Darshana Devi Others vs Gajay Singh

Arun Kumar Goel, J.—This appeal has been preferred by the Legal Representatives of Des Raj Sharma who was arrayed originally before

the trial court, hereinafter referred to as the defendant, is directed against the judgment and decree of the first Appellate Court passed in File No.

15/Appealon25.07.1996. By means of this decree, appeal of the defendant was dismissed and judgment and decree of the trial court passed in

favour of the respondent, hereinafter referred to as the plaintiff on 14.05.1992 in File No. 73/Civil has been upheld.

Plaintiff preferred a suit for mandatory injunction against the defendant on the averments that he purchased land measuring 1 kanal and 2 marlas,

comprising in Khasra No. 331, situated at village Channi Himmat, Tehsil and District Jammu, vide Sale Deed EX.PA. This land was purchased by

him from Vaishno Charan SinghPW by means of the said Sale Deed. This Sale Deed is registered in the office of Sub Registrar, Jammu on

30.03.1984 on which date it was executed. Further case of the plaintiff was that he obtained possession from the Vendor and he surrounded the

same by putting up fence. He claims that defendant has encroached 2 Marias of land in the year 1985, when for the first time he raised Kacha

Khokha and Pacca construction was raised since 1989 in place of the earlier Kacha Khokha. Defendant was approached at this point of time by

the plaintiff and meetings took place between the parties till December, 1989.

On the refusal of the defendant to vacate land in question, plaintiff obtained for demarcation, when it was reported that encroachment has been

done by the defendant over 2 Marlas of land, out of what was purchased by the plaintiff vide EX.PA. Another plea put up by the plaintiff was that

defendant is a nonstate subject and therefore, he cannot acquire/retain possession of immovable property in the State of Jammu and Kashmir.

Since defendant with a mischievous design intends to raise further construction, therefore, suit in question.

This suit came to be contested and resisted by .the defendant, who amongst things pleaded that the Court has no jurisdiction to try the suit, it

being bad for nonjoinder of parties and the same having not been properly valued for the purposes of Court fee and jurisdiction. On merits, it was

asserted by the defendant that he is residing in the land measuring 2 Marlas for the last more than 25 years, which was purchased by him from Shri

Vaishno Charan Singh about 25 years back and he has constructed Kacha House. Thereafter two Pacca rooms were constructed. Plaintiff claims

himself to be a State Subject.

On the aforesaid pleadings of the parties, trial court framed the following issues:

i. Whether the plaintiff purchased land measuring 1 kanal 2 marlas out of khasra No. 331, Khewat No. 190 from Vaishno Charan Singh and

obtained possession of the same? O.P.P.

ii. Whether the defendant raised a Kullah in the year 1985 on land measuring 2 marlas approximately out of land purchased by the plaintiff without

any right? OP. P.

iii. In case issue No. 1 and 2 are proved in negative. Whether the defendant is in continuous possession of land measuring 2 marlas (land in

dispute) for the last more than 25 years uninterruptedly? ... O.P.D.

iv. Whether the defendant has acquired ownership right in land in dispute on account of adverse possession (prescription)?

...O.P.D.

v. Whether the defendant purchased land in dispute from Shri Vaishno Charan Singh about 25 years back and constructed a Kucha house

thereupon.

... O.P.D.

vi. Whether the defendant is a permanent State Subject and as such is entitled to acquire property in the State? ... O.P.D.

vii. Whether the suit has not been properly valued for the purposes of court fees and jurisdiction, if so, what is proper valuation?

... O.P.D.

viii. Whether this Court is not competent to try this suit?

... O.P.D.

ix. Whether the suit is bad for misjoinder of parties, if so, how?

... O.P.D.

x. To what relief, the plaintiff is entitled? ... O.P.P.

After conclusion of the trial, suit of the plaintiff was decreed. While passing the decree, it was observed by the trial Court that a decree for

possession is being passed on the condition that the plaintiff deposits the court fees on the amount of Rs. 3,000/, which according to it was the

market value of the land in question. When the matter was taken up in the appeal by the defendant, he was unsuccessful and the decree of the trial

Court was upheld, hence this Second Appeal at the instance of the defendant. When this appeal was admitted by this Court, following three

substantial questions of law were framed:

1) Whether in the absence of relief of possession claimed by the respondentplaintiff in his suit, the trial court as well as the appellate court is

empowered to suo moto convert the suit for mandatory injunction into the suit for possession and grant the relief of possession to the

respondentplaintiff?

2) Whether a NonState Subject can hold immovable property in proprietary rights? If so what is the status of appellants herein for holding

property in dispute?

3) Whether the respondentplaintiff is entitled to possession the land more than the land sold to him by virtue of the sale deed executed on March

30, 1984?

Before dealing with the merits of the case on the basis of these substantial questions of law, it is necessary to briefly refer to the evidence

examined by the parties. Mr. Kuldip Singh, Attorney of the plaintiff has appeared on behalf of the latter and has produced on record, Sale Deed

EX.PA, besides producing a copy of the report of the Nishan Dehi given by the Patwari S. Dalip Singh as well as plan prepared after the

encroachment was ascertained. In addition to these two witnesses, Vaishno Charan Singh, Seller has also stepped into the witness box. Patwari

has produced the plan EX.PB indicating extent of encroachment made by the defendant over a portion of the land, which was purchased by the

plaintiff from PW Vaishno Charan Singh. When a reference is made to the statement of these PWs and the documents produced and proved by

them, the title of the land measuring 1 kanal and 2 marlas of which 2 marlas, which is subjectmatter of the present appeal vesting in the plaintiff is

clearly established. No doubt, an attempt has been made by the defendant by leading oral evidence of DWs Chuni Lal, Chamail Singh, Jagdev

Singh, Sham Lal and Om Parkash. Defendant while appearing as his own witness claims that the land in question has been given to him by Om

Parkash by 16/17 years before. Amongst other things, he has further gone on record that he purchased the land from Om Parkash and his brother

has misplaced that document. Though it was not got attested from the Court. Consideration for giving this land to the plaintiff received by Om

Parkash was Rs. 2.000/. Chuni Lal, Chamail Singh, Jagdev Singh and Om Parkash have tried to support the oral defence put up by the defendant.

No documentary evidence has been produced by the defendant. This is the entire evidence that was examined by both the parties before the trial

court.

Learned Senior Counsel appearing for the defendant urged that both the Courts have fallen into an error by granting relief of possession, which

was neither claimed in the plaint as originally filed nor its amendment was asked for by the plaintiff, therefore, the appeal was liable to be allowed.

When a reference is made to the pleadings filed by the parties before the trial Court, it is manifestly clear that plaintiff has put up his case

specifically on the basis of his title having purchased the land in question. He alleges the defendant to be a rank trespasser and in case mandatory

injunction as prayed for is not allowed in his favour, he was likely to be materially prejudiced as irreparable loss and injury was likely to be caused

to him. He has narrated the facts, which constituted cause of action for maintaining the suit as filed before the trial Court starting from the date of

purchase till raising of the construction over the land in suit. Fortunately for the plaintiff, defendant admits having made Pacca construction in the

year 1989. Not only this, but tenor of the written statement shows that defendant firstly claimed to have purchased the land and has also put up title

in himself by being in continuous possession for the last 25 years. This matter is covered by Issues 3 and 5 framed by the trial court. No doubt,

plaint is not happily worded. Still the question that needs consideration is that whether the trial court was justified in granting the relief of possession

or not. Fate of this appeal will depend upon the findings recorded on this point. As per Order 7, Rule 7 of the Code of Civil Procedure, relief is to

be specifically stated. It shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same

extent as if it had been asked for. This rule is also applicable to any relief claimed by the defendant in his written statement.

Only safeguard, which has to be kept in view is whether without amending the plaint opposite party, defendant in the case was put to great

surprise and rather prejudiced in any manner or not, and secondly when such a relief is granted by the Court under the later part of Order 7, Rule

7 of the Code of Civil Procedure, the cause of action, is changed or not. If the Court comes to the conclusion that the opposite site is either

prejudiced or cause of action is changed, it would be loath to grant any such relief in favour of the plaintiff while exercising powers under Older 7,

Rule 7 of the Code of Civil Procedure In my considered view, plaintiff could not have said anything over and above what was pleaded in his suit,

even if relief of possession was claimed by him. A reference to the plaint clearly indicates that there were enough facts to enable the trial court to

have passed decree in question. On the other hand, when a reference is made to the written statement, it is manifestly clear that no objection

regarding frame of suit has been raised as a defence. Above all defendant has put up a plea of adverse possession in the suit while praying for its

dismissal.

It hardly needs to be clarified that the defendant could not have claimed adverse possession against himself. The moment this plea was put up,

it supposes that the title of the property vests in somebody else, which in the present case was claimed by the plaintiff in no uncertain terms. That

being so, there was nothing, which prohibited the court below to have granted the relief of possession while decreeing the suit of the plaintiff. So far

as matter relating to court fee is concerned, it is clearly a fiscal issue and is a matter between the State and its subject like plaintiff. Though it is

admitted case of the parties that needful was done by paying the requisite court fee within the time was allowed by the trial court.

In AIR 1970 Allahabad 307, Bhondeo and others, Appellants Vs. Udatoo, Respondent, it was held as under:

Learned counsel for the defendantsappellants points out that the matter arises in the district of Tehri Garhwal, that the district originally formed

the State of Tehri Garhwal which merged in 1949 in the United Provinces, and urges that there is no law applying the Indian Easements Act, 1882

to that area. He has referred to the provisions of the Merged States (Laws) Act, 1949 to show that the Indian Easements Act, 1882 is not one of

the Acts mentioned in the schedule to that Act. Reference has also been made to Section 3(2) of the U.P. Merged States (Application of Laws)

Act, 1950 and it is pointed out that in the absence of the Notification contemplated by Section 3(3) of the Indian Easements Act, even if referred

to by Section 3(2), cannot be said to have been extended to that area.

Learned counsel for the plaintiffrespondent concedes that the Indian Easements Act does not apply as such to the district of Tehri Garhwal. But he

relies upon the principles incorporated in the provisions of that Act. It does appear that in respect of areas where the Indian Easements Act in

terms does not apply, the Courts in this country have applied that principles incorporated there. It is not necessary to set out the several decisions

of the Courts in that regard. It seems to me sufficient to refer to what was said by TekChand, J. in Nunia Mai v. Mahadev, AIR 1962 Punj 299:

there is an imposing array of authority for the view that in those parts of the country where Indian Easements Act is not in operation, there is no

reason why the principles underlying the provisions of the Indian Act, should not be followed in so far as they embody the rules of equity, justice

and good conscience. Where the provisions of the Act coincide with the equitable principles, the Indian Easements Act will equally serve as a safe

guide and as the measure and standard of such principles."" I respectfully agree with those observations. In the circumstances, I have no hesitation

in holding that the courts below were plainly right in recognising a right in the plaintiffrespondent to flow water through the Gool passing through the

defendantsappellants' fields for the purpose of irrigating his own fields.

The next contention of learned counsel for the defendantsappellants is that the plaintiffrespondent had merely prayed for a prohibitory injunction

and the lower appellate court should not have granted a mandatory injunction instead. It cannot be disputed that the appellate court had as wide a

jurisdiction as the trial court in granting relief, and it is now settled law that when disposing of a suit the trial court has power to mould the relief and

to grant such appropriate decree as is called for by the merits of the case. It is pointed out that having regard to the terms of the trial court decree,

it was for the plaintiffrespondent to have appealed and to have claimed a mandatory injunction, and in the absence of such appeal, it is said, the

lower appellate court should not have granted the decree which it did. Now, Order 41, Rule 33 of the Code of Civil Procedure clearly declares

that the appellate court shall have power to pass any decree which ought to have been passed or made as the case may require and this power

may be exercised by the Court in favour of all or any of the respondents, although such respondents may not have filed any appeal or objection. It

seems to me that what the lower appellate Court did cannot be said to have exceeded the power conferred upon it by Order 41, Rule 33.

In AIR 1983 Orissa 199, Arakhita Swain, Appellant v. Kandhuni Swain, Respondent, it was held as under:

Learned counsel for the appellant has further urged that as the prayer in the plaint is for a declaration that the deed of adoption dt. 2341960 is

invalid, the declaration by the courts below that the defendant is not the adopted son of the late Choudhury and the late Chitra is invalid being in

excess of the relief claimed by the plaintiff. Reference may be made first to the prayer in the plaint which is as follows:

The plaintiff, therefore, prays that the Hon'ble Court may be pleased to pass a decree in her favour:

(i) For a declaration that the deed dt. 2341960 is void and inoperative under the law and as such the defendant acquired no status underthe same.

(ii) For the costs of this suit and

(iii) For such other relief or relies as the Hon'ble Court deems proper under the circumstances.

In the plaint it has been specially stated by the plaintiff that she and her husband had not given the defendant in adoption, that there was never any

adoption or any giving and taking ceremony, that even if there was any adoption, it was not to their knowledge that the defendant was never

treated as the adopted son, by his adoptive parents and that the defendant had not acquired any status under the deed of adoption. In AIR 1953

Orissa 285, Kishore Jena v. Rupa Jena, it was held that when and if the question arose as to whether a particular relief had been asked for, the

whole of the plaint should be taken into consideration and the substance and not merely the form of the plaint, should be looked into and that under

Order 7. Rule 7 C.P.C., the court could grant a relief which had not been specifically prayed for, if the court thought it just and proper that such a

relief should be given. In the present case the factum of adoption was firmly denied by the plaintiff in the plaint while the defendant in his written

statement clearly asserted the plea of adoption. An issue was framed on this question and parties led full evidence in this regard. In such

circumstances there can be no question of any prejudice or lack of notice to the defendant. In these circumstances I would agree with the learned

lower appellate court that the plaintiff is entitled to a declaration that the defendant is not the adopted son of the late Choudhury and the late

Chitra.

To similar effect is that AIR 1986 Orissa 281, Managobincla and others, Appellants v. Brajabandhu Misra, Respondent and AIR 1985

Punjab and Haryana, 89, Karam Dass and others, Appellants v. Som Parkash, Respondent.

In AIR 1971 Madhya Pradesh 191, Kulsekharapatnam Hand Match Workers' Cooperative Cottage Industrial Society Ltd., Madras State,

Appellant v. Radhelal Laloolal and others, Respondents, a Division Bench while dealing with matter relating to Order 7, Rule 7 C.P.C., observed

as under:

Next, it was urged that the suit, as framed, was not based on the original contract and its breach but on the alleged agreement of 16th

October, 1964 and as on that date, the contract of agency had ceased to be in force, the act of the erstwhile agent in entering into such agreement

was not an act binding on the principal. So far as the frame of the suit is concerned, learned counsel for the seller is right. The suit, as framed, is for

the enforcement of the agreement dated 16th October, 1964. If the plaint were to be literally construed, the suit must fail for the reason that the

buyer in his notice dated 23rd December, 1964 made a demand for payment of Rs. 12,000/ as damages for breach of contract. After narrating the

events leading to the breach, he stated that there was a settlement of his claim by agreement of 16th October, 1964, but as the defendants had

failed to adhere to that agreement, the agreement of 16th October, 1964 ""stands cancelled"". That being so, the suit as framed may not be

maintainable. But we are inclined to think that the buyer would nevertheless be entitled to a relief on an alternative basis for damages for breach of

the original contractas the right to such relief flows out of the pleadings of the parties. The fact of breach was put in issue as also the quantum of

damages. The parties, therefore, knew what they were litigating for.

On examination of the aforesaid precedents as well as in the face of the pleadings of the parties and evidence lead during the course of trial, it

is clear that what has to be seen is the substance of pleadings and not its form. Thus it is held that this is not a cases of converting of a suit for

mandatory injunction into that of possession, but it is simplicitor of case, where trial court had exercised jurisdiction vested in it under Order 7,

Rule 7 C.P.C. and had moulded the relief, which was permissible by law to be done. Nothing to the contrary has been brought to my notice on this

aspect of Order 7, Rule 7 G.P.C. on behalf of the appellants.

So far as question2 is concerned that the findings recorded by both the Courts below are based on proper and correct appreciation of

evidence as well as law applicable to it, therefore, it is held that a NonState Subject cannot hold immovable property in proprietary rights. Since it

has been held that the defendant was a trespasser over the land in question, as such, later part of question2 stands answered.

So far as question3 is concerned, a reference to written statement indicates that no foundation has been laid and secondly if at all it could be

urged, it was only by the real owner. Defendant has not claimed himself tobe having any title to any other portion of the land except 2 marlas that

too firstly by way of purchase and secondly on the basis of adverse possession. Therefore, this question does not call for any determination in the

present appeal.

By referring to the evidence on record, learned Senior Counsel urged that both the courts below have fallen into an error as the decree is

based on nonconsideration as well as misappreciation of evidence, both oral as well as documentary, therefore, this appeal deserves to be

allowed.

What is the scope of interference by court in exercise of powers under Section 100 C.P.C. has been attending attention of the Supreme Court

from time to time. In a recent decision given by the said Court reported in 1999 (2) Rent Control Reporter 714, Ishwar Dass Jain (Dead) through

LRsAppellant Versus Sohan Lal (Dead) through LRs.Respondent, it was held that there are two situations in which call for interference with

findings of fact is permissible.

First one is when material or relevant evidence is not considered which if considered would have led to an opposite conclusion.

Second situation is where a finding has been arrived at by the appellate court by placing reliance on admissible evidence which if it was omitted, an

opposite conclusion was possible.

As already discussed, none of these situations exist in the present case.

The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under Section 100 of

the Code of Civil Procedure The substantial question of law has to bf; clearly distinguished from a substantial question of fact. See 1999 A|R SCW

2240. Kondiba Dagadu Kadam, Appellant Vs. Savitribai Sopan Gujar and others, Respondents.

To be fair to the learned Senior Counsel, another contention urged at the time of hearing of this appeal also needs to be noticed. It was

forcefully urged by Mr. Kohli that let an independent Revenue Officer be appointed as Commissioner to demarcate the land and in case it is found

that his client has encroached upon either 2 marlas of land or any portion of the land purchased by the plaintiff vide EX.PA. The decree can be

upheld with the consent of the parties and if it is found that the plaintiff is in possession of the land, that was purchased by him, then a suit may be

dismissed. This plea has been raised simply to be rejected. An attempt was made during the course of the trial forgetting a local Commissioner

appointed, which was declined. Against that order of the trial court. Civil Revision No. 88/91 was filed, which was dismissed on 28.8.1991. In

addition to this, this prayer of the defendant has been seriously resisted on behalf of the plaintiff on the ground that no case is made out for such a

prayer and the defendant cannot be allowed to make such prayer every now and then as he is doing. Incidentally, it may be noted that identical

prayer was made before the first appellate court, which was also declined. Attention of this court was drawn to hear and decide this Second

Appeal on the basis of the substantial questions of law duly framed. Admittedly, there is none regarding demarcation part Last but not the least, it

was for the defendant to have got the demarcation carried out and this aspect by leading evidence before the trial court that he is not in possession

of any portion of land that was purchased by the plaintiff from PWVaishno Charan Singh.

No other point is urged.

In view of the aforesaid discussion, there is no merit in this appeal, which is accordingly dismissed, with no order as to costs.