BASHIR AHMAD Versus MUHAMMAD QASIM

1. SARDAR SAID MUHAMMAD KHAN, CJ.‑‑‑ This appeal has been directed against the judgment of the High Court, dated 22‑12‑1990, whereby the appeal filed by Muhammad Qasim, respondent, herein, was accepted.

2. The brief facts giving rise to the present appeal are that the plaintiffs appellants brought a suit for declaration with perpetual injunction in the Court of Sub‑Judge, Bhimber, alleging that the suit land comprising Survey No.2020 min, measuring 19 Kanals 5 Marlas, situate in village Kasguma, Tehsil Bhimber was owned by them and pro forma defendants; in alternative they sought a declaration in terms that their possession over the suit land had ripened into ownership through prescription. The plaintiffs‑appellants also sought a declaration that the sale‑deed executed by Muhammad Azam and others in favour of Muhammad Qasim, defendant‑respondent, be declared as null and void against their interest; relief in form of a perpetual injunction against the respondents was also prayed for in terms that the defendants respondents should be refrained from interfering with the possession of the plaintiffs‑appellants. The trial Court dismissed the suit holding that the plaintiffs‑appellants failed to prove their title to or adverse possession over the suit land. However, on appeal to the Additional District Judge, the suit was partly decreed in terms that as the plaintiffs‑appellants are in the possession of the suit land, the respondents should refrain from interfering with their possession. So far as the claims made by the plaintiffs‑appellants regarding the title and adverse possession were concerned, those were negatived by the Additional District Judge and findings of the trial Court were maintained. On second appeal to the High Court, the findings of the Additional District Judge were vacated and that of the trial Court were restored. It was held by the High Court that the plaintiffs‑appellants failed to prove their possession on the suit land and, thus, they were not entitled even to the relief of perpetual injunction.

3. We have heard the arguments and gone through the rile. The learned counsel for the appellants, Ch. Muhammad Sharif Tariq, has raised a preliminary objection that the appeal filed by Muhammad Qasim, respondent, to the High Court was not competent because Khadim Hussain, the attorney for Muhammad Qasim, had no power to prefer an appeal or to execute `Wakalat Nama' for engaging a counsel to prefer an appeal to the High Court. The learned counsel has argued that the High Court has committed an error by holding that the power of attorney executed in favour of Khadim Hussain empowered him to file an appeal to the High Court. He has argued that contents of the power of attorney should be construed strictly and the powers which have not been given to the attorney specifically or by necessary implication, should not be assumed to have been given to him by interpreting the relevant document in view of general expressions used therein. The learned counsel has referred the following authorities in support of his contention:

4. In a case reported as Mian Bashir Ahmad v. Mrs. Mary Minck (AIR 1938 Lah. 698) it was opined that a pleader `applying' is doing something more than mere acting and, thus, he must have his authority in writing. It was observed that under Order 3, Rules 1 and 4 of the C.P.C. any pleader without any authority from the litigant and without putting any memorandum of appearance would not be in a position to present any application on his behalf. In Muhammad Riaz Khan v. Sardar Rahim Dad (PLD 1988 Azad J&K 5), it was held that if a contract is entered into by an agent without the authority of the principal, the rule of ratification under section 196 of the Contract Act would not apply in such a case. It was opined that where a counsel was not validly appointed by the plaintiff for filing of a suit, the suit filed on such forged power of. attorney was not maintainable even if the same was subsequently ratified by the plaintiff. ‑

5. In Azad Jammu and Kashmir Government v. Habibullah Lone (PLD 1984 SC (AJ&K) 13), it was held that Law Secretary was not entitled to direct the Advocate‑General to file a petition for leave to appeal without the direction of the Government. The act of the Law Secretary filing the petition for leave to appeal was held to be unauthorised and the petition for leave to Appeal was dismissed as being incompetent.

6. In a case reported as Gul Taj Begum v. Lal Hussain (PLD 1980 SC (AJ&K) 60), it was opined that power of attorney should be construed strictly and be so interpreted as to give only such authority as it confers specifically or by necessary implication. Important rule of construction of such a document is that regard must be had to recitals in the document as a whole. In view of the contents of the document the party concerned was held not authorised to file the pre‑emption suit.

7. It would be expedient to reproduce below the contents of the power of attorney which was executed in favour of Khadim Hussain, attorney, so as to grasp its scope correctly:

8. "This General Power of Attorney is made the 29th day of September, one thousand nine hundred and eighty by me Muhammad Qasim of 186 Ampthill Road in the Town and County of Bedford‑‑‑

9. I appoint Khadim Hussain son of Fazal Ahmad of Village Khalabut Kasguma, District Mirpur, Tehsil Bember, Azad Kashmir to be my attorney in connection with the prosecution and defence of my legal case against Rashid Ahmad currently being carried on in the Courts of Azad Kashmir and in all respects in accordance with the Laws of Azad Kashmir."

10. It may be observed that we have no quarrel with the view taken in the authorities cited by the learned counsel for the appellants. However, the fact remains that scope and connotation of a power of attorney are to be understood in view of contents of the same in each particular case. It is evidence from the contents of the power of attorney in question that Khadim Hussain was empowered to `prosecute' and `defend' the case which was pending at the relevant time in the Court. It may be observed that the power of attorney was filed when the appeal was pending before the Additional District Judge. The expression `my legal case against Rashid Ahmad currently being carried on in the Courts of Azad Kashmir and in all respects in accordance with the laws of Azad Kashmir' is comprehensive enough to empower Khadim Hussain to file appeal to any higher forum, despite the fact that the word `appeal' has not been specifically used in the power of attorney. While interpreting a power of attorney, the intention of the person who executes the same is to be ascertained. We are satisfied that there is hardly any doubt that Muhammad Qasim, respondent, intended to empower Khadim Hussain to take all the steps necessary for the prosecution or defence of his `case', including the power to file appeal to higher forums as is evident from word `Courts' used in the power of attorney. Therefore, we are not impressed by the arguments advanced by the learned counsel for the appellants that the appeal preferred to the High Court on the basis of `Wakalat Nama' executed by attorney was incompetent. Hence finding no force in the objection regarding competency of appeal filed in the High Court, it is hereby repelled.

11. Coming to the merits of the case, it may be observed that the learned counsel for the appellants did not press the points that the appellants had any title to the suit land or the nature of their possession was adverse to the respondents. However, he has strenuously assailed the findings of the Courts below that the appellants had failed to prove their possession over the suit land. The only point he has vehemently argued is that the possession of the appellants over the suit land has been amply proved by the appellants and the High Court has committed an error in setting aside the findings of the Additional District Judge on the point. He maintained that the findings of the High Court were the result of misreading and non‑reading of evidence on the record. He has argued that the report of the Commission has been misread by the High Court; it committed an error in holding that the identity of the suit land was doubtful and the appellants were in possession of the land adjacent to the suit land and not the suit land. He has argued that the question regarding the boundaries of the land has never been a subject of controversy between the parties. He has drawn our attention to the report of the Commission and has argued that it is clearly recorded in para. 3 of the report that the exact location of the suit land was agreed upon by the parties in presence of two other witnesses at the time of spot inspection. He has also argued that in para. 4 of the report, it is clearly‑ mentioned that one of the respondents, Raja Muhammad Azam, vendor, admitted on the spot that stones in the suit land which consisted of two heaps and were about ten thousand in number were collected in the suit land by the appellants; however, the respondents stated that they were collected from the suit land itself and were not brought from the outside. The learned counsel has further referred to para seven of the report wherein the Commission has clearly mentioned that a hedge had been also raised on a part of the suit land and Rashid Ahmad, plaintiff‑appellant, was found in possession of the same; and that one of the respondents, Raja Muhammad Azam, vendor, admitted that although they were owners of the suit land yet the plaintiffs‑appellants had been in possession of the same. He has further argued that. Muhammad Najib, Advocate, who was appointed as Commission by the trial Court and whose statement was also recorded, was not challenged by the respondents in cross‑examination, so far as his report and statement pertained to the question of possession and identification of the suit land. The learned counsel has also taken us through the statements of witnesses produced by the appellants. The witnesses for the appellants, Muhammad Khan, Muhammad Afzal, Bashir Ahmad son of Naik Alam and Muhammad Afzal have categorically stated that the suit land had been in possession of the father of the appellants and after. his death, in the possession of the plaintiffs‑appellants. The learned counsel maintained that these witnesses are independent and their testimony has not been rendered doubtful by the cross‑examination. He has further argued that Raja Muhammad Azam, respondent, has admitted in the cross‑examination that the stones about ten thousand in number had been collected in the suit land. He has further argued that Khadim Hussain, the only witness produced by the respondents, is closely related to the vendee, Muhammad Qasim, as has been admitted by him in the cross‑examination. Thus, according to the learned counsel for the appellants, the findings of the High Court that the plaintiffs‑appellants failed to prove their possession of the suit land are not sustainable.

12. In reply, the learned counsel for the respondents, Agha Ashiq Hussain, has argued that the plaintiffs‑appellants did not file any Revenue Record to prove their possession of the suit land. He has further maintained that the oral evidence regarding possession is not trustworthy and findings of the High Court on the point do not suffer from any legal infirmity.

13. We have given our due consideration to the arguments of the learned counsel for the parties regarding the factum of possession and we have come to the conclusion that findings of the High Court on the point are not sustainable in view of the evidence on record. It may be observed that there has been no dispute between the parties regarding the identity or the boundaries of the land in question, as is evident from the report of the Commission. It has not been P the case of the respondents that although the plaintiffs‑appellants were in possession of a piece of land but that was different land which was adjacent or contiguous to the suit land. The Commission has clearly recorded in the report that both the parties agreed regarding the boundaries of the suit land; neither any objection was raised about the identity of the suit land in the pleadings nor any such controversy surfaced during the course of the trial. It is correct that the plaintiffs‑appellants have not produced any Revenue Record regarding their possession but all the same the respondents have also failed to produce any record pertaining to the years after 1960 in support of their possession. Both the parties placed on record the copies of Jamabandi for the years 1959‑60, wherein the. respondents‑vendors have been shown in possession of the suit land. According to the case of the plaintiffs‑appellants, they had been in possession of the suit land for 14/15 years prior the institution of the suit by them. The suit was instituted by the plaintiffs‑appellants on 8‑2‑1979 which implies that they claim possession from year 1964‑65 but the copies of Jamabandi placed on record pertained to the year 1960. Thus, the Revenue Record produced by the parties is of no avail so far as the controversy about the possession is concerned. The Additional District Judge, after considering the oral evidence of the parties and the report of the Commission, has rightly held that the possession of the plaintiffs‑appellants over the suit land is fully established.

14. The next question which has been the subject of controversy between the parties is that whether it trespasser, who has no title to the land, is entitled to a perpetual injunction if he establishes his peaceful possession of an immovable property. Mr. Sharif Tariq, the learned counsel for the appellants, has stated that even a trespasser cannot be ejected from the suit land by the owner with force. He has contended that if a trespasser is ejected, he has right to sue for the recovery of possession under section 9 of the Specific Relief Act; and he is entitled to the restoration of the same without establishing his title to the same, According to the learned counsel for the appellants, it implies that the suit by it trespasser for perpetual injunction in terms that he should not be ejected forcibly is maintainable because one of the purposes of perpetual injunction is to avoid multiplicity of the proceedings in the Courts. The learned counsel has cited some authorities in support of his contention:

15. In Majisa Imamsa Kairat v. Kalyanrao Anantro Kulkarni (AIR 1961 Mysore 86), it was held that the enjoyment of the dominant owner which may in time ripen into an casement is not possession and gives no possessory right before the due time is fulfilled. The de facto enjoyment does not even provisionally create any substantive right. However, if the dispute between the two trespassers and the plaintiff proves that he has dug out the water channel and maintained it, the plaintiff ‑being in possession of the channel when obstructed by the defendant has a cause of action against the defendant foe obstruction and can maintain a suit for injunction.

16. In Jaffar Khan v. Mrs. Zeenatun Nisa (1984 CLC 3019) the suit was for declaration and permanent injunction. It was observed that relief for declaration wits not necessary to be gone into at that stage. It was opined that so far as the relief in the suit relates to a permanent injunction restraining the defendants from dispossessing the plaintiff directly or indirectly by force from the premises in his occupation was concerned, the plaintiff was entitled to that, because he remained in possession of the premises despite the fact that transfer made in his favour by the Settlement Authorities was cancelled on the ground that the portion in his occupation did not constitute a `house'. However, the plaintiff, it was held; could not be ejected forcibly, except in due process of law.

17. In Umesh Chandra Bhadra v. Sheikh Somed Ali (PLD 1959 Dacca 448), it was held that in a suit for perpetual injunction restraining the defendant from dispossession is maintainable without a prayer for declaration of title where the plaintiff is in possession and section 88(6‑A), Cr.P.C., does not create a bar to such a suit. The facts of that case reveal that the title of the plaintiff was not disputed.

18. In Rajai Singh v. Suraj Bali (AIR 1942 Oudh 179), the facts of case were that the plaintiff claimed to be in possession of the land on the basis of a gift‑deed, and the defendant instituted a suit under section 9 of the Specific Relief Act. The defendant claimed in the written statement that he was proprietor of the same. It was held that the suit could not be treated as one by a tenant for the recovery of the occupancy of land from which he had been illegally dispossessed under the provisions of the Oudh Rent Act. No relationship of landlord or tenant having been alleged or admitted. It was held that the gift‑deed was not valid‑and, thus, the possession was no better than that of a trespasser but all the same there was nothing to prevent the plaintiff from bringing a' suit in Civil Courts to ask for a summary remedy under section 9 of the Specific Relief Act.

19. The learned counsel for the respondents has controverted the arguments advanced by the learned counsel for the appellants and stated that there must be some legal or contractual obligations in favour of the plaintiff who seeks a perpetual injunction in his favour. The learned counsel has maintained that the claim of the plaintiffs‑appellants about title and adverse possession has been turned down and, thus, their status being that of a trespasser, they are not entitled to relief in form of perpetual injunction, against the respondents who are the owners. The learned counsel has referred to some authorities in support of this proposition:

20. In Chand Muhammad Mon4al v. Fayezuddin Ahmad (PLD 1958 Dacca ‑135), it was held that in a competition between the plaintiff who is none but a trespasser having no manner of title and the defendant who has got some basis of title, the trespasser should not be allowed to avail of the principles of equity by way of injunction as against a person who has got some legal title to the suit land. Relief of injunction is based on principles of equity and a Court of law or equity can hardly favour a person who is a trespasser against the person who has got some legal title.

21. In Shahid Coal Agency v. The Chairman (now General), Pakistan Railways (PLD 1982 Quetta 134), which was a case of interim injunction, it was held that the law does not lean in favour of trespasser and grant of injunction in such cases tantamounts to giving a right both present and future to trespasser which could not be legally claimed. This was not a case of perpetual injunction but that of a temporary injunction under Order 39;‑rule 2, C:P.C.

22. In a case reported as Alagi Alamelu Achi v. Ponniah Hudaliar (AIR 1962 Mad. 149), it was observed that a person in wrongful possession of property is not entitled to be protected against the lawful owner by an order of injunction. When once a Court finds that a plaintiff's possession of property is wrongful such possession cannot be protected by assistance of Court. The fact that if the lawful owner was to institute a suit, he might possibly fail on the ground that he was not in possession within 12 years of suit, can make no difference and cannot be a justification for the issue of an injunction maintaining the wrongful possession of the plaintiff.

23. In Subodh Gopa Bose v. Province of Bihar (AIR 1950 Pat. 222), it has been held that a temporary injunction should not be issued in favour of a trespasser and this was not a case of perpetual injunction but dealt with the temporary injunction under Order 39, Rule 1, C.P.C. Thus, it does not relate to the proposition in the present case.

24. It may be stated that the authorities cited by the learned counsel for the appellants reported as Shahid Coal Agency v. The Chairman (now General), Pakistan Railways (PLD 1982 Quetta 134), and Subodh Gopa Bose v. Province of Bihar (AIR 1950 Pat. 222) referred to above, pertained to interim injunctions under Order 39, Rule 1, C.P.C., and, thus, have no relevancy to a case of perpetual injunction which falls under section 54 of the Specific Relief Act.

25. We have given our due consideration to the arguments raised at the Bar and we are of the view that there is difference of opinion amongst various judicial authorities as to whether the suit for perpetual injunction against an owner is maintainable by a trespasser or not. In case reported as State of Jammu and Kashmir v. Ghulam Rasool (AIR 1979 J&K 53), it was observed as

26. "5, That relief of injunction is a discretionary relief is now well settled. A party before it can ask a Court to exercise discretion in its favour must show that it has some equities in its favour which would impel a Court to exercise discretion in its favour. In the alternative the party seeking injunction must possess some right which the opposite party is trying to invade or there must exist an obligation in its favour, whether contractual or ‑otherwise, in respect of which the opposite party is trying to commit a breach. These principles clearly emerge out of S.54 of the Specific Relief Act which ordains in what circumstances a Court may grant the discretionary relief of perpetual injunction.

6. The findings of the two Courts below themselves show that six kanals of land out of Khasra No.192 belongs to the State and the respondents have taken possession of it without any right or title. It would be therefore manifest that the respondents have taken possession and are in possession of this land as rank trespassers. A trespasser has no equities in his favour nor is the owner of the property trespassed under any legal obligation. There being no question of any contractual obligation under such circumstances to submit to the acts of trespass committed by the wrongdoer. An owner has therefore every right to enter upon his property and restrain the trespasser from perpetuating his illegal occupation of the property. It is not necessary for him to take recourse to legal proceedings in order to vindicate his rights of ownership and possession in respect of his property which has been taken into, possession by another without any right or title. The position may be of. course different where the trespasser has acquired ownership rights in the property by virtue of his long possession. That Government is not bound to honour the possession of a person over its property acquired by the latter without any right or title till it has taken recourse to eject him through legal proceedings is further borne out from section 9 of the Specific Relief Act which makes an exception for a suit under the said section against the Government."

27. In another case reported as Karthiyayani Amma v. Govindan (AIR 1980 Kerala 224), it has been observed as under:‑‑‑

28. "7. The ultimate position, therefore, reduces itself to this: Can a person in possession without title sustain a suit for injunction against the rightful owner if he proves possession? Yes. In this case, plaintiff is found to be in possession. On the finding, he should be granted the injunction prayed for. A person in possession can be evicted only in due process of law. Even the rightful owner cannot eject him with force. If he cannot be evicted with force, he continues to be in possession and he can resist invasion of his possession by everyone including the rightful owner. If the rightful owner threatens his peaceful possession, he can approach Courts of Law and pray for the equitable relief of injunction to protect his possession." ,

29. In Sm. Parul Bala Roy v. Srinibash Chowmal (AIR 1952 Cal. 364), it was observed that under section 54 para. 3 of the Specific Relief Act the breach of obligation contemplated by this section is to be considered in view of the section 3 of the Specific Relief Act which gives a wide import to the word `obligation'; obligation means any duty in addition to the contractual obligations, such as, founded on torts, on breach of trust, or on the breach of any other legal duty.

30. For resolving the question as to whether a person who has no title to the property but is in possession of the same can be granted perpetual injunction against an owner; it would be expedient to reproduce section 54 of the Specific Relief Act below:‑‑‑

31. "Subject to the other provisions contained in, or referred to by, this Chapter, a perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant whether expressly or by implication.

32. When such obligation arises from contract, the Court shall be guided by the rules and provisions contained is Chapter Il of this Act.

33. When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of property, the Court may grant a perpetual injunction in the following cases (namely):‑

(a) where the defendant is trustee of the property for the plaintiff;

(b) where there exists .no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;

(c) where the invasion is such that pecuniary compensation would not afford adequate relief; .

(d) where it is probable that pecuniary compensation cannot be got for the invasion;

(e) where the injunction is necessary to prevent a multiplicity of judicial proceedings."

34. The close perusal of the para. 3 of section 54 would reveal that it does not postulate the existence of an `obligation' as is envisaged in paras 1 and 2. Para. 3 of section 54 stipulates that in case a right to, or enjoyment of property, is invaded or threatened, the plaintiff may be granted a perpetual injunction subject to the conditions laid down therein. The provisions contained in para. 3 of section 54 are not subordinate to paras. 1 and 2 of the said section because para. 3 commences after full stop at the end of para. 2. Thus, while interpreting the provisions contained in para. 3 of section 54, the word `obligation' used in first two paras would have no relevancy. Thus, we are of the opinion that if a trespasser has settled possession of a piece of immovable property extending over years, as is in the present case, it could not be said that he has no right of enjoyment of the property on the basis of his possessory title and the owner of the land is entitled to evict him by force. The provisions contained in section 54 of the Specific Relief Act should be read with those contained in section 9 of the said Act which envisage that if a person is dispossessed without his consent, he is entitled to recover the possession if he sues within a period of six months from the date of his dispossession without showing his title to the land. In other words his settled possession is recognized sufficient ground for the restoration of possession to him. The scheme of the Specific Relief Act does not stipulate the forcible dispossession of a trespasser by force. If a forcible dispossession by an owner is recognized, it is likely to result in multiplicity of proceedings which would be violative of one of the objects of the perpetual injunction stipulated under para. 3 of section 54 of the said Act. In the aforesaid view of the matter, we are of the opinion that a trespasser, whose possession is settled, can be validly granted perpetual injunction. Therefore, we respectfully agree with the view expressed in the cases reported as Jaffar Khan v. Mrs. Zeenatun Nisa (1984 CLC 3019) and Karthiyayani Amma v. Govinda (AIR 1980 Kerala 224). We are unable to approve the contrary view taken in Chand Muhammad Mondal v. Fayezuddin Ahmad (PLD 1958 Dacca 435), Alagi Alamelu Achi v. Ponniah Hudaliar (AIR 1962 Mad. 149) and State of Jammu and Kashmir v. Ghulam Rasool (AIR 1979 J&K 53).

35. The learned counsel for the respondents has also argued that the plaintiffs‑appellants were not entitled to perpetual injunction because they have not shown that the respondents intended to dispossess them forcibly. The contention of the learned counsel is not tenable because in para. 4 of the plaint it has been alleged that the defendant‑respondent, Muhammad Qasim, vendee, intends to forcibly dispossess them. In the written statement, in reply to para. 4 of the plaint, it has been stated that the possession was already with Muhammad Qasim, defendant. Thus, it can be safely inferred from the averment made in the plaint and the stand taken in the written statement that there was a dispute between the parties over the possession of the suit land and, thus, it cannot be said that apprehension of the appellants that they would be dispossessed is unfounded. Even otherwise, the witnesses for the plaintiffs, namely, Rashid Ahmad, Bashir Ahmad and Muhammad Afzal have categorically stated that the 'defendants‑respondents were after forcible dispossession of the appellants. Thus, the contention of the learned counsel that there is no evidence to show that the respondents intended to take possession of the suit land forcibly has not merit and is hereby repelled.

36. In the light of what has been stated above, partly accepting the appeal, the judgment of the High Court is amended in the terms that the respondents shall not dispossess the appellants from the suit land, except in due course of law. Consequently, the judgment of the Additional District Judge stands restored.

37. AA./328/SCA Appeal accepted.