This second appeal was against a judgment dismissing a suit for permanent and mandatory injunction. The High Court held that since the defendants were in possession of the suit property, the plaintiffs could not maintain a suit merely for injunction without seeking possession of the land.
The second appeal and the stay application were dismissed. No costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
: J U D G M E N T :
S.B. CIVIL SECOND APPEAL NO.192/2013
Shantilal vs. Hari Singh & Ors.
Date of Judgment
:: 01st May, 2014
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. Rameshwar Hedau, for the appellant.
BY THE COURT:
This second appeal under Section 100 CPC is directed against judgment and decree dated 19.08.2013 passed by Additional District Judge, Sumerpur, whereby, the appeal filed by the respondents against judgment and decree dated 09.12.2010 has been allowed and suit filed by the appellant has been dismissed.
The facts in brief may be noticed thus: the appellantplaintiff filed a suit for permanent and mandatory injunction against the respondents with the allegation that the plaintiff was in possession of plot No. 23 Nai Abadi, village Ramnagar, regarding which, Patta was issued on 23.04.1961; on 05.09.2003 when plaintiff went to the said plot, the defendants were raising construction on plot No. 24 and threatened to take possession of plaintiff's plot as well; a notice was got issued on 06.09.2003 from the counsel; whereafter, on 09.04.2003 the defendants started raising construction and have raised a 5 ft. high wall; the plaintiff was the owner of the said plot and the
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defendants have no right to raise construction; it was prayed that by way of permanent injunction, the defendants be restrained from interfering in the possession and the wall marked A to B be removed.
The suit was resisted by the defendants and it was claimed that the space where the construction has been raised belong to the defendants.
The trial court framed five issues; on behalf of the plaintiff - three witnesses were examined and six documents were exhibited; on behalf of the defendants – five witnesses were examined and two documents were exhibited.
After hearing the parties, the trial court came to the conclusion that the defendants have raised a 5 ft. wall on the plot belonging to the plaintiff and the plea raised by the defendants regarding the plot belonging to Kan Singh was decided against the defendants and, consequently, decreed the suit, whereby, the defendants were restrained from raising any construction and interfering with plaintiff's possession; further they were also directed to remove the construction within a period of two months.
Feeling aggrieved, the defendants filed first appeal.
The first appellate court came to the conclusion that as per the case set up by the plaintiff, the defendants were in possession of plaintiff's plot of land and without seeking possession, the plaintiff could not have sought the permanent and mandatory injunction qua the piece of land, which was in possession of the defendants and, consequently, dismissed the
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suit filed by the plaintiff.
It is submitted by learned counsel for the appellant that the appellate court fell in error in dismissing the suit filed by the plaintiff; the suit for permanent and mandatory injunction without even seeking possession of the suit property was maintainable and the appellate court clearly fell in error in holding the same against the plaintiff.
I have considered the submissions made by learned counsel for the appellant and have gone through the judgments as well as the record of both the courts below.
From a perusal of the plaint and the relief sought therein, it is apparent that the plaintiff came out with the case that the defendants have trespassed on the plaintiff's land and have raised construction of a 5 ft. high wall and, consequently sought mandatory injunction for removal of the wall as well as a permanent injunction against the defendants not to interfere in his possession; the averments made in the plaint alongwith site map filed therewith clearly indicated that the defendants had already raised construction of the wall and, therefore, were in possession of the land, which was claimed by the plaintiff to be belonging to him and which fact was found by the trial court in his favour.
The fact that the plaintiff had come out with the case in the plaint that he had lost possession of the part of the plot, wherein, the wall had been construction, it was incumbent on him to file a suit seeking possession of the said portion, wherein, the wall was constructed and a mere suit for permanent
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injunction seeking restraint against interference and mandatory injunction for removal of the wall was not maintainable and, therefore, the judgment passed by the first appellate court cannot be faulted on that count.
In view of the above discussions, no substantial question of law arises for consideration in the present appeal and the same is, therefore, dismissed. The stay application is also dismissed.
No costs.
(ARUN BHANSALI), J.
A.K.Chouhan/-
2 issues framed by the court
Whether a suit for permanent and mandatory injunction is maintainable when the property is already in the possession of the defendants.
Whether the first appellate court erred in dismissing the suit for seeking injunctions without a suit for possession of the land.
1 provisions across 1 enactments
Shantilal
Hari Singh
Arun Bhansali
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
