Kirpal Singh; Amlok Ram vs Kirpal Singh; Amlok Ram

The above stated appeals are directed against the judgment and decree dated 22.11.85 passed in first appeal by the learned Addl. District

Judge, Jammu. The judgment and decree dated 17.04.84 passed by the City Judge, Jammu were challenged in first appeal by the appellant Amlok

Ram (of appeal No. 11/86) as the reliefs of permanent propitiatory and mandatory injunction were not granted to him. Appellant Kirpal Singh (of

appeal no. 6/86) had forcibly raised construction over the disputed plot of land and the relief of possession was not claimed by the appellant

Amlok Ram (of appeal No. 11/ 86). the first appellate court concurred with the trial court in holding that the suit for injunction filed by the appellant

Amlok Ram was not maintainable without seeking relief of possession, but at the same time allowed the application of the appellant Amlok Ram

for amending the suit whereby insertion of para5(A) in the plaint was allowed which is to the following effect:

That the defendants have no right or title or interest in the suit property. The plot in question is owned by the plaintiff and hence the plaintiff is

rightfully entitled to claim possession of the same by demolition of whatever structures have been raised by the defendants illegally.

Accordingly, the case was remanded to the trial court for decision on the basis of above stated amendment in the suit. Aggrieved by this

judgment and decree, appellants Kirpal Singh and Charan Singh, who are the son and the father, have filed appeal (No. 6/86) under 0.43 Rule1

(U) CPC. In this appeal, it has been alleged that on March 26, 1979, respondent (Amlok Ram plaintiff) was not in possession of the disputed plot

and as such suit for permanent injunction is not maintainable. By allowing the amendment, the first appellate court has converted the suit of

injunction into the suit for possession which legally cannot be done. That at the time of instituting the suit, the relief of possession was available to

respondent2 herein (Amlok Ram) but he did not include the whole claim in respect of the cause of action and afterwards he is debarred to sue for

relinquished claim. The value of the plot at the time when the amendment was allowed was more than Rs. 50,000/ and when the suit is amended, it

has ousted the jurisdiction of the trial court (City Judge, Jammu) and thus amendment was not permitted.

In the memo of 2nd appeal (11/86), appellant Amlok Ram has challenged the above stated judgment and decree on the ground that the trial

court while deciding issues No. 1,5,and 6 had found that appellant (Amlok Ram) had proved that he was the owner of the disputed plot and was

in possession, but defendants (respondentsherein) had in the month of March 1979 forcibly started raising construction thereon. The trial court had

refused the grant of decree on the ground that relief of possession was not claimed. The appellate court had fallen into error when it held that

possession of the suit property was last (sic) to the appellant (Amlok Ram) because of forcible construction raised by respondents herein and this

view is contrary to the legal position because the act of trespass over the property was immediately objected by the real owner as soon as he came

to know about it and this did not amount to dispossession from the disputed plot when it was in the shape of vacant plot. Possession in such cases

always remains with the title holder and raising of illegal construction over a portion of the vacant plot does not amount to dispossession of the

rightful owner. The appellant had never acquiesced in the act of trespass committed by respondents, but he objected and had filed immediately suit

for injunction. Substantial question of law was also framed in the memo of appeal in the following form:

As to whether an act of trespass manifested by raising of an illegal construction over a plot of land lawfully owned and possessed by the owner

can amount to dispossession of the true owner and would necessitate the filing of the suit for possession?

Both the above stated appeals were admitted to hearing. As both of them have arisen from one judgment and decree, so they would be decided

by this common judgment.

The substantial question of law raised in the memo of appeal (No. 11/86 Supra) was taken by this court as a substantial question of law arisen in

the appeal which was admitted for hearing.

The factual matrix of the case briefly stated is that plot bearing No.99 measuring 60'x30' was on Dec. 30, 1974 allotted by the PRO, Jammu in

favour of the appellant Amlok Ram (of appeal No. 11/86) and properietary rights were conferred upon him on 3.3.75. The plot was lying vacant

and on March 23, 1979, he learned that respondents Harbajan Singh and Charan Singh had started raising some construction over it. He on

26.12.83, filed suit for permanent prohibitory injunction with consequential relief of mandatory injunction. Prohibitory injunction was to the effect

that respondents may be perpetually restrained to raise further construction on the disputed plot and they may be mandated to remove the ""malwa

of the already raised structure. Respondents Harbajan Singh and Charan Singh had filed the written statement on 19.5.1979 wherein specific plea

was taken that Kirpal Singh (son of defendant Charan Singh) and now appellant in appeal No. 6/86 was raising construction and he is in actual

possession of the plot in dispute. On this revelation, appellant Amlok Ram filed an application for impleading him as a party defendant. The

application was allowed and Kirpal Singh was impleaded as defendant3 who filed written statement on 14.01.1980 wherein he took the plea that

plaintiff Amlok Ram was never in possession, but he had been in continuous and uninterrupted possession for the last more than 15 years. On the

pleadings of the parties, 7 issues were framed and they were to the following effect:

Whether the suit in the present form is not maintainable as the plaintiff is out of possession? OPD

Whether the suit is liable to be dismissed for misjoinder of parties? OPD

Whether the plaint is not verified according to law, if so, what is its effect? OPD

Whether the amended plaint is not filed within the specified time as such needs dismissal? OPD

Whether the plaintiff is the owner in possession of the suit land by virtue of an allotment by PRO? OPP

Whether the defendants forcibly without any right or authority and plaintiff's consent started construction on the said plot on 23.03.1978? If so,

what is its effect? OPP

Relief.

The plea of appellant Kirpal Singh was accepted that the suit in the present form was not maintainable as the plaintiff Amlok Ram was not in

possession of the disputed plot and he had not claimed relief of possession. Issues No. 1 and 2 were not pressed by the defendants and

accordingly decided in favour of the plaintiff (Amlok Ram). Issue No.4 was also decided in favour of the plaintiff Amlok Ram Issue No. 5 was

also decided in favour of Amlok Ram whereby it was held that he was owner and in possession of suit land by virtue of an allotment order issued

by the PRO Jammu. Issue No. 6 was decided in favour of the plaintiff (Amlok Ram) and it was held that defendant forcibly and without any right

or authority and plaintiff's consent started construction on the said plot on 23.03.1979. The plaintiff felt aggrieved that relief of injunction was not

granted in his favour though he was dispossessed during the pendency of the suit. He challenged the judgments and decrees of the trial court before

the first appellate court on 21.05.84 which was decided on 22.11.85. Further, he has challenged the judgment and decree of the first appellate

court by filing the 2nd appeal in this court which is appeal No. 11/86. Defendants, Kirpal Singh and his father Charan Singh, have challenged the

judgment and decree of the first appellate court against the order of the amendment of the suit. Defendant Harbajan Singh has been impleaded as

respondent1 in the appeal which stands registered as appeal No. 6/86.

Heard the arguments.

It has been contended by Mr. Wazir that in the application for amendment dated 01.04.85 (which was made before the first appellate court),

the appellant/applicant (Amlok Ram) had given no plausible explanation for the inclusion of the relief of possession in the plaint when admittedly he

stood dispossessed from March 17,1979. Defendant No.3 Kirpal Singh (appellant1 of appeal No. 6/86) had filed his written statement in the trial

court on 14.01.1980 and by that time he had raised the whole construction. In a suit for injunction cause of action arises when a threat of

dispossession is faced but in a suit for possession cause of action arises when the dispossession actually takes place. In the present case cause of

action had arisen before the filing of the suit and as no relief of possession was claimed so amendment of the plaint allowed by the first appellate

court runs contrary to law by violating the provisions of 0.2 Rule2 CPC. In rebuttal, it has been contended by Mr. John that cause of action arose

in the month of March 1979 when the unauthorised construction was started over the vacant plot which admittedly was owned by the plaintiff

Amlok Ram. He had the legal remedy to restrain the trespassers for committing the unauthorised acts which also included a mandate from the court

to remove the ""malwa"" which unauthorisedly had been accumulated over the plot.

From the perusal of the record of the trial court, it is found that the present suit of prohibitory and mandatory injunction was accompanied with

an application for the issuance of temporary injunction ( No.54 of 79 made under 0.39 Rules 1 and 2 CPC ). The trial court on 26.03.79 had

issued exparte adinterim temporary injunction in favour of the plaintiff (appellant Amlok Ram) which was served through the process server. Mr.

Kamlesh Chander, process server of the District Court, Jammu, had made the report EXPC on the back of the order that on spot he had found

the structure of one room in existence without wooden doors, windows and cement plastering. He had paid two visits on the spot but could not

find anybody occupying that structure. Under these circumstances, he had effected the service of the order by pasting a copy on the conspicuous

place of the structure. This exparte order of injunction was to be either confirmed or vacated after hearing the defendants therein. Defendants (

appellants of appeal No. 6/86 and respondent2 ) filed objections to this application, but did not argue to get the order vacated. In other words, the

order of temporary injunction remained unaltered meaning thereby further construction on the plot was prohibited and any violation of the court

order could visit with penal consequences. The defendants are required to (SIC) off this legal liability as to how in the presence of such a judicial

order, the construction was completed and plaintiff could be ousted to hold the possession of the plot. It is not understandable why their learned

counsel for the plaintiff ignored this order which is of great significance to arrive at the root of the controversy and disengage the truth from false

hood. It is hoped that the trial court will not skip over this aspect of the case and address itself in arriving at the correct conclusion. Already the trial

court has arrived at the finding that the disputed plot is owned by the plaintiff plaintiff(appellant Amlok Ram) and defendants have no right, title or

interest therein. This finding was confirmed by the 1st.appellate court. The case of the plaintiff in brief is that defendants forcibly had started the

construction over 8'xlO' of the portion of the vacant plot and the remaining portion was in his possession. The first appellate court has held that the

trial court was justified in holding that the plaintiff was out of possession and suit was not maintainable without seeking the relief of possession. The

contention of Mr. Wazir, that amendment of the suit was not justified by the first appellate court as dispossession had already taken place when

appellant Kirpal Singh (of appeal No. 6/86) was impleaded as a party, is not borne out from any evidence. As already stated, the adinterim

induction order passed by the trial court cannot be lost sight of as it has great relevance in evaluating any evidence or circumstance of the case.

Equally, it can be said that no cause of action for claiming the possession was available to the plaintiff when the suit was filed and there could be no

abandonment of this cause of action under 0.2 R.2 CPC. The first appellate court, while allowing the amendment, was swayed by the finding of

fact that the question of ownership and possession of the disputed land within 12 years were in favour of the appellant (plaintiff Amlok Ram). On

that view of the matter, the amendment was allowed. A party cannot be refused just relief merely because of some mistake, negligence,

inadvertence or even infraction of rules of procedure. Courts always give leave to amend the pleading of a party unless it is satisfied that the party

applying was acting malafidely or that by his blunder, he has caused injury to his opponent which may not be compensated by an order of costs.

Proposed amendment is not substituting any fresh cause of action and it cannot be said that suit for injunction is being converted into a suit for

possession because the whole controversy centres around for the alleged dispossession during the filing of the suit which fact can be determined

effectively by the trial court. On this view of the matter, there is found no legal force in the appeal of appellants Kirpal Singh and Charan Singh

(appeal No.6/86) which is accordingly dismissed and that the appeal of appellant Amlok Ram (11/86) has a substantial question of law which is

determined to the office that dispossession manifested by raising illegal construction over the plot of land lawfully owned and possessed by the

owner does not necessitate for filing fresh suit for possession when already suit for mandatory injunction is pending. The plea of appellant Kirpal

Singh that he had been in continuous and uninterrupted possession of the plot for the last more than 15 years when he filed written statement on

14.1.80. was negatived by the trial court and affirmed by the first appellate court and this question of fact cannot be looked into in the 2nd appeal.

On this view of the matter , appeal No. 11/86 is allowed. The office is directed to send back the record of the first appellate court as well as of the

trial court and the parties are directed to appear before, the trial court on Aug. 25, 1998. The trial court is directed to decide the suit within a

period of five months from the receipt of the record as already the parties have been litigating since 26.03.1979.