PREMJI RATANSEY SHAH AND ORSversusUNION OF INDIA AND ORS.

                PREMJI RATANSEY SHAH AND ORS ..                                   A
                                      v.
                      UNION OF INDIA AND ORS.

                               JULY 22, 1994

         (K. RAMASWAMY AND N. VENKATACHALA, JJ.]                                  B

       Specific Relief Act, 1963: Section 4J(j) Injunction-Grant o~Whether
discretionary and equitable relief-l'laintiff must have personal interest-Right
not in existence cannot be protected by injunction-Injunction cannot be is-
sued against true owner or in favour of a tres-passer.                            c
      Certain lands were acquired for the railways. The award given by the
Collector became final and the possession of the land was also banded over
to the railways. As a result of these acquisition proceedings the original
land owners were divested of their title and bad interest to alienate the
land acquired. However the petitioners filed a suit for declaration that they D
were successors in title to certain lands of defendants Nos. 3 and 4 and
for injunction not to interfere with their possession, Their case was that
defendants No. 3 and 4 purchased the land from the original land owners
under a sale-deed dated August 21, 1966 and that on January 21, 1973 the
said defendants entered into an agreement of sale with the petitioners and E
also banded over the possession of the land to them.

      The Trial Court held that the petitioners were in possession of land
but a Single judge of the High Court dismissed the petitioners' suit. The
Division Bench of the High Court also dismissed the petitioner's appeal
holding that possession was handed over to the railways and the railways          F
had been in possession of the land. Against the decision of the High Court,
Special Leave Petition was filed in this Court.

      Dismissing the petition, this court

       HELD : 1. Issuance of an order of injunction is absolutely a discre·
                                                                                  G
tionary and equitable relief. In a given set ·or facts, injunction may be given
to protect the possession of the owner or person in lawful possession. It is
not mandatory that for mere asking such relief should be given. Injunc·
!ion is a personal right under Sedion 41G) of the Specific Relief Act, 1963;
the plaintiff must have personal interest in the matter. The interest or H
                                      117
    118                   SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.

A right not shown to be in existence, cannot be protected by injunction.
                                                                       [120-F·G]
          2. It is equally settled law that injunction would not be issued against
    the true owner. Therefore, the Courts below have rightly rejected the relief
    of declaration and injunction in favour of the petitioners who have no
B   interest in the property . Even assuming that they had auy possession,
    their possession is wholly unlawful possession of a trespasser and an
    injunction cannot be issued in favour of a trespasser or a person who
    gained unlawful possession, as against the owner. Pretext of dispute of
    identity of the land should not be an excuse to claim injunction against
    true owner under these circumstances, there is no ground warranting
c   interference with the judgments and decrees of the Court below.
                                                             [120-G-H; 121-A-B]
         CIVIL APPELLATE JURISDICTION : Special Leave Petition No.
    10792 of 1994.

D        From the Judgment and Order dated 3.1.94 of the Bombay High
    Court in Appeal No. 457 of 1992.

          Ashok H. Desai, P.H. Parekh, K.V. Shah, Takker and S.Uday Sangal
    for the Petitioners.
E         The following Order of the Court was delivered :

           The unsuccessful plaintiffs in both the Courts below are the
    petitioners. Their suit for declaration that the appellants are successors in
    title to certain land of the defendant Nos. 3 and 4, namely, Sule and
F   Thakkar, who were said to be its owners, which formed a portion of land
    admeasuring 33 acres 2 guntas in Survey No. 103Npt. at Kiral and for
    injunction not to interfere with their possession etc., was dismissed by a
    Single Judge sitting on the original side of the Bombay High Court. A
    Division Bench of the same Court dismissed the appeal No. 557/92 of the
    petitioner·by the impugned judgment and decree dated January 31, 1994.
G   The facts not in dispute are that a Notification under Section 4(1) of the
    land Acquisition Act, 1894, was initially published on May, 4, 1959 propos-
    ing acquisition of 48.26 acres of land in Survey No. 103A invoking the
    urgency clause under Section 17. The enquiry under Section 5-A was
    dispensed .with. A declaration under Section 6 was followed. Thereafter,
H   another notification was issued on May 28, 1959 under Section 4(1) of the
                            P.R. SHAH v. U.0.1.                          119

Act acquiring 13 acres and 33 guntas in Survey No. 228 situated at Kurla. A
When possession was handed over to the railways on May 24, 1960, it was
found that they got possession of an excess of 12 acres 12 guntas in Survey
No. 103A. Therefore, third notification under under Section 4(1) was
published on July 13, 1965 and the enquiry under Section 5-A was con-
ducted and Section 6 declaration was made. For the lands covered in the
                                                                            B
first two notifications, award was made only July 30, 1966 and for the land
covered by the third notification, an award was made on May 26, 1968.
Thus, the award had become final As stated earlier, possession was already
taken and was handed over to the railways on February 24, 1960. Conse-
quently, the original owner Mrs. Maibai @ Jamnabai had been divested of
her title and had no interest to alienate part of land which 3rd and 4th C
defendants claimed to have purchased from he under a sale deed dated
August 21, 1966, in that it had, by then, stood vested in the railways free
of all encumbrances. Thereby, the purchasers got under the sale deed no
right, title or interest in the land which had gone to the Central Govern-
ment by them.                                                               D
       It is the case of the petitioners that defendant Nos. 3 and 4, namely.
Sule and Thakkar, entered into an agreement of sale with the petitioners
on January 21, 1973 coupled with a power of attorney etc. and delivered
possession of the land to the extent of 12 acres and 12 guntas. As stated
earlier, possession was already taken over by the railways. After the award     E
was made, the defendants No. 3 and 4 made an application before the
land Acquisition Officer claiming proportionate compensation for the
land said to have been purchased by them. The Land Acquisition Officer
had not accepted it but made a reference to the Civil Court under Section
30. In the reference made to the High Court under Section 30, the defen-        F
dants No. 3 and 4 remained ex parte and an award was made by the High
Court declaring that Maibai @ Jamnabai was entitled to the entire com-
pensation. The award also had become final, though the petitioners sub-
sequently gave up the relief of declaration that the plaintiffs are the
successors in title to the lands purchased by Sule and Thakkar in respect
of 33 acres and 2 guntas, claimed a declaration that the acquisition of land    G
of 60 acres 38 guntas pursuant to the award dated July 13, 1966 and May
26, 1968 as illegal, null and void of no effect and injunction.

     It is true that the trial Judge recorded a finding that the appellants
were in possession of the land and directed them to give possession but H
    120                   SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.

A ultimately the Single Judge dismissed the suit. On appeal, the division
    bench found that possession was handed over to the railways and the
    railways had been in possession of the land. Shri Ashok Desai, learned
    senior counsel for the petitioners, contended that there was a dispute as
    to the identification of the land. The petitioners' land was not the subject-
    matter of the acquisition and that, therefore, when. the learned trial Judge
B
    had found .that possession of the land was with petitioners, the division
    bench had committed error in holding that the petitioners were not entitled
    to declaration or injunction. In view of the finding by the trial Court that
    the petitioners were in possession, unless they are lawfully dispossessed, no
    interference with their possession was called for and, therefore, they are
c   entitled to the injunction sought for. We find no substance in the conten-
    tion.

           It is seen that a suit as originally framed, they sought for a declara'
    tion that the award made in respect of the land was void, inoperative and
    does not bind the petitioners. But that relief had been given up. Thereby,
D   the title of the land of the railways have not been questioned. With the
    award made under Section 30, the vendors of the petitioners got themselves
    bound by the above award under Section 12 of the Act. It is also seen that
    the two awards had become final and possession was delivered to the
    railways by the Land Acquisition officer on February 24 1960. Thus Defen-
E   dant Nos. 3 and 4 had no ghost of right, title or interest in the lands
    acquired from the original owner Maibai. The said sale is a void sale and
    the petitioners, therefore, cannot derive any interest under the agreement
    of sale to resist the possession cif the lawful owner nor could the declaration
    sought for be given. The question, therefore, is whether an injunction can
    be issued against the true owner. Issuance of an order of injunction is
F   absolutely a discretionary and equitable relief. In a given set of facts,
    injunction may be given to protect the possession of the owner or person
    in lawful possession. It is not mandatory that for mere asking such relief
    should be given. Injunction is a personal right under Section 41(j) of the
    Specific Relief Act, 1963; the plaintiff must have personal interest in the
    matter. The interest or right not shown to be in existence, cannot be
G   protected by injunction.

          It is equally settled Jaw that injunction would not be issued against
    the true owner. Therefore, the Courts below have rightly rejected the relief
    of declaration and injunction in favour of the petitioners who have no
H   interest in the property. Even assuming that they had any possession, their
                           P.R. SHAH v. U.0.l.                          121

possession is wholly unlawful possession of a trespasser and an injunction A
cannot be issued in favour of a trespasser or a person who gained unlawful
possession, as against the owner, pretext of dispute of identity of the land
should not be an excuse to claim injunction against true owner.

       Under these circumstances, we do not find any ground warranting
interference with the judgments and decrees of the courts below. The           B
special leave petition is dismissed with exemplary costs of Rs. 30,000 which
shall be payable to Supreme Court Legal Aid Committee. In case the
petitioners do not pay the costs within two months, the Supreme Court
Legal Aid Committee could proceed to recover the same by resorting to
execution.                                                                     c
T.N.A.                                                   Petition dismissed.