Can a prohibitory injunction be granted against the true owner and in favour of a trespasser?
That a trespasser can sue to recover possession of an immoveable property when dispossessed of it other than through the due process of law is not in doubt (so long as they were in settled possession). But what about a trespasser who is fearful of being dispossessed by the true owner? Can such a trespasser bring and maintain a suit for injunction against the actual owner of the property?
The answer is a resounding “no.”
A trespasser cannot be granted injunction against the true owner, regardless of whether they enjoy settled possession of the property. This was held to be the case by the Supreme Court in Mahadeo Savlaram Shelke v. Puna Municipal Corporation (1995) 3 SCC 33. It is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession.
That said, it bears noticing Rame Gowda (Dead) by LRs. Vs. M.Varadappa Naidu(Dead) by LRs & anr (2004) 1 SCC 769 here. The following passage from the said judgement seems to throw trespassers a bone of sorts:
“The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force.”
While it appears as though Rame Gowda (supra) lays down that a trespasser can indeed be granted an injunction against the rightful owner, it bears mentioning here that the said judgement cites a number of previous judgements of the Supreme Court prior to the above passage, but none of them contain the above enunciation of law pertaining to grant of injunction against true owner at the instance of a trespasser. Moreover, as noticed by the Delhi High Court in Thomas Cook (India) Ltd. Vs. Hotel Imperial, 18 (2006) 88 DRJ 545, neither the plaintiff nor the defendant could establish their title over the suit property in Rame Gowda.
Any last vestige of controversy was put to bed by the Apex Court in Anathula Sudhakar v. P. Buchi Reddy (2008)4 SCC 594, wherein it was made clear that a suit for injunction simpliciter (without any prayer for declaration of title) isn’t maintainable only on the basis of possession alone in case the plaintiff’s title to a property is in dispute. The relevant portion of the judgement reads thus:
“11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.”
A person suing for injunction simpliciter will, perforce, have to amend their plaint to seek a declaration as to title as soon as their title is questioned by the defendant. Now assume the plaintiff is a trespasser with no meritable claim to the property in that the title vests in thee defendant. It is hard to imagine the latter not contesting the trespasser’s suit for injunction simpliciter using their better title. All of which leads us to just one irrefragable conclusion: a trespasser cannot be granted a prohibitory injunction against the true owner.
Originally published at https://lawsyndicate.in on March 21, 2019.
