Encroacher Cannot File Prohibitory Injunction Against True Owner Of Land: Himachal Pradesh High Court

The Himachal Pradesh High Court (“High Court”) bench of Justice Rakesh Kainthla dismissed a review petition on the ground that the encroacher of the state land cannot file a prohibitory injunction against the true owner of the land.Background Facts: The review petition has been filed by the petitioner seeking review of judgement titled Subhash Chander Mahendra (deceased through LRs) (“Petitioner”) Vs. State of Himachal Pradesh (“Defendant”). As per the petitioner court had misread the pleadings and there was an error apparent on the face of record. Series of events that led to the filing of review petition: The petitioner had filed a Civil suit in the trial court for seeking a decree of declaration of land that he owned. The petitioner's contention was that the revenue authorities had wrongly dispossessed the petitioner from the land. The petitioner sought permanent prohibitory injunction against the defendant from dispossessing the petitioner from the land. The petitioner submitted that the land was purchased by him in 1973-74 and he had built a house. It further submitted that during the settlement operation one person had filed an application before the settlement officer, Shimla on the ground that the passage that led to his house has been closed by the petitioner. The petitioner further submitted that, the settlement officer had passed an order against the petitioner regarding the encroachment of land along with the correction in the revenue record.Thereafter, the petitioner filed a suit in the trial court seeking a decree of declaration of land and to set aside the order by the settlement officer. However, the civil court upheld the order of the settlement officer. An appeal was filed by the petitioner in the first appellate court and the appellate court did not hear the same stating that it was barred by res judicata. The petitioner then approached the High court, which held that the suit was not barred by res judicata. However, even if it was remanded back to the first appellate court the decision would not change as the settlement officer had the jurisdiction to act against the petitioner as per law for the removal of the encroachment. Further, the court held that the plaintiff being the encroacher of the land cannot file an injunction against the true owner of the land. The supreme court in Sopan Sukhdeo Sable vs. Assistant Charity Commissioner, 2004(3) SCC 137 held that there is a distinction between the restoration of the possession and seeking an injunction. A person in settled possession can get the possession back if forcibly dispossessed, but he cannot seek an injunction against the true owner. Thereafter, the petitioner filed Review petition in the high court stating that the court was wrong in assessing that the the court had misread the pleadings and there was an error apparent on the face of record. It further stated that the High court should have remanded it back to the appellate court to record fresh findings on merits as the petitioner was not given a fair opportunity to present its case. The petitioner further submitted that the title of the land was never in dispute as the same has not been specifically denied by the defendant and the court should have granted the decree of declaration based on the admission. It also submitted that the high court relied upon the case law not cited by the parties. Findings: The High court noted that the plea taken by the petitioners in the review petition is not correct that no finding was recorded by the first Appellate Court as upon perusal of the judgement by the first appellate court it is observed that the petitioner was given a fair chance to present its case and all the findings were recorded on merit. The submission of the petitioner regarding the ownership that the title of land is not in dispute as it was not specifically denied by the defendant and the decree of declaration should have been granted based on the admitted facts. This submission was not accepted by the court, and it was said that no decree could have been granted to the plaintiffs based on the admissions.The Kerala High Court in Mani v. Madhavi, held that the admission does not confer a title upon a person. Principle that an admission by itself cannot confer title to a property is well settled. The petitioner had encroached government land and the settlement officer was correct in taking the action for removal of encroachment. The petitioner cannot seek an injunction against the state of H.P. as they were the true owner of the land, and it was rightly held that the encroacher cannot seek an injunction against the true owner of the land. The court further held that the Court is not precluded from relying upon the correct law even if it has not been cited on behalf of either of the parties. The court cannot follow every law brought to its notice by the parties. The court dismissed the review petition on the ground that, there is no absence of error on the face of record....

Encroacher Cannot File Prohibitory Injunction Against True Owner Of Land: Himachal Pradesh High Court

Mehak Aggarwal

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