Judgment:
D.P. Wadhwa, J.
(1) The defendant by this petition seeks revision of the order dated 14.7.1988 of the learned Additional Senior Sub Judge whereby he dismissed the appeal of the defendant against the order dated 3.11.1987 of the learned Sub Judge, by which order the defendant was restrained by means of a temporary injunction from interfering in certain portion of the property bearing No. 732-33 Faiz Road, Karol Bagh, New Delhi, in occupation of the plaintiff.
(2) The plaintiff, now respondent before me, filed on 12 10.1987 a suit for permanent injunction against the defendant praying that the defendant be restrained from interfering in the portion of the property in possession of the plaintiff. The plaintiff alleged that Jagan Nath, her maternal grandfather, was the allottee of this property from the custodian of evacuee property. Jagan Nath died some time in 1961 leaving behind his widow Ram Kaur and his sons and daughters. Ram Kaur died in May 1985, but she was living alone in the suit property. As she was not keeping good health, she asked her daughter, mother of the plaintiff, to send the plaintiff to live with her. It was in 1975 and since then the plaintiff has been living with Ram Kumar, her maternal grandmother, as her family member. A brother of the plaintiff, stated to be deranged and by the name Parvesh Kumar, is also stated to have been living with Ram Kaur and the plaintiff in the suit property. Then the plaintiff alleged that Ram Kaur left a will dated 30.1.1.1984 whereby she bequeathed all her properties to the plaintiff including her rights in the suit property. The defendant became owner of whole of the property bearing No. 732-33, Faiz Road, and he got possession of various portions of the property and demolished the same with intent to make a new building. The defendant in July 1987 approached the plaintiff and offered her money to hand over the possession of the portion with her. She did not agree. On 7.10.1987, some labourers came to demolish the portion of the property in the possession of the plaintiff but on threat made by the plaintiff that she would call the police, they left. On the following day, the defendant visited the property in question and threatened the plaintiff that he would get possession by force. Apprehending that she might be forcibly dispossessed, the plaintiff filed the present suit. She also filed an application under Order 39. Rules 1 and 2 of the Code of Civil Procedure 1908 (for short 'the Code'), seeking an ad-interim ex-parte injunction. The learned Sub Judge, it appears, appointed a local commissioner to report if the portion of the property alleged by the plaintiff to be in her possession still existed at the site. The learned Sub- Judge did not grant any ex-parte injunction though he issued notice to the defendantforl5.10.1987. After perusing the report of the local commissioner, the learned Sub Judge directed maintenance of status quo regarding possession and construction. This was on 14.10.1987. Again, on 15.10.i987, at the instance of both the parties, another local commissioner was appointed to inspect the premises and to report about the existing situation/ position of the undiminished portion. This report of the second local Commissioner is dated 16.10.1987, and in this he described that one room marked C-9 in the site plan prepared by the local commissioner and measuring 26' X 13.5' was intact while the other portions of the property had either been demolished or partially demolished.
(3) The defendant filed his written statement. He stated that the plaintiff had no locus standi to file the present suit and that she neither had any right nor did she possess any portion of the property. The will of Ram Kaur was alleged to be of no effect as she herself had no right or title in suit premises. It was stated that the plaintiff was merely an unlawful squatter in front of the property and that suit was filed mala fide to extract and to fleece money from the defendant and it was an instance to blackmail the defendant by the plaintiff. It was stated that whole of the property was purchased by one Shri Rajinder Singh Bagga, also an occupant in a portion of the property, when his bid was accepted by, the Central Government under the Displaced Persons (Compensation and Rehabilitation) Act 1934 (for short 'the Act'). There was some litigation by other bidders/occupants and it was in Letters Patent Appeal in this court that ultimately Rajender Singh Bagga succeeded. Then an appeal was taken to the Supreme Court. Though the Supreme Court did not stay the operation of the judgment of the High Court but it directed stay of dispossession of the appellants on the condition of their continuing to deposit rent of their respective portions in the Supreme Court. Rajender Singh Bagga died in June 1981 and his sole , i.e. his widow and daughter, sold the property to M/s Ghawri Construction Udyog Ltd. and handed over peaceful and vacant physical possession of the property to the vendee, the company. The defendant happens to be a director of that company. It was stated that when the property was purchased by the company there no was occupant living in it and it was vacant, Then, it was stated that neither the plaintiff nor Ram Kaur was a party in the Supreme Court. As noted above, the plaintiff was alleged to be a squatter in front of the property. The assertion of the plaintiff that the was approached and offered some money was denied. Right of the company to demolish the suit property and make reconstruction was asserted. It was denied that the plaintiff was either living in the suit property or ever lived there.
(4) Certain documents were brought on record by the parties. One of such documents is a letter written by Sohan Lal, son of Jagan Nath, to his advocate in the Supreme Court with reference to Special Leave Petition . No. 5423/80, stating that he had compromised with the legal representatives of Rajender Singh Bagga for certain consideration and that he had decided to withdraw the case. The advocate was asked to take steps to withdraw the case. Similar letters have been addressed by other occupants to their respective counsels in the Supreme Court. The documents filed by the plaintiff show that Jagan Nath was an allottee of certain portion of the property bearing No. 732-33, and he continued to be so till his death. The plaintiff also brought on record a photocopy of the Ration Card which is dated 1.1.1983 in the name of Smt. Ram Kaur, resident of 732, Faiz Road. Three members have been shown in this card who are Ram Kaur, Parvesh Kumar and the plaintiff. The name of Ram Kaur appears to have been struck off subsequently, perhaps on her death.
(5) I may also note that at a subsequent stage of the proceedings in the trial court Sohan Lal, son of Ram Kaur, filed an application under Order 1, Rule 10 and Sec 151 of the Code. He alleged that he along with his family and mother Ram Kaur. was living in the suit premises and that after the death of his mother, he was in occupation of two rooms till mid September 1987 wherein he had kept some of his luggage. He gave possession of one room to the heirs of ser Singh Bagga in the end of September 1987. The plaintiff approached the applicant, her real maternal uncle, on or about 2nd or 3rd October 1987 for temporary accommodation for one Om Parkash Sachdeva, her cousion, for 3/4 days. This could be in respect of one room in the property in question which was in possession of the applicant Sohan Lal. The applicant then alleged that after taking key of the room from him. the plaintiff herself started living there and set up a forged will of his late mother Ram Kaur. Sohan Lal also alleged that at no point of time prior to October 1987 was the plaintiff residing either with him or his mother at the suit premises. Then, in the present revision, the defendant has filed two letters (marked Z-l and Z-2), one addressed to the Assistant Commissioner of Police, Paharganj, New Delhi, and the other to the S.H.O., Police Station, Deshbandhu Gupta Road, New Delhi. Both letters are to the same effect. The one addressed to the S.H.O. is dated 12.10.h87 and the other addressed to the Assistant Commissioner of Police is dated 18.10.1987. In this letter, the defendant alleged that he had purchased the property from Davinder Kaur and Varinder Kaur, heirs of Rajender Singh Bagga, in March 1987, and he took over possession of the property. One Sohan Lal was in possession of one of the rooms in the property and while vacating possession of that room, he had told the defendant that his niece Sushma Ahuja (the plaintiff) had come to stay with him for a short period and would vacate the same either on the day he vacated the room or a little later. The plaintiff having come to know that Sohan Lal had vacated after accepting compensation money, started delaying vacating the room. Ultimately, she demanded a huge amount for handing over vacant possession of the room. The defendant agreed to pay Rs. 50,000.00 in advance, which, in fact, he paid and the balance after she had vacated the room. The plaintiff promised to vacate the room on 9.10.198 / and when she was approached with the balance money she became more greedy. She even lodged a report with the police station that the defendant had been harassing her and wanted to forcibly evict her from the room. The letter further recites that Sub Inspector Sultan Singh made inquiries and found the complaint of the plaintiff false. The defendant then wrote that he had decided to pull down the structure in his possession which adjoined the room in possession of the plaintiff The defendant also complained in this letter that the plaintiff had threatened that in case he demolished any other portion of the property she would create scene by tearing off her clothes and injure herself involving the defendant in a false case.
(6) As noted above, the trial court decided the application of the plaintiff filed under Order 39, Rules 1 and of the Code on 3.11.1987. He took into consideration the relevant facts of the case and came to the conclusion that the plaintiff had a prima facie case in her favor and that in case the room in her possession was demolished as threatened by the defendant, she would suffer an irreparable loss and that the balance of convenience was also in her favor. He accordingly, allowed the application and restrained the defendant from interfering in the portion of the property in her possession and shown in red colour in the site plan filed with the plaint. Aggrieved, the defendant filed an appeal which was dismissed by order dated 14.7.1888 and the order of the trial court was affirmed. The appellate court, however, directed, considering the facts and circumstances of the case, that the 'plaintiff shall close her evidence within three effective close hearing to be given by the trial courts and in case, the plaintiff does not her evidence within three effective hearings, the Id. trial court shall close the evidence of the plaintiff'. Now, the defendant has filed this revision under Section 115 of the Code.
(7) For this court to exercise jurisdiction under Section 115 of the Code, it must appear that the subordinate court exercised jurisdiction not vested in it by law or failed to exercise a jurisdiction so vested, or acted in the exercise of its jurisdiction illegally or with material irregularity, this power to interfere is again circumscribed by the proviso to sub Section (1) of section 115, which is as under :
'Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where- (a) the order, if it had been made in favor of the party applying for revision, would have finally disposed of the suit or other proceeding, or (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.'
(8) In Smt. Rajbir Kaur & Aw. v. M/s. S. Chokesiri & Co. : AIR1988SC1845 , the Supreme Court as recently as on 9.8.1988 observed a& under :
'The scope of the revisional jurisdiction depends on the language of the statute conferring the revisional jurisdiction. Revisional jurisdiction is only a part of the appellate jurisdiction and cannot be equated with that of a full-fledged appeal. Though the revisional power-depending upon the language of the provision-might be wider than revisional power under section 115 of the Code of Civil Procedure, yet, a revisional Court is not a second or first appeal. When the findings of fact recorded by the Courts-below are supportable on the evidence on record, the revisional Court must, indeed, be reluctant to embark upon an independent reassessment of the evidence and to supplant a conclusion of its own, so long as the evidence on record admitted of and supported the one reached by the Courts-below With respect to the High Court, we are afraid, the exercise made by it in its revisional jurisdiction incurs the criticism that the concurrent-finding of fact of the Courts-below could not be dealt and supplanted by a different finding arrived at on an independent re-assessment of evidence as was done in this case.'
(9) In Terene Traders v. Ramesh Chandra Jamnadas & Co. and another AIR 1987 Sc 1492 on the question of jurisdiction under Section 115 of the Code, the Supreme Court observed that in that case there was no occasion for the High Court to have granted temporary injunction which had been refused earlier by the Bombay City Civil Court. The Supreme Court held that it was not the case that the City Civil Court acted either illegally or with material irregularity in dismissing the plaintiff's application for temporary injunction and that being so, the High Court could not have invoked its jurisdiction under Section 115 of the Code. Reference was made to another decision of the Supreme Court in Hindustan Aeronautics v. Ajit Prasad : (1972)ILLJ170SC wherein the Supreme Court made the following observations:
'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. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Civil Procedure Code.'.
(10) In these circumstances, in the present case. it cannot be said that there was not enough material on record for both the courts below to come to the conclusion that the plaintiff did have a prima facie case and that balance of convenience was in her favor and that she would suffer irreparable loss if she was dispossessed from the property in question and the property also demolished during the pendency of the suit. I am not sitting in appeal to reappraise the facts which have come on record. Powers of the High Court while exercising its revisional jurisdiction under Section 115 of the Code are quite limited. Both the courts have exercised their jurisdiction as vested in them by law, and it cannot be said that they acted in exercise of that jurisdiction either illegally or with material irregularity. I, thereforee, need not refer to the proviso to sub-section (1) of Section 115 of the Code which has been quoted above.
(11) Mr. Nayar, appearing for the petitioner, contended that the plaintiff was a rank trespasser and that she had no legal right to retain possession of the suit property, she not being a member of the family of Ram Kaur. He said that she had set up a foraged will, and, in any case, Ram Kaur could not have bequeathed her rights whether as an allottee or otherwise in favor of the plaintiff who was not her class I heir. Mr. Nayar also said that the Ration Card; on which the plaintiff had relied, was a fabricated document, and further that the plaintiff had not come to the court with clean hands inasmuch as she laid her claim to more area in the house than, in fact, what had been allotted to Jagan Nath, her maternal grandfather.
(12) Having taken the view that this is not a case for this court to exercise jurisdiction under Section 115 of the Code. I do not think I should examine any of the contentions raised by Mr. Nayar lest it prejudices the case of either of the parties in the trial court. I may, however, notice a few decisions cited at the Bar. In Mohan Lal & Ors. v. State of Punjab & Ors. 1970 Rcj 95 the Supreme Court observed that under our jurisprudence even an unauthorised occupant could be evicted only in the manner authorised by law and this was the essence of the rule of law. In Shakuntla v. Hira Nand Sharma AIR 1986 Delhi 17 this court observed that if there was one principle of law which stood out in our jurisprudence, it was that possession should prima facie be protected and that once a person was shown to be in possession he was not to be dispossessed otherwise than by legal means and that this was part of the rule of law. It was further observed that to some extent, even a trespasser or wrongdoer was protected. This was a case where the tenant bad filed a suit for permanent injunction to prevent the landlord from evicting him and the trial court granted temporary injunction which order was ultimately upheld by this court. In Alagi Alamelu Achi v. Ponniah Mudaliar : AIR1962Mad149 , the court held that a person in wrongful possession was not entitled to injunction against the lawful owner. But then this judgment was given in the second appeal after the suit had been finally decided. It may not, thereforee, be of relevance in the present case before me. In New Rama Motors v. A.N. Khanna (1985) D.L.T 3 this court, while refusing to exercise jurisdiction under Section 115 of the Code, agreed with the first appellate court that the petitioners had failed to show any prima facie case requiring the court to exercise its discretionary power in their favor. The court also observed that the proposition that possession should not be disturbed without due process of law was always to be understood in the special context. In that case, the respondent found that the petitioners had committed trespass on his property and thereforee lodged a report with the police. After some days, the respondent again filed a first information report with the police. The court thus observed that the respondent was following due process of law to get his right vindicated in approaching the police. In Chandu Lal v. Municipal Corporation of Delhi : AIR1978Delhi174 , a Pull Bench of this court had to say as under :-
'Temporary injunction sought by the petitioners could be granted, if their case was covered by the three well-established principles, namely, (1) on making out a prima facie case (2) on showing balance of convenience in their favor, in that the refusal of the injunction would cause greater inconvenience to them, and (3) whether on refusal of the injunction they would suffer irreparable loss. Granting an injunction is a matter of discretion and in its exercise the Court has to satisfy itself whether the petitioners have a triable case. Before invoking the jurisdiction of the Court to seek temporary injunction the petitioners were bound to show that they have a legal right and that there was an invasion of that right. They have failed to show a legal right. Facts and circumstances on the contrary, prima facie show that the petitioners on the revocation of the license are trespassers, there exists no justification for allowing them to continue perpetuating their unlawful act.'
In that case the court was dealing with the question of nature of possession of a kiosk which had been allotted to the petitioner near a certain bus stop. The court was of the view that on acquiring liberty to occupy the kiosk possession of it could not have passed to the petitioner, and that the petitioner being a licensee, legal possession all along remained with the respondent Corporation. On revocation of the license, the petitioner ceased to enjoy the liberty to continue to occupy the kiosk so as to drive the Corporation to evict him in due course of jaw, and it could not be said that the petitioner's possession was 'settled possession'. The words ''settled possession' were used with reference to a decision of the Supreme Court in Puran Singh & Ors. v. State of Punjab : AIR1975SC1674 which in turn. had relied on its earlier decision in Munshi Ram v. Delhi Administration AIR 1968 Sc 702 The judgment of the Supreme Court was rendered on the interpretation of Section 97 of the Indian Penal Code on the right of private defense of person and property. In this case, the accused had trespassed on the land of the complainant about a month earlier to the data of the occurrence and had taken possession thereof to the knowledge of the complainant. The accused had also shown wheat crop on the land in question. The court observed that in the circumstances, the accused's was 'settled possession' and could exercise right of private defense against the complainant who knew fully well that he had been dispossessed by the accused. The court held that where a trespasser was in settled possession of the land, he was not liable to be evicted except in due course of law and that he was further entitled to resist or defend his possession even against the rightful owner who tried to dispossess him. The only condition that was laid by the Supreme Court was that the possession of the trespasser must be 'settled possession'. The court explained as to what would be 'settled possession', but then that would depend on the facts and circumstances of each case.
(13) In the present case, the courts below have, in effect, prima facie, taken the view that the plaintiff was residing in the suit premises at least from 1.1.1983 with her maternal grandmother and continue to live there even after her death.
(14) Having set out the principles of law, no strait-jacket formula can be evolved which could be said to be applicable in all situations. Different considerations would arise from case to case and the weight to be attached to them. Rather, I would say at this stage of the trial the court has to take only a broad view of the matter. The three basic principles for grant of temporary injunction have again and again been reiterated by the courts. These have been applied by both the courts below and call for no interference in revision. It could well be that a different view was possible at least on the question of legal possession but that certainly is no ground to interfere in the exercise of jurisdiction under Section 115 of the Code.
(15) This petition, thereforee, fails and is dismissed with costs, Counsel's fee Rs. 500.00.