Shakuntala And Others vs Latadevi And Others

The appellants/defendants have filed the present appeal being aggrieved by the judgment dated 21.08.2017 passed by the District Judge, Ratlam in Civil Appeal No.16A/2017 whereby the appeal filed by the respondents/plaintiffs has been allowed and the judgment and decree dated 02.03.2017 passed by the 1st Civil Judge, Class-I dismissing the suit has been reversed/set aside.

Facts of the case, in short, are as under:

The plaintiff No.1 is mother of plaintiff Nos.2 and 3. Initially they filed the suit for permanent injunction against the defendants. According to plaintiffs they are owner of agricultural land bearing Survey No.937/7/4 (Area 0.055 hectares) and Survey No.937/8/6 (Raqba 0.105 hectares). Both the lands are adjacent to each other and in possession of the plaintiffs. The south side of the above land bearing Survey No937/8/6 (area 0.090) was of the ownership of Laxman (husband of plaintiff No.1) and father of plaintiff Nos.2 and 3 who died on 29.12.2012. After the death of Laxman Ji on 10.04.2014 the defendants have started digging the holes in Survey No.937/8/6 by way of JCB. The plaintiffs objected and the defendants claimed that they are owner of the land bearing Survey No.937/8/6, hence, the cause of action arose in favour of the plaintiffs in respect of Survey No.937/8/6 (area 0.105 hectares) (in short hereinafter referred to "suit land").

The defendants have filed written statement by submitting that Laxman had sold the land bearing Survey No.937/7/1 (area 0.007 hectare) vide registered sale deed dated 01.10.2007 to defendant No.2. Thereafter, Laxman had again sold the land 15x50 sq.ft. by registered sale deed dated 05.02.2008 to defendant No.1 and possession was handed over and since then they are in possession over the said land. They have never dug the hole in Survey No.937/8/6, hence the suit liable to be dismissed.

The trial Court framed four issues for adjudication. The plaintiffs and defendants examined their witnesses and produced documentary evidence. After appreciating the evidence on record while answering issue No.1 the trial Court has held that the plaintiffs are owner of land bearing Survey No.937/8/6 but they are not in possession. While answering the issue No.2 the trial Court has held that the defendants have encroached the suit land of plaintiffs illegally. Despite these findings, vide judgement and decree dated 02.03.20174 the learned civil Judge has dismissed the suit on the ground that though the plaintiffs have proved the ownership but they did not seek any relief of possession. At the time of filing of the suit the plaintiffs were not in possession and they did not seek relief of possession, hence, the suit has been dismissed.

Being aggrieved by the denial of decree the plaintiffs filed the F.A.No.16-A/17 and the defendant Nos.1 to 3 also filed the Civil Appeal 17-A/2017. Vide judgement dated 21.08.2017. Learned District Judge has allowed the appeal filed by the plaintiffs and dismissed the appeal filed by the defendants (17-A/2017) by directing the defendants to remove the construction made over Survey No.937/8/6 (30x50 sq.ft.).

Being aggrieved by the aforesaid judgement dated 21.08.2017 the defendants have preferred the present second appeal only on the sole ground that learned trial Court has rightly dismissed the suit for want of relief of possession but the first appellate Court has wrongly granted the decree of demolition the alleged construction, the suit is barred by Section 34 of the Specific Relief Act.

It is not in dispute that the plaintiffs are owner of land Survey No.937/8/6 (area 0.105 hectare). Father of the plaintiff Nos.2 and 3 was owner of land Survey No.937/7/1 (area 0.090 hectares) which was sold to the defendant Nos.1 and 2 by two different sale deeds. The defendants started digging the holes in the land bearing Survey No.937/8/6, the plaintiffs have immediately rushed to the civil Court for the relief of permanent injunction. They also filed the application under Order 39 Rule 1 and 2 of the CPC. Vide order dated 03.05.2015 application was dismissed. Thereafter they preferred a M.A.No.7-A/2014 and vide order dated 07.08.2014 the defendants were restrained to raise any construction in Survey No.937/7/1 without conducting a diversion and demarcation and division of the land purchased by them. Thereafter, the plaintiffs filed an application under Order 6 Rule 17 of the CPC in order to seek the relief of mandatory injunction of demolition of construction. Vide order dated 06.05.2015 the Court has allowed the amendment and granted the liberty to the defendants to make consequential amendment in the written statement, therefore, after amendment the plaintiffs have also sought relief of removal of illegal construction.

The plaintiffs have filed copy of order dated 13.06.2014 (Exhibit P/7) whereby Tehsildar has restrained the defendants to raise any construction over Survey No.937/8/6. The plaintiffs have also filed panchnama submitted in the Court of Tehsildar and according to which the defendants were found in possession over the land bearing Survey No.937/8/6 (30x50 sq.ft.) which is illegal (Exhibit P/5 & P/6). Despite the aforesaid report civil Court has wrongly held that the plaintiffs have failed to prove that on which area the defendants have encroached and raised the illegal construction of the land bearing Survey No.937/8/6. The civil Court has found the plaintiffs are owners of the land bearing Survey No.937/8/6 and the defendants are illegally in possession but wrongly denied the decree of permanent injunction. The Civil Court has failed to see that the plaintiffs have also sought the relief of mandatory injunction for demolition of the construction which has been completed during the pendency of the civil suit, despite the injunction order. Hence, the first appellate Court has rightly held that the defendants are liable to be directed to demolish the illegal construction raised during the pendency of the suit. The first appellate Court has only granted the decree of demolition of construction not the relief of possession which was never claimed by the plaintiffs. There is no bar to grant decree of mandatory injunction as the defendants have completed the construction during pendency of the suit.

The Division Bench of this Court in case of Santoshchandra & Others Vs. Smt. Gyansundarbai and Others, reported in 1974 MPLJ has held that effect of subsequent occurrence the plaintiff is in possession suing for declaration of title but loosing the possession during the pendency of suit. It is not obligatory for him to claim the relief of possession by way of amendment. The tenability of the suit is not effected.

"7. In the instant case it has been urged on behalf of the defendants-respondents that the plaintiffs were bound to seek either the relief of injunction restraining the other side from executing the decree against them or the relief of possession as a consequential relief and for having failed to do so the suit is liable to be dismissed. So far as possession is concerned it was not disputed before us that the plaintiffs were in possession on the date of the suit and they were dispossessed by the defendants during the pendency of the suit in execution of the decree obtained by the late Jhunnobai against the respondents 2 and 3 It is no doubt true that it was open to the plaintiffs to seek the relief of possession by amending the plaint when they lost possession under the decree, in question. But on that ground alone their right to seek a declaration cannot be denied. Ability of the plaintiff to seek further relief within the meaning of Section 34 means ability at the time of the institution of the suit and a suit for declaration which was maintainable at the time of the institution does not cease to be so on the happening of some subsequent event which may necessitate consequential relief. The right of plaintiff to maintain a dec- laratory suit is not affected by the fact that possession was lost during the pendency of the suit. Thus the mere fact that the plaintiffs did not seek the consequential relief of possession by amending the plaint would not affect their right to seek a declaration of the title if that right was available to them on the date of the suit. A similar view was expressed in Surendra Narayan Deb v. Bhairaben-dra Narayan Deb"

The plaintiffs have filed the suit only when the defendants have started digging the holes, therefore, it cannot be held that the defendants were in possession of the suit land. The plaintiffs immediately approached the Court of Tehsildar as well as civil Court by way of suit alongwith an application under Order 39 Rule 1 and 2 of the CPC. The injunction was granted in favour of the plaintiffs by both the Courts and despite that the defendants have completed the construction and plaintiffs have immediately filed an application for demolition of construction hence first appellate Court has not committed any error of law while granting the relief of mandatory injunction.

Hence, the present appeal, having no substantial question of law involved, is hereby dismissed.