Smt. Salochana Devi vs Sita Ram Malik

J.V. Gupta, J.—This is Plaintiff''s second appeal, whose suit for permanent injunction has been dismissed by both the Courts below.

The Plaintiff filed the suit on the allegation that a street passes between the house of the parties; that the property owned by the Defendant is, in fact, situated towards west of the said disputed passage; and that the Defendant has no right to encroach upon the said site, in dispute, or to construct upon it. On these allegations, it was prayed that, by means of a perpetual injunction, the Defendant be restrained from taking the possession of the site,in dispute, or otherwise from making any construction on the said site resulting in obstruction to the user of the said site by the Plaintiff. In the written statement, it was denied by the Defendant that there is any road or throughfare between the house of the Plaintiff and the Defendant. According to him, the site, in dispute, forms part of the property owned by him. The trial Court found that there is no road or thoroughfare between the houses of the Plaintiff and the Defendant, as alleged in the plaint. It was further found that, though the Defendant has raised construction over the site, in dispute, the said construction cannot be said to be on the road or thoroughfare. The other plea of the Defendant that the suit was not maintainable in the present form or the Plaintiff was estopped by his conduct and act to file the present suit were negatived. In view of these findings, the Plaintiff''s suit was dismissed. In appeal, the learned Senior Subordinate Judge (with enhanced appellate powers) reversed the said finding of the trial Court and came to the conclusion that there is a road 24 foot wide in-between the house of the Plaintiff and the Defendant, However, in spite of this finding, the appeal of the Plaintiff was dismissed on the ground that the suit for permanent injunction was not maintainable because at present there being a construction on the site, in dispute, no direction could be issued for the demolition of the same as no such relief was claimed in the plaint. However, it was held that even if it be presumed that the Defendant made construction on the site, in dispute, immediately after the institution of the suit, i. e., with in 2/3 days of its institution, even then the fact remains that the relief of prohibitory injunction could not have been granted to the Plaintiff as long as the said construction remains on the site, in dispute, as observed earlier. Dissatisfied with the same, the Plaintiff has filed the second appeal whereas Cross-Objections had been filed on behalf of the Defendant, challenging the findings of the lower appellate Court,

Learned Counsel for the Plaintiff-Appellant contended that, after having found that the Defendant has encroached upon the site, in dispute, which is a road the suit could not be dismissed on the ground that no such prayer for mandatory injunction was made in the plaint. For this purpose, Civil Misc. No 001-C of 1978 was also moved in this Court, in which it was prayed that the necessary amendment may be allowed in the plaint in the interest of justice. On the other hand, the learned Counsel for the Defendant- Respondent submitted that it has been wrongly held by the lower appellate Court that there was a road in-between the house of the parties. According to the learned Counsel the finding of the trial Court in this behalf was correct but the same has been reversed arbitrarily on surmises and conjectures.

After hearing the learned Counsel for the parsies and going through the relevant evidence on the record, I do not find any merit in the contention raised by the learned Counsel for the Respondent. On the appreciation of the evidence on the record, it has been rightly held that there was a passage in-between the houses of the parties which has been encroached upon by the Defendant-Respondent. Once it is so held then the Plaintiff could not be non-suited on the ground that no prayer for mandatory injunction was made in the plaint. Once it is found that the Defendant had encroached during the pendency of the suit, then the Court was within its right to grant this relief to the Plaintiff even if it was not specifically asked for. The Defendant could not be allowed to take benefit of his own wrong.

As a result of the above discussion, this appeal succeeds, the judgments and decrees of the Courts below are set aside and the Plaintiff-Appellant''s suit is decreed with the direction that the encroachment made by the Defendant-Respondent on the site, in dispute, will be removed by him within three months from today, failing which the Plaintiff-Appellant will be entitled to get the same removed by execution of the decree. The Cross-objections are dismissed.