided: 04-12-2006 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed
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Judgment (excerpt)

A 
RAMJI RAI AND ANR. 
v. 
JAGDISH MALLAH (DEAD) THROUGH L.RS. AND ANR. 
DECEMBER 4, 2006 
B 
[DR. ARIJIT PASA YAT AND S.H. KAPADIA, JJ.] 
Suit: 
Suit for permanent injunction-Restraining the defendants from 
C interfering in possession of suit property-Duty of Court-Held: Court has 
to merely decide whether plaintiff is in possession or not and not ownership 
of title to the suit property-Specific Relief Act, 1963-s.38. 
Appellants filed a suit for a permanent injunction restraining the 
D respondents from interfering in the possession of the land in dispute as also 
from interfering in the construction of the boundary wall, on the ground that 
the disputed land was in their possession since long and utilized by them for 
different household purpose. Trial Court decreed the suit. Appellate Court 
set aside the decree holding that the appellants had failed to prove that disputed 
land was owned by him and that the boundary wall was constructed by them. 
E High Court upheld the same. 
F 
In appeal to this Court, appellants contended that the suit was only for 
permanent injunction and not for declaration of ownership and, therefore, lower 
appellate court had erred in holding that the appellants had failed to prove 
their title to the disputed land. 
Dismissing the appeals, the Court 
Held: 1. The lower appellate court should have dismissed the suit filed 
by the appellants only on the ground that the appellants had failed to prove 
that they were in possession of the disputed lands. Under Section 38 of the 
G Specific Relief Act, 1963, an injunction restraining disturbance of possession 
will not be granted in favour of the plaintiff who is not found to be in possession. 
In the case of a permanent injunction based on protection of possessory title 
in which the plaintiff alleges that he is in possession, and that his possession 
is being threatened by the defendant, the plaintiff is entitled to sue for mere 
H 
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RAMJI RAJ v. JAGDISH MALLAH (DEAD) THROUGH L.RS. [KAPADIA, J.]29 
injunction without adding a prayer for declaration of his rights. (32-B-C) 
A 
Mu/la's Indian Comract and Specific Relief Acts, 12th Edn., page 2815, 
relied on. 
2. The present suit is only for permanent injunction and, therefore, the 
lower appellate court should have, on the facts and circumstances of this case, B 
confined itself to its dismissal only on the ground that the appellants have 
failed to show that they were in possession. This has been done but the 
declaration that the appellants are not the owners, was not necessary. (32-E) 
A.L. V.R. Ct. Veerappa Chettiar v. Arunachalam Chetti and Ors., AIR 
(1936) Madras 200, referred to. 
C 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5353 of2006. 
From the Judgment and final Order dated 2.4.2004 of the High Court of 
Judicature at Allahabad in S.A. No. 2839/198 I. 
Dr. R.G. Padia, Sushil Mishra, Tushar Bakshi and Naresh Bakshi for the 
Appellants. 
P.K. Jain for the Respondents. 
The judgment of the Court was delivered by 
KAPADIA, J. Leave granted. 
D 
E 
Plaintiff (appellant no. I herein) instituted Civil Suit No.202/77 for 
permanent injunction in the court of Additional MunsifMagistrate-VII, Ballia, 
against defendants-respondents. In the said suit appellant sought permanent F 
injunction restraining the defendants from interfering in the possession of the 
land in dispute or from raising boundary wall. In the suit it was alleged that 
the appellants owned a house from the time of their ancestors; that their 
sehan was towards the south of the said house; that the said sehan was in 
their possession even prior to the enactment of U.P. Zamindari Abolition and G 
Land Reforms Act, 1950; and that their cattle, palanis and troughs etc. existed 
on the said land which was utilized by the appellants for different household 
purposes. The appellants further alleged that the disputed land was unbounded 
and that they had started construction of the boundary wall after leaving a 
sma\\ passage between their house and the sehan. The appellants further 
stated that they could not complete the boundary wall as they had to go to H 
30 
SUPREME COURT REPORTS (2006) SUPP. 10 S.C.R. 
A Bombay where they were employed; that when they came back from Bombay 
to the village they started the work of reconstruction which was obstructed 
by the respondents and, therefore, they were compelled to file the suit for a 
permanent injunction restraining the respondents from interfering
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