Veljibhai Muljibhai Patel and Another vs Jivrajbhai Dhanjibhai Patel

Bankim N. Mehta, J.—The Appellants-original Defendants have preferred this Second Appeal u/s 100 of the CPC on the following substantial question of law formulated by this Court.

Whether the lower appellate Court erred in allowing the appeal and reversing the judgment and decree passed by the trial Court and allowing the suit of the Plaintiff even though no relief as regards the possession is prayed for and relief prayed for is only with regard to permanent injunction?

The Respondent Plaintiff filed Regular Civil Suit No. 90 of 1983 in the Court of learned Civil Judge (Junior Division), Idar for injunction.

According to the Respondent-Plaintiff, suit plot was purchased by him by a registered Sale Deed on 2.3.1979 and since then the said plot runs in his name in the Government record as owner and occupier. The Defendants have no right in respect of the suit plot. Despite that they have broken compound wall from one side and have committed trespass and are preventing him from passing through the suit plot. The Defendants have also constructed temporary shed which had collapsed on account of cyclone. Despite that the Defendants are trying to reconstruct the shed. Therefore, the suit was filed for permanent injunction restraining the Defendants from entering on to the suit plot, making any construction thereon and also restraining them from obstructing him from making, repairing of the compound wall.

The Appellants-Defendants contested the suit by filing written statement at Exh. 12 contending that the suit is bad on account of delay, laches and acquiescence. It was also contended that the suit plot belonged to the ownership of Plaintiff and it was purchased by them by paying sale consideration of Rs. 30,000/- and possession of the same was given to them by the Plaintiff. Since then they are in actual possession of the suit plot and have made construction of compound wall on the east and west side of the plot. Therefore, it is not true that they have committed trespass on to the suit plot. The suit plot is in their actual possession. Therefore, the suit is required to be dismissed.

On the basis of pleadings, issues at Exh. 32 were framed. Parties adduced evidence. At the end of trial, the suit came to be dismissed by the judgment dated 28.2.1985. Therefore, the Plaintiff preferred appeal being Civil Appeal No. 23 of 1988 in the Court of learned District Judge, Sabarkantha at Himatnagar. The lower appellate Court after hearing learned advocates for the parties by its judgment dated 15.12.1988 allowed the appeal and set aside the judgment and decree passed by learned trial Judge and restrained the Respondents-Defendants therein from entering upon suit plot No. 5297 admeasuring 30 x 48 mtrs. East and West and 15 x 24 mtrs. North-South and also restrained the Defendants from making any construction by way of demolition or raising of compound wall on the suit plot.

Being aggrieved by the said decision, the Appellants have preferred this appeal on the substantial question of law formulated by this Court.

I have heard learned advocate Mr. Suthar for learned advocate Mr. Majmudar for the Appellant and learned advocate Mr. Amin for the Respondent at length and in great detail.

Learned advocate Mr. Suthar has submitted that the suit was filed for injunction only and without any substantive prayer of possession the suit was not maintainable. Therefore, the lower appellate Court committed error in passing the impugned judgment. He has relied upon the decision of the Hon''ble Supreme Court in the case of Sri Thimmaiah v. Shabira reported in 2008(1) G.L.H. 541.

Per contra learned advocate Mr. Amin has submitted that the Plaintiff could have amended the plaint even at Second Appeal stage and impugned judgment cannot be set aside only on the ground that the possession is not claimed. He has also submitted that it is settled law that amendment can be permitted at any stage of the suit and therefore amendment could have been prayed for by making a prayer for possession at the Second Appeal stage to avoid multiplicity of proceedings and therefore the impugned judgment cannot be set aside. He has relied on the decisions in the cases ofMansukhlal Bachubhai Parmar v. State of Gujarat reported in 2009(3) G.L.H. 419 and Rajesh Kumar Aggarwal and Others Vs. K.K. Modi and Others,

There is no dispute that the suit for permanent injunction only was filed in the trial Court. It is also admitted fact that the Plaintiff was not in actual possession of the suit plot. Therefore, though the Plaintiff was not in possession of the suit plot, he did not claim any relief for possession thereof. In decision of Sri Thimmaiah v. Shabira (supra) the Hon''ble Supreme Court has observed as under:

para 6 - Undisputedly, the suit was one for permanent injunction and in such a suit the Plaintiff has to establish that he is in possession in order to be entitled to a decree for permanent injunction. The general proposition is well settled that a Plaintiff not in possession is not entitled to the relief without claiming recovery of possession. Before an injunction can be granted it has to be shown that the Plaintiff was in possession.

In the instant case it is not in dispute that the Courts below have recorded that the Defendants were in actual possession of the suit plot. It also appears that notice Exh. 56 dated 12.1.1983 also alleged that the Defendants committed trespass. Therefore, it is proved that the Defendants were in possession of the suit plot. In view of the fact that the Respondent-Plaintiff did not claim possession of the suit plot in view of the decision in the case of Sri Thimmaiah v. Shabira (supra) the suit for injunction only was not maintainable.

As regards the submission of Mr. Amin that amendment can be made at the stage of Second Appeal also. In absence of such prayer, this Court is not required to go into that aspect of the matter. In the decisions relied on by him lay down that amendment under Order 6 Rule 17 of the Code of CPC requires to be allowed to decide real question in controversy if it does not change the nature of the suit. There cannot be any dispute with regard to this legal possession but in view of the fact that when no such prayer is made by way of appropriate proceeding, submission in that regard cannot be accepted.

In view of above, lower appellate Court committed error in allowing the appeal and reversing the judgment and decree passed by the trial Court and allowing the suit even though no relief as regards possession was prayed for and only prayer was with regard to permanent injunction. Therefore, this substantial question of law is answered accordingly.

In the result, the Second Appeal succeeds. The impugned judgment and decree passed by lower appellate Court in Regular Civil Appeal No. 23 of 1985 on 15.12.1988 is set aside and the judgment and decree passed by the trial Court in Regular Civil Suit No. 90 of 1983 on 28.2.1985 is restored. No order as to costs.