N. G. NANDI, J.

(1). IN this suit for perpetual injunction, seeking to restrain the defendants from dispossessing the plaintiff from the land comprised in Khasra No. 25/1, totally admeasuring (4-16) situated within the revenue estate of Village Devli, National Capital Territory of Delhi, the plaintiff by IA No. 4719/95 under Order 39 Rule 1 and 2 Civil Procedure Code seeks to restrain the defendants from interfering, in any manner, with the enjoyment of the actual physical cultivator possession of the suit land pending the hearing and disposal of the suit.

(2). In the plaint, it is averred that the plaintiff is the recorded Bhoomidar in possession of the agricultural land, comprised in Khasra No. 14/21 situated within the revenue estate of Village Devli, Tehsil Mehrauli in National Capital Territory of Delhi since the purchase on 18. 10. 82; that defendant No. 1 is the recorded Bhoomidar of the land comprised in Khasra No. 25/1 (4-16), situated within the revenue estate of Village Devli, Tehsil Mehrauli in National Capital Territory of Delhi (hereinafter referred to as "the suit land"); that defendant No. 1, after having purchased the suit land had left the said land vacant and unattended; that the villagers and jhuggi dwellers broke the boundry wall and started using the place as a dump yard and public lavatory; that it caused great inconvenience, diconfort and nuisance to the plaintiff as the suit land adjoins the land of the plaintif, i. e. land comprised in Khasra No. 14/21; that the suit land having been put to use of a dump yard and a public lavatory, became a source of filthy and foul smells and to avoid the situation and to save the adjoining land (suit land) being used as a dump yard and a public lavatory, the plaintiff in the year 1988, got the suit land cleared and repaired the boundary wall at his cost and expenses; that to avoid the suit land from being used as a dump yard and a public lavatory, the plaintiff in the year 1989 started cultivating the suit land and that since then within the actual physical cultivatory possession of the suit land.

(3). Thus, according to the plaintiff as the suit land was being used as a dump yard and public lavatory causing great inconvenience, discomfort and nuisance to the plaintiff, the plaintiff in the year 1989 started cultivating the suit land and since then within the actual physical cultivatory possession of the suit land. Thus, on plaintiffs own say, he has been a tress-passer or an unauthorised occupant, for the reasons aforestated in the suit land from 1989. Admittedly the suit land is adjescent to the plaintiffs land in Khasra No. 14/21 and that the defendant is the recorded Bhoomidar of suit land which is comprised in Khasra No. 25/1 (4-16).

(4). IT has been submitted by Mr. Vashisht, counsel for the plaintiff, that the plaintiff has been in actual cultivatory physical cultivatory physical possession of the suit land and that the photographs on record show the plaintiffs possesion of the suit land and even the local commissioners report indicate the plaintiffs prima-facie possession on the suit land.

(5). The local commissioners report suggests that he was taken to the land, which was on the back side of the big structure; that the suit land which was an open space, was covered and protected by the boundary wall made-up of bricks and the whole structure is protected which, on plaintiffs say, belonged to him; that thereafter, the local commissioner was taken to the plot in question. He noticed the presence of one Mr. K. B. Jawa son of late Shri B. R. Jawa and Mr. Surjit Singh s/o S. Laxman Singh, engaged for security purpose by the plaintiff since 16. 5. 95 and two other persons Mr. Mithilesh and Mr. Raj Kumar, working under Mr. Jawa and Mr. Surjit Singh. The local commissioner has noted that the plot in question was lying vacant and not used for any purpose and as far as crop/materials are concerned - it is observed that it is difficult to say that the plot is used for crop growing purposes because nothing was found on the plot which suggests that the plot is used for farming purposes. No farming tools, nor any labourer were found on the spot. In the middle of the plot, there was a burnt patch according to the plaintiff, told to the local commissioner. It is also noted that it appeared that previously some crop must have existed as the land in question appeared tilled as there were grooves over it. Thus, according to the commissioners report, nothing was found on the suit land to suggest that the land is used for farming purposes, may be that on previous occasions, the plot was used for farming purposes.

(6). The report of the local commissioner, taking the same as it is, would not establish prima-facie possession of the suit land by the plaintiff.

(7). It has been submitted by Mr. Rohtagi, counsel for the defendant, that the government record does not indicate the name of the plaintiff as the cultivator or the person in possession of the suit land; that there is nothing to indicate prima-facie that the defendant was ousted by the plaintiff from the suit land; that local commissioners report does not suggest entry to suit land except from the plaintiffs own land which is adjacent to the suit land.

(8). On behalf of the plaintiff, reliance has been placed on the certified copy of the suit/application under Section 85 of the Delhi Land Reforms Act, 1954 at page 2 of the list of document dated 27. 11. 95. In the said suit/application, the present plaintiff has prayed that he be declared to be the Bhoomidar of the suit land stating himself to be in actual physical cultivatory possession thereof since 1988. It need hardly be said that mere averment in the application u/s. 85 of the Delhi Land Reforms Act for being declared as the Bhoomidar, alleging to be in actual physical cultivatory possession of the suit land, would not be a prima-facie evidence of the plaintiffs actual physical possession of the suit land.

(9). Plaintiff also relies on the report of the Patwari, dated 16. 3. 95, which is at page 46 of the said list. Perusal of the same suggests that the Patwari visited and inspected the suit land of which, defendant No. 1 is the proprietor; that the plaintiff has submitted application for recording his possession of the suit land and that as per the order of the officers, there is restriction for issuing form P-5 and the applicant has attached the decision of the High Court with the application and stated that in accordance with the decision, Form P-5 be issued whereasno order has been received from the officers so far with regard to this decision; that as such, form P-5 can not be issued in favour of the applicant and that the enquiry has also been done with the neighbours regarding the possession and they informed (emphasis supplied) that for the past 5-6 years, Gurmit Grewal s/o R. S. Garewal has been in the possession of the land comprised in Khasra number in question and he has sown the crop in it.

(10). Admittedly, government record doesnot indicate the plaintiff to be in actual and cultivatory physical possession of the suit land. To indicate plaintiffs possession, prima-facie, of the suit land as far as the report of the Patwari, referred to above is concerned, on enquiry, the neighbours stated the plaintiff to be in physical possession for the last 5-6 years and that he had sown the crop on it. The statement, if any, by the neighbourers with regard to the physical possession of the suit land by the plaintiff to the Patwari would be nothing but hear-say. If the neighbours could tell the Patwari about the physical possession of and sowing crop on the suit land, then the plaintiff could have as well got filed affidavit by the neighbours in this proceeding suggesting the actual and physical cultivatory possession of the plaintiff of the suit land but that is not to be so on record. If the plaintiff had taken the crop on the land, as averred in the plaint, then there would be some statement suggesting as towhat he did with the crop. He would havemade purchases of the material for sowing operations on the suit land. That is also not to be found on record.

(11). THE suit land is an open land. On plaintiffs own say, in plaint para 3, the villagers and jhuggi dwellers broke the boundary wall and started using the place as dump yard and public lavatory. It is pertinent to note that it is not the say of the plaintiff that the boundary wall was constructed by him around the suit land for its protection, which would prima-facie indicate that the boundary wall which is alleged to have been broken by the jhuggi dwellers and villagers, appears to have been constructed by defendant No. 1. The photograph produced on record alongwith the local commissioners report at page 13 bottom, indicates the portion of the boundary wall having been broken and bricks/pieces of bricks etc. lying at the site. Question would arise as to the broken boundary wall with bricks and its pieces lying at that very place, would be suggestive of what If the boundary wall was broken by jhuggi dwellers and villagers before 1988-89, then brick pieces and the bricks would not be seen lying in April, 1995 near the broken portion of the boundary wall. It may be appreciated that the suit land is an open land with boundary wall as aforestated. It need hardly be said that in case of open land possession must follow the title. The title of the suit land is admittedly with defendant No. 1. The physical possession of the immoveable property must be referrable to the lawful and valid title in order that the possession is a lawful possession.

(12). Considering prima facie the evidence on record, I am not inclined to hold that the plaintiff is in prima-facie actual and physical cultivatory possession of the suit land. However, assuming that the plaintiff is in actual and physical cultivatory possession of the suit land even then on plaintiffs own say, he entered upon the suit land as the suit land was used as a dump yard and public lavatory by the villagers and the same caused great inconvenience, discomfort and nuisance to the plaintiff and so in the year 1989, plaintiff started cultivating the suit land. Thus, according to the plaintiff he is admittedly a tress passer/unauthorised occupant in the suit land and he has tried to justify his action by assigning reasons of the user of the suit land as a dump yard and public lavatory. I am not, for the present purpose, called upon to consider the merits or otherwise of the reason given by the plaintiff. The fact remains that the plaintiff is admittedly a tress passer/unauthorised occupant in the suit land and now, the question would, therefore, be whether the illegal/unauthorised possession, should be protected by the equitable relief of injunction or not.

(13). In the case of Mahadeo Salvaram Shalke and Ors. versus The Puna Municipal Corporation and Anr. reported in JT 1995 (2) SC 504 [LQ/SC/1995/145] , while dealing with the question of grant of injunction against a true owner, at the instance of a person in unlawful possession in the case of acquisition of the building for the purpose of removing the traffic congestion for widening the road, the Supreme Court held that "the appellants were in unlawful possession and they cannot seek any injunction against the rightful owner and there is neither balance of convenience nor irreparable injury caused to appellants. It is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession. " In para 9, it is observed that "the order of eviction was passed in due process of law and had become final and, therefore, no right was created in favour of the appellants to claim possession. Their possession is unlawful and that therefore, they can not seek any injunction against the rightful owner for evicting them. There is, thus, neither balance of convenience nor irreparable injunry would be caused to the appellants. "

(14). In the instant case, the plaintiff, alleges his possession from 1988-89, but there is no prima- facie evidence for the same. The report of Patwari, referred to above, is of dated 16. 9. 95. Local commissioner took the photograph page 13 (bottom) on 12. 6. 95 and the statement before the local commissioner by Mr. Surjit Singh (para 2 of Local Commissioners report) about plaintiff retaining him for security purpose from 16. 5. 95, would not prima facie suggesting standing/established possession, even unauthorised/ unlawful, of the plaintiff in the suit land, which may be required to be protected till eviction by due process of law. Under the circumstances, following the principle laid down in the Supreme Court judgment (supra), the plaintiff would not be entitled to the equitable relief of injunction against defendant No. 1, who is admittedly the true owner of the suit land for the reasons aforestated.

(15). It, therefore, follows from the above that the plaintiff would not be entitled to the equitable relief of injunction for the reason of absence of prima-facie case as aforestated and also for the reason of he being a tress passer/unauthorised occupant, as aforestated, against the true owner, i. e. defendant No. 1.

(16). IN the result, IA 4719/95 being devoid of merit, fails and the interim order dated 6. 7. 95 as also the modified order dated 19. 6. 95 stands vacated. IA 6791/95 is allowed.