Devilal vs Hamid Shah

M.C. Garg, J.—This judgment shall dispose of the aforesaid second appeal, which has been filed by the appellants, who were the plaintiff in the Lower Court. The suit filed by the appellants 91-A/94 was decided in favour of the plaintiff but in first appeal filed by the respondent as Civil Appeal No. 26-A/95, the judgment of the Lower Court was reversed. In the Lower Court, the appellant-Devilal filed a suit for injunction to the effect that the house of the appellant was located in ward No. 4 Uparwali Toli and the house of the respondent was located at some distance. In between the two houses, there was a way going through Government open land and the said way used to be utilised by the plaintiff as well as the people in the Mohalla, but the respondent wanted to create obstruction in the aforesaid area, who got a sale deed of the portion of the land in their favour, even though the Anjuman Tanjuman Islam Committee, who had executed sale deed in their favour had no right to execute the sale deed. Since then, the respondent wanted to obstruct the passage leading to the house of the appellant by causing obstruction in the light of easement sought with respect to the user of the passage. As such, the appellant filed the suit for injunction.

The suit for injunction filed was decreed in favour of the appellant by the Lower Court but in the first appeal the judgment was reversed. The First Appellate Court framed the following issues at the time of deciding the appeal and answered both of them against the appellant:--

The Trial Court by holding that no relief of easement was sought for by the appellant in his plaint and, therefore, he was not entitled to the relief. It was also held that since there was an averment that there was user of the land even by the people for which there was no such averment in the plaint, the appellant was not entitled to the relief as claimed and therefore, reversed the judgment. The relevant paragraphs of the impugned judgment are as under:--

The aforesaid judgment despite observing that merely the sale deed was executed in favour of the respondent by Anjuman Tanjuman Islam Committee and that the sale deed executed by Anjuman Tanjuman Islam Committee are not proper, still decided the appeal, in favour of the respondent. Hence, the appellants filed this second appeal. The second appeal was admitted on the following substantial questions of law:--

"(a) Whether the suit filed by the appellants for permanent injunction was maintainable in law without claiming the relief of declaration in respect of their easementary right of way?

(b) Whether the relief could be refused to the appellants for failure to have recourse to the provisos of Section 91, CPC and Order 1 Rule 8 CPC?

(c) Whether the finding of reversal recorded by the learned Additional District Judge on the question of existence of right of way is perverse and vitiated by illegal approach?"

I have heard the submissions of both the sides.

With respect to question No. 1 as framed by this Court, the learned Senior Counsel for the appellants has argued that in a suit for injunction without claiming any declaratory relief is maintainable in law, whereas a suit for declaration without claiming further relief of injunction is barred by Section 34 of the Specific Relief Act. There is no such provision available in this regard in Section 38 of the Specific Relief Act, which bars perpetual injunction. Both the aforesaid provisions are reproduced hereunder for the sake of reference:--

"34. Discretion of Court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation:--A trustee of property is a ''person interested to deny'' a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.

Perpetual injunction when granted.--(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.

(2) When any such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II.

(3) When the defendant invades or threatens to invade the plaintiffs 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 compensation in money would not afford adequate relief;

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

In the present case, it is submitted by the appellants that since in the present suit, the relief of declaration was not required as the relief of injunction itself was sufficient to protect the interest of the appellants. The appellants have also cited a judgment of Hon''ble the Supreme Court in this regard, reported in Corporation of the City of Bangalore Vs. M. Papaiah and Another, . The relevant observation in the aforesaid judgment is reproduced hereunder:--

"The suit was filed for a decree of perpetual injunction restraining the defendant/Corporation from interfering with possession of plaintiff over land in dispute. The case of Corporation was that disputed area was acquired for using it as burial ground under Govt. order and compensation was paid to plaintiff out of Municipal funds and land was in possession of defendant since then. The plaintiffs case was that the alleged G.O. was cancelled and land was settled under another G.O. with persons, who subsequently sold it to plaintiff. The plaintiff also got his name entered in revenue records. The suit was decreed by Trial Court but the decision was reversed in first appeal. The plaintiffs second appeal was allowed by High Court and the decree of Trial Court was restored.

Held, that foundation of claim of plaintiff was title, which was pleaded in earlier part of plaint and for deciding the nature of a suit the entire plaint has to be read and not merely the relief portion. The plaint in the present case does not leave any manner of doubt that the suit has been filed for establishing the title of the plaintiffs and on that basis getting an injunction against the Corporation. The Court fee payable on the plaint has also to be assessed accordingly."

In the present case also, the basic relief as claimed by the appellants was that in the suit land they had been using the right of passage for a long time and the sale deed executed in favour of the respondent by Anjuman Tanjuman Islam Committee was of no consequence as the sale deed was illegal and not executed by proper authority and in any event even if the sale deed was executed the right of way could not have been obstructed, which was the injunction sought for by the appellants. Hence the first question is decided in favour of the appellants.

With respect to the second question, it has been argued on behalf of the appellants that the First Appellate Court while dealing with the second issue in Paragraph 9 of the judgment has observed that there was no compliance of provisions of Order 1 Rule 8, CPC, and therefore, has committed a grave error. It is true that initially appellant-Devilal did not move an application under Order 1 Rule 8, CPC, but the allegations were made in Para 2 of the plaint that the right of way claimed not only by Devilal but by all residents of that locality. During the pendency of the suit, an application I.A. No. 12 was moved by one Jagdishchandra on 2-1-95 alleging that they also had right of way, which was common for all residents of the locality and also sought impleadment as plaintiff. The application was allowed vide order dated 9-1-1995 and the Court also directed publication of notice under Order 1 Rule 8, CPC in daily newspaper "Bhaskar", dated 27-3-1995. Thus, not only the application under Order 1 Rule 8, CPC was allowed, but publication was also effected.

I have been taken through the order dated 9-1-1995 available in the file of the Lower Court and also been shown the publication effected on the basis of the aforesaid order. The said order is reproduced hereunder:--

The learned Senior Counsel for the appellants has also brought to my notice the judgment of Hon''ble the Supreme Court reported in (2005) 12 SCC 180, Krishnan Vasudevan and others v. Shareef and others, wherein it has been observed that leave under Order 1 Rule 8, CPC can be granted at any stage of suit and does not require that an application should be filed at the time of institution of suit. In fact, it has been held that even at the appellate stage, such relief can be claimed. The relevant observation are reproduced hereunder:--

"3. Order 1 Rule 8, CPC does not prescribe any stage at which the application can be filed. In our opinion, the Trial Court ought to have heard and decided the application on its own merits without regard to the stage at which it was filed. The error committed by the Trial Court should have been corrected by the High Court."

Thus, this question is also decided against the respondent.

I have also gone through the written submissions filed on behalf of the respondents. The case of the respondents is based solely on the ground that since there was no specific averment claiming easementary rights, the suit filed by the appellant/plaintiff was not maintainable. I have already discussed the evidence available on record and it is apparent that not only the right of easement was pleaded, but one Jagdishchandra also filed an application under Order 1 Rule 8, CPC, which was not only allowed but publication was also effected and therefore, the submissions made by the respondents are of no substance. Coming to question No. 3. In the light of the point as discussed above, the observation made by the Appellate Court in Paragraph 11 of the judgment cannot be sustained. Consequently, the appeal filed by the appellants is allowed with costs and the respondents are restrained from obstructing the appellants and other respondents of the locality from using the passage leading to the house of the appellants upon the house of the respondent by issuing a decree of perpetual injunction. Decree sheet be drawn accordingly.

C.c. as per rules.