Encroacher Can’t Seek Injunction Against True Owner: Himachal Pradesh High Court

The petitioner filed the petition seeking review of the judgment passed by the High Court in a second appeal.

Rejecting the submission that the Court wrongly held that an injunction cannot be issued against the true owner because the title never vested with the State of H.P, the Single Bench of Justice Rakesh Kainthla said, “It was held in para 29 of the judgment that the plaintiff was held to be an encroacher on the Government land, and the revenue authority had the jurisdiction to take action against him for removal of the encroachment. He could not seek any injunction against the true owner because the encroacher cannot seek an injunction against the true owner.”

Senior Advocate R.K. Bawa represented the Petitioner, while Additional Advocate General Lokender Kutlehria represented the Respondent.

Arguments

The case as set up by the petitioners was that they gave the details of the suit land and asserted that they had purchased the land in 1973- 74. This fact was not specifically denied in the written statement. There was no dispute of title between the parties as the State of H.P. never set up the title regarding the suit land. The declaration could have been granted by the Court because of undisputed and unrebutted revenue entries.

It was further averred that the land holding of the plaintiffs was decreased from 17 biswas to 12 biswas, and the land holding of the State was increased. The plaintiffs had not made any encroachment upon the Government land. The First Appellate Court held that the suit was barred by res judicata. The High Court held that the suit was not barred by res judicata. The matter was required to be remitted to the First Appellate Court to enable it to return findings on merits.

Reasoning

The Bench noted that the Appellate Court had recorded the findings on the merits of the dispute by holding that there was no evidence to show that an opportunity of hearing was not granted to the plaintiffs. Plaintiffs were found to be in possession of the land belonging to the State, proceedings for correction were carried out, the plaintiffs were aware of the proceedings, they had participated in the proceedings, and the collector was fully competent to remove the encroachment on the Government land.

The Bench discarded the plea taken by the petitioners/plaintiffs that no finding was recorded by the Appellate Court, and this Court should have remanded the matter to the Appellate Court to record fresh findings on the merits. “The learned Appellate Court had upheld the findings of the learned Trial Court on merit, and this Court had indicated its reasons for upholding the findings of learned Appellate Court. It was rightly submitted on behalf of the respondent-defendant that review cannot be an appeal in disguise, and if the plaintiffs are aggrieved by the reasoning of this Court, their remedy lies elsewhere and not in the review”, it said. Referring to the judgment in Mani v. Madhavi (2017), wherein it has been observed that the admission does not confer a title upon a person, the Bench held that no decree could have been granted to the plaintiffs based on the admissions.

On the submission of the plaintiff that the defendant did not lead the evidence, and the suit should have been decreed, the Bench held, “This submission is only stated to be rejected. The plaintiff has to stand on his legs, and he cannot take advantage of the weakness of the defendant’s case. The plaintiff had to prove his title to get the declaration and no declaration can be granted to him on failure to lead evidence by the defendant.”

It was also noticed that submissions before the Court were made by a counsel who had not argued the matter originally before the Court. Reference was made to Jag Mohan Agarwal v. Kanchan Kumari Jain, (2023), wherein it has been observed that the review at the instance of the subsequent counsel is not maintainable. “Hence, the subsequent counsel is not in a position to say whether the judgment was cited at the bar or not”, it said.

Thus, dismissing the Petition, the Bench held, “Therefore, there is no error apparent on the face of the record. The petitioners have the remedy of approaching an appropriate forum in case they feel aggrieved by the judgment rendered by this Court, but the judgment cannot be reviewed in the absence of error apparent on the face of the record.”

Cause Title: Subhash Chand Mehendra (since deceased) through his LRs v. State of H.P. and another (Neutral Citation: 2025:HHC:10810)

Appearance:

Petitioner: Senior Advocate R.K. Bawa, Advocate Ajay Kumar Sharma

Respondent: Additional Advocate General Lokender Kutlehria

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