PADHIYAR PRAHLADJI CHENAJI (DECEASED) THROUGH L.R.S versus MANIBEN JAGMALBHAI (DECEASED) THROUGH L.R.S AND ORS. on 3 March 2022

[2022] 2 S.C.R. 455

PADHIYAR PRAHLADJI CHENAJI (DECEASED) THROUGH L.R.S

v.

MANIBEN JAGMALBHAI (DECEASED) THROUGH L.R.SAND ORS.

(Civil Appeal No. 1382 of 2022)

MARCH 03, 2022

[M. R. SHAH AND B. V. NAGARATHNA, JJ]

Permanent Injunction – Registered Sale Deed – Suit seekingcancellation of sale deed, declaration and permanant injunction –Trial court partly allowed the suit by granting the relief of permanentinjunction and refusing the relief of cancellation of the sale deedand declaration – First Appellate Court upheld the same – HighCourt dismissed the appeal holding that the relief of permanentinjunction sought by the original plaintiff can be said to besubstantive relief and not a consequential relief and therefore, thetrial court was justified in granting the permanent injunction infavour of the plaintiff as the plaintiff was/is found to be in possessionof the suit property – Hence instant appeal – Held: The main reliefssought by the plaintiff in the suit were cancellation of the sale deedand declaration – The prayer of permanent injunction restrainingdefendant from disturbing her possession can be said to be aconsequential relief – Once the suit is held to be barred by limitationqua the declaratory relief and when the relief for permanent injunctionwas a consequential relief, the prayer for permanent injunction, whichwas a consequential relief can also be said to be barred by limitation– An injunction is a consequential relief and in a suit for declarationwith a consequential relief of injunction, it is not a suit fordeclaration simpliciter, it is a suit for declaration with a furtherrelief – Whether the further relief claimed has, in a particular caseas consequential upon a declaration is adequate must alwaysdepend upon the facts and circumstances of each case – Whereonce a suit is held not maintainable, no relief of injunction can begranted. Injunction may be granted even against the true owner ofthe property, only when the person seeking the relief is in lawfulpossession and enjoyment of the property and also legally entitled tobe in possession, not to disposes him, except in due process of law –Once the rights of the parties are adjudicated and the defendant

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ANo.1 is held to be the true owner on the basis of the registered saledeed and on payment of full sale consideration, it can be said thatdue process of law has been followed and thereafter the plaintiff isnot entitled to any permanent injunction against the true owner.

Allowing the appeal, the CourtB

HELD: 1. From the impugned judgment and order passedby the High Court, it appears that the High Court has not properlyappreciated the distinction between a substantive relief and aconsequential relief. The High Court has observed that in theinstant case the relief of permanent injunction can be said to be aCsubstantive relief, which is clearly an erroneous view. The mainreliefs sought by the plaintiff in the suit were cancellation of thesale deed and declaration and the prayer of permanent injunctionrestraining defendant No.1 from disturbing her possession canbe said to be a consequential relief. Therefore, the title to theproperty was the basis of the relief of possession. If that be so, inDthe present case, the relief for permanent injunction can be saidto be a consequential relief and not a substantive relief asobserved and held by the High Court. Therefore, once the plaintiffhas failed to get any substantive relief of cancellation of the saledeed and failed to get any declaratory relief – Relief of injunctionEcan be said to be a consequential relief. Therefore, the prayer forpermanent injunction must fail. In the instant case as the plaintiffcannot be said to be in lawful possession of the suit land, i.e., thepossession of the plaintiff is “not legal or authorised by the law”,the plaintiff shall not be entitled to any permanent injunction.[Para 11][469-B-F]F

Dilboo vs. Dhanraji (2000) 7 SCC 702 : [2000] 3Suppl. SCR 214; Jharkhand State Housing Board vs.Didar Singh and Anr. (2019) 17 SCC 692; A.Subramanian vs. R. Pannerselvam (2021) 3 SCC 675 –relied on.G

2. An injunction is a consequential relief and in a suit fordeclaration with a consequential relief of injunction, it is not asuit for declaration simpliciter, it is a suit for declaration with afurther relief. Whether the further relief claimed has, in a H

PADHIYAR PRAHLADJI CHENAJI (DECEASED) THROUGH L.R.S v. MANIBENJAGMALBHAI (DECEASED) THROUGH L.R.S AND ORS.

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particular case as consequential upon a declaration is adequatemust always depend upon the facts and circumstances of eachcase. Where once a suit is held not maintainable, no relief ofinjunction can be granted. Injunction may be granted even againstthe true owner of the property, only when the person seekingthe relief is in lawful possession and enjoyment of the propertyand also legally entitled to be in possession, not to disposes him,except in due process of law. Once the rights of the parties areadjudicated and the defendant No.1 is held to be the true owneron the basis of the registered sale deed and on payment of fullsale consideration, it can be said that due process of law has beenfollowed and thereafter the plaintiff is not entitled to anypermanent injunction against the true owner. [Paras 11.1,12.1][469-F-H; 471-F-G]

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3. All the Courts below have erred in granting permanentinjunction in favour of the plaintiff and against the defendant No.1,who is the true owner. After having held that the plaintiff had notitle and after dismissing the suit qua the cancellation of theregistered sale deed and the declaration, the plaintiff is not entitledto relief of permanent injunction against defendant No.1 – thetrue owner. [Para 13][471-G-H; 472-A]

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Maria Margarida Sequeira Fernandes vs. Erasmo Jackde Sequeira (2012) 5 SCC 370 : [2012] 3 SCR 841;Thomas Cook (India) Ltd. vs. Hotel Imperial (2006) 88DRJ 545 – relied on.

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Anathula Sudhakar vs. P. Buchi Reddy (2008) 4 SCC594 : [2008] 5 SCR 331 – referred to.

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relied on

Para 12

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1382of 2022.

From the Judgment and Order dated 24.10.2018 of the High Courtof Gujarat at Ahmedabad in Second Appeal No.8 of 2016.B

Pallav Shishodia, Sr. Adv., Rishabh Sancheti, Ms. Padma Priya,Anchit Bhandari, Sushant Rao, Ms. Saloni Bhandari, Ms. RacheetaChawla, K. Paari Vendhan, Advs. for the Appellants.

Rauf Rahim, Ali Asghar Rahim, Advs. for the Respondents.CThe Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 24.10.2018 passed by the High Court of Gujarat in SecondDAppeal No. 8 of 2016 by which the High Court has dismissed the saidappeal and has confirmed the judgment and decree passed by the trialcourt further confirmed by the First Appellate Court granting injunctionin favour of the original plaintiff restraining the defendant from disturbingthe possession of the plaintiff, the original defendant has preferred thepresent appeal.

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2. That the dispute is with respect to the land bearing RevenueSurvey No.49 ad-measuring 6 acres and 15 gunthas situated at the villageMahadeviya, District Deesa. The husband of the original plaintiff hadexecuted a Sale Deed dated 17.06.1975 in favour of the appellant herein– original defendant (hereinafter referred to as the “original defendant”)Fby which he sold his agricultural land in question.

2.1 That on the basis of the sale deed, the name of the defendantNo.1 was mutated in the Revenue record in the year 1976 itself. Allthroughout the name of the original defendant No.1 was mutated in theRevenue record as an owner right from the year 1976 onwards. It is theGcase on behalf of the defendants that thereafter between 1975 to 1997,he had authorised and completed construction projects on the land. Healso availed a bank loan where the suit property was given as a collateralsecurity.

PADHIYAR PRAHLADJI CHENAJI (DECEASED) THROUGH L.R.S v. MANIBENJAGMALBHAI (DECEASED) THROUGH L.R.S AND ORS. [M. R. SHAH, J.]

2.2 That in the year 1999, the husband of the original plaintiff,who executed the registered sale deed died. That after a period ofapproximately 22 years, respondent No.1 herein – original plaintiff(hereinafter referred to as “original plaintiff”) instituted Regular CivilSuit No. 123 of 1997 in the Court of Civil Judge (Junior Division), Deesafor the reliefs of cancellation of the registered Sale Deed dated17.06.1975, declaration and permanent injunction.

2.3 The case on behalf of the original plaintiff was that herhusband was addicted to liquor and as the family was in need offinances, her husband decided to sell 1 acre of the land out of total 6acres and 15 gunthas to the defendant No.1. According to the plaintiff,defendant No.1 taking advantage fraudulently got the sale deedregistered of the entire suit property, i.e., 6 acres and 15 gunthas.Therefore, it was the case on behalf of the plaintiff that the defendantNo.1 played a fraud upon her family. According to the plaintiff, thepossession of only 1 acre was handed over to the defendant No.1 andthe plaintiff continued to be in possession of the remaining 5 acres and15 gunthas of land. It is the case of the plaintiff, no sooner she came tolearn about the alleged fraud and as the defendant No.1 tried to disturbher settled possession in the suit land, she instituted the regular civilsuit for the aforesaid reliefs.

2.4 The suit was opposed by defendant No.1. It was the specificcase on behalf of the defendant No.1 that he has purchased the entireland, i.e., 6 acres and 15 gunthas under the registered sale deed dulyexecuted by the husband of the plaintiff. It was also the case on behalfof the defendant No.1 that he is in possession of the entire suit land andis cultivating the same since many years. According to the defendantNo.1, the plaintiff has no right, title or interest in the suit property. At thisstage, it is required to be noted that the plaintiff joined the brothers ofher husband as defendant Nos. 2 and 3 against whom as such no reliefswere claimed.

2.5 The trial court framed the following issues:- “1.Whether the plaintiff proves that her husband had given inwriting 1 acre land located on the North from survey no. 49paiki for construction of well?

2. Whether the plaintiff proves that the defendant no.1 alongwith defendant no. 2 and 3 got the sale deed of survey no.

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460SUPREME COURT REPORTS

A49 admeasuring 6 acre - 15 guntha land executed. on 17/6/75 for Rs. 4000/- from her husband falsely?

3. Whether the defendant proves that the husband of plaintiffhad sold him 6 acre - 15 guntha land of survey no. 49. byregistered sale deed dated 17/6/75 and he has the possessionBof the land since then?

4. Whether the plaintiff is entitled to get declaration as prayed?

5. Whether the plaintiff is entitled to get the relief sought?

6. What order and decree?”

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2.6 On appreciation of evidence, both oral as well as documentary,the trial court partly allowed the suit. The trial court declined to grant therelief of cancellation of the sale deed and declaration and held thatdefendant No.1 purchased the entire 6 acres and 15 gunthas of the landunder the registered Sale Deed dated 17.06.1975. However, the trialDcourt believed the plaintiff to be in possession of the suit land to theextent of 5 acers and 15 gunthas of land and accordingly granted therelief of permanent injunction.

2.7 Defendant No.1, feeling aggrieved and dissatisfied with thejudgment and decree of permanent injunction passed by the trial court,Epreferred the Regular Civil Appeal No. 15 of 2000 before the FirstAppellate Court – District Court of Banaskantha at Deesa. The FirstAppellate Court dismissed the said appeal and confirmed the judgmentand decree of permanent injunction passed by the trial court.

2.8 At this stage, it is required to be noted that so far as the judgmentFand decree passed by the trial court refusing to grant the decree ofcancellation of the registered sale deed and refusing to grant declarationof title of the property in her favour attained finality and it was thedefendant No.1 who unsuccessfully preferred the appeal before the FirstAppellate Court challenging the decree of permanent injunction in favourof the original plaintiff.

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2.9 Feeling aggrieved and dissatisfied with the judgment and decreepassed by the First Appellate Court, defendant No.1 preferred the SecondAppeal before the High Court. The High Court framed the followingsubstantial questions of law:- “(1) Whether in the facts and circumstances of the case. CourtsHbelow, particular appellate Court has committed serious error of PADHIYAR PRAHLADJI CHENAJI (DECEASED) THROUGH L.R.S v. MANIBENJAGMALBHAI (DECEASED) THROUGH L.R.S AND ORS. [M. R. SHAH, J.]

law in holding that so far as the relief of cancellation of sale deedis concerned, it is barred by limitation and so far as the relief ofinjunction is concerned, it is not barred by limitation as plaintiffhas continuous cause of action for that relief?

(2) Whether in the facts and circumstances of the case, is itpossible to draw conclusion about possession of the either party?Whether in arriving at finding as to the possession Courts belowhave correctly appreciated materials on record or have committedserious error of law?”

2.10 By the impugned judgment and order, the High Court hasdismissed the second appeal by observing and holding that the relief ofpermanent injunction sought by the original plaintiff can be said to besubstantive relief and not a consequential relief and therefore, the trialcourt was justified in granting the permanent injunction in favour ofthe plaintiff as the plaintiff was/is found to be in possession of 5 acresand 15 gunthas of land out of total area ad-measuring 6 acres and 15gunthas.

2.11 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court dismissing his second appeal andconfirming the judgment and decree passed by the trial court of grantingpermanent injunction in favour of the original plaintiff, the originaldefendant No.1 has preferred the present appeal.

3. Shri Pallav Shishodia, learned Senior Advocate appearing onbehalf of the original defendant No.1 has vehemently submitted thatonce the relief relating to declaration as to title of the plaintiff to suit landis declined, the trial court erred in granting the relief of permanentinjunction to protect the alleged “possession” of the plaintiff.

3.1 It is submitted that the permanent injunction sought and grantedin favour of the plaintiff is unjust and contrary to Section 38 read withSection 41 of the Specific Relief Act.

3.2 It is further contended that even the relief for permanentinjunction was contrary to the evidence on record. It is submitted that assuch, right from the execution of the registered Sale Deed dated17.06.1975, the defendant No.1 is in possession of the entire suit land. Itis submitted that right from 1975 in the Revenue record, the name of thedefendant No.1 is shown as a cultivator and in possession. It is submittedthat even defendant No.1 also availed a bank loan where the suit property

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Awas given as a collateral security. It is submitted that even in the registeredsale deed, it was specifically mentioned that the full sale considerationhas been paid and that the defendant No.1 – purchaser was put inpossession of the entire land. It is urged that once the trial court believedthe execution of the registered sale deed with respect to the entire landin question and also believed that the full sale consideration with respectBto the entire land in question had been paid, the trial court ought to havebelieved that part of the sale deed in which it was specifically mentionedthat possession of the entire land in question was handed over to thedefendant No.1. It is submitted therefore that all the Courts havematerially erred in believing the possession of the plaintiff with respectCto 5 acres and 15 gunthas of land.

3.3 It is further submitted by Shri Shishodia, learned SeniorAdvocate appearing on behalf of the original defendant No.1, that evenotherwise, all the Courts below have materially erred in granting therelief of permanent injunction in favour of the plaintiff. It is contendedDthat once the plaintiff failed to get any relief regarding the declarationas to title and the registered sale deed in favour of the defendant No.1has been believed, in that case, as the relief for permanent injunctionwas a consequential relief sought in the suit, the plaintiff shall not beentitled to any protection and/or any injunction protecting her allegedpossession.E

3.4 It is further submitted that the Courts below have not properlyappreciated the fact that once the plaintiff failed to get any relief regardingdeclaration as to title and the registered sale deed in favour of thedefendant No.1 came to be believed, the so called possession of theplaintiff can be said to be unlawful and/or illegal possession and in anyFcase cannot be said to be lawful possession and therefore is not entitledfor the permanent injunction as prayed and granted by the trial courtconfirmed by the High Court.

3.5 It is also submitted that if the suit for declaration was barredby limitation, then the relief seeking permanent injunction was also barredGby limitation, as the plaintiff challenged the Sale Deed dated 17.06.1975after a period of 22 years.

3.6 It is further submitted that after the suit was filed in the year1997 challenging the sale deed of 1975, the trial court declined thetemporary injunction vide order dated 12.12.1997. Thereafter, the FirstH

PADHIYAR PRAHLADJI CHENAJI (DECEASED) THROUGH L.R.S v. MANIBENJAGMALBHAI (DECEASED) THROUGH L.R.S AND ORS. [M. R. SHAH, J.]

Appellate Court protected the possession of the appellant – defendantNo.1 by granting an order of status quo during the pendency of the firstappeal, which was further continued even by the High Court vide orderdated 21.03.2016. It is submitted that even the order of status quo hadbeen extended by the High Court after the impugned judgment andcontinued by this Court vide order dated 11.01.2019. It is submitted thatthe defendant No.1 all along has been in possession and in exclusivepossession of the suit land, which stand protected by the judicial ordersall throughout in recognition of the said fact.

3.7 Making the above submissions, it is prayed to allow the presentappeal and quash and set aside the judgment and decree passed by thetrial court of granting permanent injunction as affirmed by the High Court.

4. Present appeal is vehemently opposed by Shri Rauf Rahim,learned Advocate appearing on behalf of the original plaintiff.

4.1 It is vehemently submitted by Shri Rahim, learned Advocateappearing on behalf of the original plaintiff that as such there areconcurrent findings of fact recorded by all the Courts below holding thatthe plaintiff is in possession of the entire suit land, i.e., 5 acre and 15gunthas of land. It is submitted that these finding of facts have beenrecorded by all the Courts below on appreciation of evidence on record,both oral as well as documentary. It is further submitted that as theplaintiff is found to be in settled possession, the only remedy available todefendant No.1 would be to file a substantive suit to get the relief ofpossession. Reliance is placed on the decision of this Court in the caseof Anathula Sudhakar Vs. P. Buchi Reddy, (2008) 4 SCC 594.

4.2 It is submitted that in the suit filed by the plaintiff to protecther possession, defendant No.1 cannot get the relief of possession in hisfavour. It is submitted that even no counter claim was filed on behalf ofthe defendant No.1 to protect his possession, if any.

4.3 It is further submitted by the learned Advocate appearing onbehalf of the original plaintiff that the plaintiff proved by oral as well asdocumentary evidence that she is cultivating the suit land in question andthat she is in possession of the said land. It is submitted that on the otherhand defendant No.1 did not lead any evidence to prove his possession.It is submitted that no evidence was led by the defendant No.1 to provehis possession. It is urged that, once the plaintiff was found to be inpossession of the suit land, no error was committed by the trial court

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Agranting the relief of permanent injunction and the same is rightly affirmedby the First Appellate Court as well as the High Court.

4.4 It is further submitted by learned Advocate appearing on behalfof the original plaintiff that the High Court has rightly observed that therelief of permanent injunction sought by the plaintiff was a substantialBrelief and not a consequential relief.

4.5 Making the above submissions, it is prayed to dismiss thepresent appeal.

5. Heard the learned counsel for the respective parties at length.

C6. At the outset, it is required to be noted that the suit filed by theoriginal plaintiff was for cancellation of the registered Sale Deed dated17.06.1975 and for a declaration that the registered Sale Deed dated17.06.1975 is bogus and not binding to the plaintiff. While praying for thesubstantive relief of declaration that the aforesaid sale deed is not bindingon her, the plaintiff also prayed for return of the land ad-measuring 1-0Dguntha, which even according to the plaintiff was in possession of thedefendant No.1. The plaintiff also prayed for permanent injunction withrespect to the entire agricultural land ad-measuring 6 acres and 15gunthas, though even according to the plaintiff also the defendant No.1was handed over the possession of 1-0 guntha of land out of 6 acres andE15 gunthas of land.

6.1 On appreciation of the entire evidence on record, the trialcourt refused to pass the decree for cancellation of the registered saledeed and refused to grant a declaration as prayed. Therefore, so far ason the aspect of title of the land in question is concerned, the plaintiffFlost. On appreciation of evidence, the trial court held that the husband ofthe plaintiff executed the registered sale deed in favour of the defendantNo.1 for a value consideration. The judgment and order passed by thetrial court refusing to grant the decree of cancellation of the registeredsale deed and the declaration has attained finality. This is because noappeal was filed by the plaintiff.G

6.2 However, the trial court granted the permanent injunction infavour of the plaintiff restraining defendant No.1 from disturbing thepossession of the plaintiff with respect to 5 acres and 15 gunthas ofland. It was the defendant No.1, who preferred the appeal before theFirst Appellate Court and thereafter before the High Court challengingHthe decree for permanent injunction. The High Court by the impugned PADHIYAR PRAHLADJI CHENAJI (DECEASED) THROUGH L.R.S v. MANIBENJAGMALBHAI (DECEASED) THROUGH L.R.S AND ORS. [M. R. SHAH, J.]

judgment and order has observed that as relief for permanent injunction,by the plaintiff can be said to be a substantive relief, therefore, when theplaintiff is found to be in possession of 5 acres and 15 gunthas of land,the plaintiff is entitled to the relief of permeant injunction for protectingher possession.

7. Therefore, the short question, which is posed for theconsideration of this Court is, whether, in a case where the plaintiff haslost so far as the title is concerned and the defendant against whom thepermanent injunction is sought is the true owner of the land, whether theplaintiff is entitled to a relief of permanent injunction against the trueowner, more particularly, when the plaintiff has lost so far as the title isconcerned and can thereafter the plaintiff be permitted to contend thatdespite the fact that the plaintiff has lost so far as the title is concerned,her possession be protected by way of injunction and that the true ownerhas to file a substantive suit claiming the possession.

8. So far as the submission on behalf of the defendant No.1 thateven the suit for permanent injunction is barred by law of limitation andthe further submission of defendant No.1 that the registered sale deedwas executed on 17.06.1975 and immediately thereafter the name ofthe defendant No.1 was mutated in the Revenue record and thereafterall throughout the name of the defendant No.1 continued in the Revenuerecord as a cultivator and the suit was filed after a period of 22 years, isconcerned, it is true that there are concurrent findings by the trial courtas well as the First Appellate Court that the plaintiff is in possession ofthe disputed land in question. However, it is required to be noted that inthe Revenue record, right from 1976 onwards and after the registeredsale deed in favour of the defendant No.1, the name of the defendantNo.1 was mutated in the Revenue record and in the column of farmerand the cultivator, the name of the defendant No.1 is mentioned. Eventhe crops being cultivated by the cultivator are mentioned in the Revenuerecord. Thus, right from 1976 onwards till 1997 in the Revenue record,the name of defendant No.1 is mutated as an owner and cultivator.Nothing is on record to the effect that at any point of time and after theregistered sale deed was executed in favour of defendant No.1, theplaintiff paid any revenue in respect of the land in question. After theexecution of the registered sale deed in favour of defendant No.1, whichhas been believed by all the courts below, the name of defendant No.1was mutated in the Revenue record as an owner and cultivator and the

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Aplaintiff, who claims to be in possession of the land and cultivating thesame, is deemed to have the knowledge of the said entry.

8.1 In the case of Dilboo Vs. Dhanraji, (2000) 7 SCC 702, it isobserved and held by this Court that where there is a dispute that thesuit is filed beyond the period of limitation, the plaintiff would have toBaver and prove that the suit is within the period of limitation as prescribedand in the absence of any averment or proof to show that the suit iswithin time, it is the plaintiff who would fail. It is further observed thatwhenever a document is registered the date of registration becomes thedate of deemed knowledge. It is further observed that in other caseswhere a fact could be discovered by due diligence then deemedCknowledge would be attributed to the plaintiff because a party cannot beallowed to extend the period of limitation by merely claiming that he hadno knowledge.

8.2 Applying the law laid down by this Court in the aforesaidDdecision to the facts of the case on hand, it is noted that the registeredsale deed in favour of defendant No.1 is dated 17.06.1975 and thereafterimmediately the name of defendant No.1 – purchaser was mutated inthe Revenue record, which continued till the filing of the suit and thename of defendant No.1 is shown as an owner and cultivator and eventhe crop grown is also shown and when the plaintiff claims that she is inEpossession and cultivating the land, she would have known the abovefacts, if she had exercised due diligence and therefore as observed bythis Court, the plaintiff(s) can be said to have deemed knowledge of thetitle as well as possession of defendant No.1. It is to be noted that evenin the registered sale deed, it was mentioned that the possession of theFentire land in question has been handed over to defendant No.1 –purchaser. At this stage, it is required to be noted that the execution ofthe registered sale deed and the payment of full sale considerationmentioned in the registered sale deed has been believed and acceptedby all the courts below. Therefore, there was no reason for the trialcourt not to believe the averments in the registered sale deed of handingGover the possession to the defendant No.1 – purchaser. The relief ofpermanent injunction sought by the plaintiff as such was a consequentialrelief, which shall be discussed herein below.

8.3 Therefore, once the suit is held to be barred by limitationqua the declaratory relief and when the relief for permanent injunctionH

PADHIYAR PRAHLADJI CHENAJI (DECEASED) THROUGH L.R.S v. MANIBENJAGMALBHAI (DECEASED) THROUGH L.R.S AND ORS. [M. R. SHAH, J.]

was a consequential relief, the prayer for permanent injunction, whichwas a consequential relief can also be said to be barred by limitation.It is true that under normal circumstances, the relief of permanentinjunction sought is a substantive relief and the period of limitationwould commence from the date on which the possession is sought tobe disturbed so long as the interference in possession continuous.However, in the case of a consequential relief, when the substantiverelief of declaration is held to be barred by limitation, the said principleshall not be applicable.

9. Even otherwise on merits also, the Courts below have erredin passing the decree of permanent injunction restraining the defendantNo.1 from disturbing the alleged possession of the plaintiff. Assumingfor the sake of argument that the plaintiff is found to be in possession,in that case also, once the plaintiff has lost so far as the relief ofdeclaration and title is concerned and the defendant No.1 is held to bethe true and absolute owner of the property in question, pursuant tothe execution of the sale deed dated 17.06.1975 in his favour, the trueowner cannot be restrained by way of an injunction against him. In agiven case, the plaintiff may succeed in getting the injunction even byfiling a simple suit for permanent injunction in a case where there is acloud on the title. However, once the dispute with respect to title issettled and it is held against the plaintiff, in that case, the suit by theplaintiff for permanent injunction shall not be maintainable against thetrue owner. In such a situation, it will not be open for the plaintiff tocontend that though he/she has lost the case so far as the title disputeis concerned, the defendant – the true owner still be restrained fromdisturbing his/her possession and his/her possession be protected. Inthe present case, as observed hereinabove and it is not in dispute thatthe suit filed by the plaintiff for cancellation of the registered sale deedand declaration has been dismissed and the registered sale deed infavour of the defendant No.1 has been believed and thereby defendantNo.1 is held to be the true and absolute owner of the suit land in question.The judgment and decree passed by the trial court in so far as refusingto grant the relief for cancellation of the registered sale deed anddeclaration has attained finality. Despite the fact that the plaintiff haslost so far as the title is concerned, still the Courts below have grantedrelief of permanent injunction against the defendant No.1 – the absoluteowner of the land in question, which is unsustainable, both, on law aswell as on facts. An injunction cannot be issued against a true owner

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Aor title holder and in favour of a trespasser or a person in unlawfulpossession.

9.1 At this stage, the decision of this Court in the case ofJharkhand State Housing Board Vs. Didar Singh and Anr., (2019)17 SCC 692 is required to be referred to. In the said decision, it isBobserved and held by this Court that though a bare suit for injunction inthe absence of declaration relief would be maintainable and in each andevery case where the defendant disputes the title of the plaintiff, it is notnecessary that in all those cases, the plaintiff has to seek the relief. It isfurther observed and held that, however, when the defendant raises agenuine dispute with regard to title and when he raises a cloud over theCtitle of the plaintiff, then necessarily in those circumstances, plaintiffcannot maintain a suit for bare injunction.

9.2 In the present case, once the defendant No.1 was held to bethe true and absolute owner pursuant to the registered sale deed executedin his favour and the plaintiff was unsuccessful so far as the declaratoryDrelief is concerned, thereafter, it cannot be said that there was a cloudover the title of the plaintiff and/or even the defendant. Therefore, theonly relief which survived before the trial court was the consideration ofrelief of permanent injunction and having been unsuccessful in gettingthe relief of cancellation of the registered sale deed and the declarationEthereof, the relief of permanent injunction could not have been grantedby the trial court as well as by the first Appellate Court. This aspect ofthe case has been lost sight of by the High Court in the second appeal.

9.3 In the case of A. Subramanian Vs. R. Pannerselvam, (2021)3 SCC 675, it is observed by this Court that a person in possession ofFland in the assumed character of owner and exercising peaceably theordinary rights of ownership has a perfectly good title against all theworld but the rightful owner. Therefore, the plaintiff is not entitled to anyinjunction and/or protect his possession against the rightful owner, moreparticularly, when he fails to get the declaratory relief and the disputewith respect to the title comes to an end.G

10. Now, so far as the reliance placed upon the decision of thisCourt in the case of Anathula Sudhakar (supra) by the learnedAdvocate appearing on behalf of the original plaintiff in support of hissubmission that in a suit for permanent injunction to restrain the defendantto interfere with the plaintiff’s possession, the only thing the plaintiff willH

PADHIYAR PRAHLADJI CHENAJI (DECEASED) THROUGH L.R.S v. MANIBENJAGMALBHAI (DECEASED) THROUGH L.R.S AND ORS. [M. R. SHAH, J.]

have to establish is that as on the date of the suit, he was in lawfulpossession of the suit property and the defendant has tried to interfereor disturb his possession is concerned, what is observed by this Court inparagraph 15 is the “lawful possession” of the plaintiff. In the presentcase the plaintiff, who has failed to get any declaratory relief and thedefendant No.1 is held to be a true and absolute owner on the basis ofthe registered sale deed on payment of full sale consideration thereafterthe plaintiff’s possession cannot be said to be “lawful possession”.Therefore, the plaintiff is not entitled to any permanent injunction againstthe true owner in the instant case.

11. From the impugned judgment and order passed by the HighCourt, it appears that the High Court has not properly appreciated thedistinction between a substantive relief and a consequential relief. TheHigh Court has observed that in the instant case the relief of permanentinjunction can be said to be a substantive relief, which is clearly anerroneous view. It is to be noted that the main reliefs sought by theplaintiff in the suit were cancellation of the sale deed and declarationand the prayer of permanent injunction restraining defendant No.1 fromdisturbing her possession can be said to be a consequential relief.Therefore, the title to the property was the basis of the relief ofpossession. If that be so, in the present case, the relief for permanentinjunction can be said to be a consequential relief and not a substantiverelief as observed and held by the High Court. Therefore, once theplaintiff has failed to get any substantive relief of cancellation of the saledeed and failed to get any declaratory relief, and as observed hereinabove,relief of injunction can be said to be a consequential relief. Therefore,the prayer for permanent injunction must fail. In the instant case as theplaintiff cannot be said to be in lawful possession of the suit land, i.e., thepossession of the plaintiff is “not legal or authorised by the law”, theplaintiff shall not be entitled to any permanent injunction.

11.1 An injunction is a consequential relief and in a suit fordeclaration with a consequential relief of injunction, it is not a suit fordeclaration simpliciter, it is a suit for declaration with a further relief.Whether the further relief claimed has, in a particular case asconsequential upon a declaration is adequate must always depend uponthe facts and circumstances of each case. Where once a suit is held notmaintainable, no relief of injunction can be granted. Injunction may begranted even against the true owner of the property, only when the person

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Aseeking the relief is in lawful possession and enjoyment of the propertyand also legally entitled to be in possession, not to disposes him, exceptin due process of law.

12. Now, so far as the submission on behalf of the plaintiff thateven if the plaintiff failed to get the declaratory relief and relief forBcancellation of registered sale deed and her suit for the said reliefs cameto be dismissed and the plaintiff is found to be in possession and therefore,the only remedy available to the defendant No.1 would be to file asubstantive suit to get back the possession is noticed only to be rejectedoutright. It is the contention on behalf of the plaintiff that once the plaintiffis found to be in possession, her possession cannot be disturbed exceptCin due process of law and the defendant No.1 though may be the trueowner has to file a substantive suit for recovery of possession. Whileconsidering the aforesaid submission, the decision of this Court in thecase of Maria Margarida Sequeira Fernandes Vs. Erasmo Jackde Sequeira, (2012) 5 SCC 370 is required to be referred to. What isDmeant by due process of law has been explained by this court in paragraph79, which reads as under:- “79. Due process of law means that nobody ought to becondemned unheard. The due process of law means a person insettled possession will not be dispossessed except by due processEof law. Due process means an opportunity to the defendant to filepleadings including written statement and documents before thecourt of law. It does not mean the whole trial. Due process of lawis satisfied the moment rights of the parties are adjudicated uponby a competent court.”FIn the said decision, this Court has approved the following findingsof the High Court of Delhi in Thomas Cook (India) Ltd. Vs. HotelImperial (2006) 88 DRJ 545 :- “28. The expressions ‘due process of law’, ‘due course of law’and ‘recourse to law’ have been interchangeably used in theGdecisions referred to above which say that the settled possessionof even a person in unlawful possession cannot be disturbed‘forcibly’ by the true owner taking law in his own hands. All theseexpressions, however, mean the same thing—ejectment fromsettled possession can only be had by recourse to a court of law.HClearly, ‘due process of law’ or ‘due course of law’, here, simply PADHIYAR PRAHLADJI CHENAJI (DECEASED) THROUGH L.R.S v. MANIBENJAGMALBHAI (DECEASED) THROUGH L.R.S AND ORS. [M. R. SHAH, J.]

mean that a person in settled possession cannot be ejected withouta court of law having adjudicated upon his rights qua the trueowner.

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Now, this ‘due process’ or ‘due course’ condition is satisfied themoment the rights of the parties are adjudicated upon by a courtof competent jurisdiction. It does not matter who brought the actionBto court. It could be the owner in an action for enforcement of hisright to eject the person in unlawful possession. It could be theperson who is sought to be ejected, in an action preventing theowner from ejecting him. Whether the action is for enforcementof a right (recovery of possession) or protection of a rightC(injunction against dispossession), is not of much consequence.What is important is that in either event it is an action before thecourt and the court adjudicates upon it. If that is done then, the‘bare minimum’ requirement of ‘due process’ or ‘due course’ oflaw would stand satisfied as recourse to law would have beentaken. In this context, when a party approaches a court seeking aDprotective remedy such as an injunction and it fails in setting up agood case, can it then say that the other party must now institutean action in a court of law for enforcing his rights i.e. for takingback something from the first party who holds it unlawfully, and,till such time, the court hearing the injunction action must grant anEinjunction anyway? I would think not. In any event, the ‘recourseto law’ stipulation stands satisfied when a judicial determination ismade with regard to the first party’s protective action. Thus, inthe present case, the plaintiff’s failure to make out a case for aninjunction does not mean that its consequent cessation of user ofthe said two rooms would have been brought about withoutFrecourse to law.”

12.1 Applying the law laid down by this Court in the aforesaiddecision to the facts of the case on hand and once the rights of theparties are adjudicated and the defendant No.1 is held to be the trueowner on the basis of the registered sale deed and on payment of fullsale consideration, it can be said that due process of law has been followedand thereafter the plaintiff is not entitled to any permanent injunctionagainst the true owner.

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A13. In view of the above discussion and for the reasons statedabove, all the Courts below have erred in granting permanent injunctionin favour of the plaintiff and against the defendant No.1, who is the trueowner. After having held that the plaintiff had no title and after dismissingthe suit qua the cancellation of the registered sale deed and thedeclaration, the plaintiff is not entitled to relief of permanent injunctionBagainst defendant No.1 – the true owner.

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14. In view of the above and for the reasons stated above, presentAppeal Succeeds. The judgment and decree passed by the trial courtconfirmed by the First Appellate Court and the High Court by theimpugned judgment and order are hereby quashed and set aside.CConsequently, the suit filed by the plaintiff for permanent injunction againstthe defendant No.1 stands dismissed. Meaning thereby, the entire suitfiled by the plaintiff stands dismissed.

Present Appeal is accordingly Allowed. However, in the factsand circumstances of the case, there shall be no order as to costs.

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Devika Gujral

Appeal allowed.

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