TATIA, J. - (1.) HEARD learned counsel for the appellants.
(2.) ACCORDING to learned counsel for the appellants, one of the appellants, Dhanna Ram father of Hanuman Ram filed one suit for possession being civil original No. 82/2004 against respondent Anada Ram, plaintiff of civil original No. 164/2004. said suit No. 82/2004 was withdrawn by Dhanna Ram on 4. 12. 2004. It will be relevant to mention here that on 4. 12. 04, it was submitted before the trial Court by the plaintiff in civil original No. 82/2004 that he will get justice through administrative authorities in the Abhiyan ``administration towards Villages'', therefore, the plaintiff wants to withdraw the suit with liberty to file fresh suit. On this plea, the trial Court dismissed the suit of the plaintiff with permission to file fresh suit by order dated 4. 12. 04. When said Dhanna Ram withdraw the suit, defendant Anada Ram in suit No. 82/04 apprehending his highhanded dispossession from said Dhanna Ram and his son Hanuman Ram, filed present suit for injunction against Dhanna Ram and Hanuman Ram in the trial Court on 6. 12. 04 which was registered as Civil Original No. 164/04, said suit No. 164/04 was registered on 7. 12. 2004 and notices were issued to the defendants. On 9. 12. 2004, interim order was passed by the trial Court in favour of plaintiff Anada Ram against defendants Dhanna Ram and Hanuman Ram. It is alleged that on 9. 12. 2004 itself, plaintiff Anada Ram was dispossessed, obviously by administrative authorities and possession was handed over to the defendants/appellants. The trial Court after trial dismissed the suit No. 164/04 of plaintiff Anada Ram on the grounds that he failed to prove his title and also failed to prove his possession of 60 years as he claimed. Plaintiff Anada Ram preferred a regular first appeal against the judgment and decree of trial Court dated 14. 2. 2006. The first appellate Court, after considering all the facts of the case and proceedings taken by plaintiff Dhanna Ram in suit No. 82/04 and the manner in which plaintiff Anada Ram was dispossessed and after noticing the interim order dated 9. 12. 2004, held that plaintiff Anada Ram's prior possession was admitted possession and the appellants with the help of administrative authorities and that help was provided to defendants Dhanna Ram and Hanuman Ram because Dhanna Ram gave threat to the administrative authorities of self immolation, got possession of plot from Anada Ram, therefore, they had no right to remain in possession of the dispute plot. In the above facts and circumstances, the first appellate Court granted decree of possession for plot measuring 20 feet x 80 feet of which the appellants highhandedly took possession from the plaintiff with the help of Tehsildar. The first appellate Court also restrained the appellants from dispossessing plaintiff Anada Ram from the plot in dispute. Being aggrieved of the judgment and decree of the first appellate Court dated 15. 4. 2006, the appellants preferred this second appeal.
(3.) ACCORDING to learned counsel for the appellants, the earlier suit filed by Dhanna Ram, who was not the real owner of the property and in the present suit, Hanuman Ram is party who is the real owner of the property, therefore, withdrawal of suit by Dhanna Ram is of no consequence so far as against the interest of Hanuman Ram is concerned. It is also submitted that plaintiff Anada Ram did not gave the measurements of the plot from which he was dispossessed. It is also submitted that the trial Court, after considering the facts, rightly held that the plaintiff failed to prove his possession since last 60 years and did not disclose exact measurement of encroached land. ACCORDING to learned counsel for the appellants, the administrative authorities dispossessed Anada Ram as Anada Ram illegally encroached upon Hanuman Ram's plot and gave possession of the plot to the appellant, rightful owner, therefore, the plaintiff could not have been granted relief of possession against the rightful owner of the plot. According to learned counsel for the appellants, no suit for injunction is maintainable against the real owner is the law laid down by the Hon'ble Apex Court in the case of Premji Ratansey Shah and others vs. Union of India and others reported in (1994) 5 SCC 547), wherein the Hon'ble Apex Court held that, ``it is equally settled law that injunction would not be issued against the true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who had no interest in the property. Even assuming that they had any possession, their possession was wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner. '' Learned counsel for the appellants also relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Tamil Nadu Housing Board vs. Viswam (Dead) by LRs. reported in (1996) 8 SCC 259, wherein the Hon'ble Supreme Court held that, ``a trespasser cannot claim injunction against the owner. '' ;