For Perpetual Injunction Plaintiff Must Prove Actual Possession Of Property On Date Of Filing Of Suit: Supreme Court

The Court reiterated that in a suit for recovery of possession, one of the essential conditions is (i) entitlement, (ii) manner of entitlement, (iii) specifics on the date and mode of dispossession, and conversely (iv) what is the nature of possession claimed by the defendant, and how it is illegal.

​The Bench of Justice Pankaj Mithal and Justice SVN Bhatti observed, “The suit is one for perpetual injunction, alternatively for recovery of possession. The plaintiff for the relief of perpetual injunction, along with prima facie case, balance of convenience and irreparable loss, must also prove the actual possession of the suit schedule on the date of filing of the suit. It is axiomatic that possession on the date of filing the suit is an essential requisite for granting perpetual injunction. The findings recorded are that the plaintiff was not in possession of the suit schedule property.”

AOR Mohit D. Ram appeared for the Appellant, while Advocate Govind Goel appeared for the Respondents.

Facts of the Case

The original suit was filed by Sham Sunder (now deceased and represented by his legal representatives) in 1990 before the Sub Judge 1st Class, Una. The litigation centred on agricultural land located in Village Lohara, Tehsil Amb, District Una. Initially, the Plaintiff/Appellant sought a perpetual injunction to prevent the defendants from interfering with his possession. However, the plaint was later amended to include a prayer for the recovery of possession from the Defendants/Respondents.

The Plaintiff/Appellant asserted ownership and exclusive Hisadari possession of the land, claiming the Defendants/Respondents are strangers with no legal rights to the property. It was alleged that the Defendants/Respondents, using their influence, threatened his possession and refused to recognize his title, which necessitated the legal action.

The first Defendant contested the suit, claiming she is in possession of the land through her late husband, Roshan Lal. She argued that following Roshan Lal’s death decades ago, her father-in-law (acting as the Karta of the family) granted her the right to enjoy the property in lieu of maintenance. She maintains that this maintenance right ripened into absolute ownership under the law.

The Trial Court dismissed the suit in 1992, finding against the Plaintiff/Appellant. While the First Appellate Court reversed this decision in 1998 and ruled in favor of the Plaintiff/Appellant, the High Court subsequently allowed the Second Appeal, restoring the dismissal. Consequently, the Plaintiff/Appellant's legal representatives have now brought this Civil Appeal to the Supreme Court.

The High Court found that the First Appellate Court erred in concluding that the suit land was not given to Soma Devi for maintenance. The High Court concluded that her father-in-law had granted the land in lieu of maintenance following the death of her husband. The High Court held that the right to maintenance is a pre-existing right under Shastric Hindu Law. Relying on Section 14(1) of the Hindu Succession Act, 1956, the High Court held that Soma Devi’s limited interest in the property acquired in lieu of maintenance automatically ripened into absolute ownership.

The High Court emphasised that Section 14(1) is of wide amplitude and covers every kind of acquisition of property by a female Hindu, regardless of whether it was possessed before or after the commencement of the Hindu Succession Act.

The High Court also rejected the Plaintiff/Appellant's claim of succession based on a Will executed by his grandfather, holding that the plea regarding the Will was not taken in the original plaint but was introduced for the first time in the replication.

Contention of the Parties

The Plaintiff/Appellantcontended that the High Court committed an illegality by not recognising the right of the Plaintiff/Appellant to a 1/6th share in the plaint schedule. The Plaintiff/Appellant's name is entered in the revenue record, and the possession of the first defendant is Hisadari possession of the Plaintiff/Appellant. The alternative prayer for recovery of possession should have been entertained inasmuch as the first defendant failed to establish her plea that the suit schedule was put in her possession towards maintenance. Since the relationship between the parties is not in dispute, the recovery of possession should have been decreed.

The Respondent/First Defendant argued that the Plaintiff/Appellant, having failed to prove possession, has also failed to plead and prove, as to how the claim for recovery of possession in a suit filed in 1990 is maintainable.

Observations

The Court observed, “In a suit for recovery of possession, one of the essential conditions is (i) entitlement, (ii) manner of entitlement, (iii) specifics on the date and mode of dispossession, and conversely (iv) what is the nature of possession claimed by the defendant, and how it is illegal. Admittedly in the case on hand, these pleadings are completely absent. A few bits and pieces of evidence without pleading cannot be appreciated. Therefore, the first relief is rightly rejected by reckoning the plea and proof placed by the plaintiff.”

It was held that the plaint was bereft of the required details on the alleged date of dispossession and the basis on which recovery of possession is prayed for. In the absence of material pleadings and evidence, the suit of Plaintiff/Appellant was rightly dismissed.

“After perusing the judgment of the first appellate court, we observe that the first appellate court has fastened the burden on the 1st defendant and has also drawn a few adverse inferences on the case pleaded by the 1st defendant. Without a detailed narrative of the position in law in this behalf, we observe that the approach of the first appellate court is erroneous and failed to appreciate the nature of prayers and frame of suit”, the Court concluded.

Accordingly, the Civil Appeal was dismissed.

Cause Title: Kanta and Ors. v. Soma Devi and Ors. [Neutral Citation:2026 INSC 133]

Appearances:

Appellant: Advocate on Record Mohit D. Ram, Advocate Nayan Gupta, Advocate Arav Chaudhary.

Respondents: Advocate on Record Mohan Lal Sharma, Advocate Govind Goel, Advocate Shikha Sharma.

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