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Supreme Court Of India

(From : 2004 (2) All CJ 1898)

Hon'ble Judge(s): Arijit Pasayat, S. H. Kapadia , JJ

Specific Relief Act (47 of 1963) , S.35— Suit for permanent injunction for protection of possession - Failure to prove possession - Sufficient for dismissal of such suit - Declaration regarding title - Unwarranted. An injunction restraining disturbance of possession will not be granted in favour of the plaintiff who is not found to be in possession. In the case of a permanent injunction based on protection of possessory title in which the plaintiff alleges that he is in possession, and that his possession is being threatened by the defendant, the plaintiff is entitled to sue for mere injunction without adding a prayer for declaration of his rights.(Para 10) Where in the suit for permanent injunction restraining the defendants from interfering with the possession of land in dispute or from raising boundary wall, the plaintiffs fail to prove that they are in possession, the suit is liable to be dismissed only on that ground. The declaration that the plaintiffs are not owners in such case is unwarranted.(Para 11) .....