Prakash Gupta, J. - (1.) Heard learned counsel for the parties.
(2.) It is submitted by Shri Mahendra Goyal, learned counsel for the appellant that in a simplicitor suit for permanent injunction, the question of title was totally irrelevant. Learned courts below have seriously erred in framing the issue regarding title and in deciding the same. The courts below have recorded contrary finding in this respect. The learned trial court, on one hand, observed that question of ownership was not to be decided on the basis of the sale deed, still relying upon the sale deed, decided issue No.1 in favour of the respondents. It is further contended that while deciding issues framed in the case, both the learned courts below have misread the evidence of the parties regarding possession over the plot in dispute. It has also been argued that the agreement to sell was executed in the presence of the respondent Smt. Tripta Dhawan, therefore, the appellant Jugendra Singh is the ostensible owner of the property in question. It is submitted that as per report of the Commissioner, it is clear that the appellant was in peaceful possession of the disputed land but both the courts below have not considered the same. The respondents have admitted in their statement that the appellant has trespassed on the disputed land but it has not been proved that the appellant forcibly dispossessed the respondent No.1 during the pendency of the suit. Both the courts have failed to give a specific finding as to which of the party is in possession over the disputed land, therefore , the judgments & decrees passed by the courts below are perverse.
(3.) To contend that a person in peaceful possession is entitled to retain his possession and to protect such possession may even use reasonable force to keep out the trespasser, learned counsel for the appellant has placed reliance on the judgment of the Supreme Court in Rame Gowda (D) by Lrs. vs. M. Varadappa Naidu (D) ly Lrs. And Anr, 2004 AIR(SC) 4609. In this case the plaintiff had not been able to prove his title but was found to be in settled possession of the property. Further to contend that the suit of the plaintiff for a mere declaration without relief of recovery of possession was not maintainable, learned counsel for the appellant has placed reliance on the judgment of the Supreme Court in Executive Officer, Arulmigu Chokkanatha Swami Koil Truxt Virudhunagar vs. Chandran and others, 2017 AIR(SC) 1034 in which it has been held that where the plaintiff is not in possession of the disputed plot, simpliciter suit for permanent injunction is not maintainable. To support this contention, learned counsel for the appellant has also placed reliance on the judgment of this Court in Shyam Singh vs. Bhanu Prakash Saxena & Ors, 2016 1 RajLW 197 (Raj.) and judgment dated 18th April, 2016 passed in SB Civil Second Appeal No.505/2011, Nagar Nigam Kota vs. Roop Singh (Dead) through Lrs. To explain the general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, the learned counsel for the appellant has placed reliance on the judgment of the Supreme Court in Anathula Sudhakar vs. P. Buchi Reddy (Dead) by LRs. & Ors, 2008 AIR(SC) 2033.;