Sarna vs Parshotam Dass

R.S. Pathak, C.J.—This is a defendant''s second appeal arising out of a suit for possession.

The plaintiff filed a representative suit on behalf of the residents of village Tika Gorur, Tappa Kohla, Tehsil Hamirpur, alleging that the residents of the village were entitled to Bartandaran rights over the land measuring ten kanals in Khasra No. 35 in the village, that the rights consisted of a right of passage, the right of grazing cattle and the right to excavate earth and stones. It was asserted that the residents of Tika Gorur had exercised the rights for many years, that in 1897 the Financial Commissioner of'' Punjab recognised that while the right of ownership in the land belonged to the Raja of Nadaun the exercise of the said right of ownership was subject to the Bartandaran rights, which had been mentioned in the Wajub-ul-arz It was alleged that after the defendant Sarna purchased the land from the Raja of Nadaun he attempted to enter into possession thereof in the year 1955-56 to the exclusion of the Bartandaran rights of the village residents in consequence of which, it was said, the Assistant Collector had intervened and terminated the defendant''s possession. It was said that towards the beginning of 1963 the defendant had again started cultivating part of the land and from September, 1965 had taken exclusive possession. It was pointed out that the Bartandaran rights had been recognised earlier by the court in Civil Suit No. 312 of 1955, which was decided on August 27, 1956.

The suit was resisted on the grounds, inter alia, that the plaintiff was not entitled to sue lor possession and that the suit was barred by limitation.

The trial court decreed the suit for possession, repelling the objection on the point of limitation and holding that the ownership rights of the defendant in the land were subject to the rights of the Bartandars in the same.

In appeal before the learned District Judge the defendant did not dispute the existence of the Bartandaran rights in the terms set out in the judgment in Civil Suit No. 312 of 1955 but urged that the trial court could not, while recognising those rights, grant a decree for possesson. It was also contended that the trial court had erred in holding that the suit was within limitation. The learned District Judge found the Bartandaran rights fully established from the Wajub-ul- arz and the entries contained in the Jamabandis for 1951-52, 1955-56 and 1962-63. But he held that the trial court had erred in decreeing the suit for possession, and the plaintiff was merely entitled to a declaration of his Bartandaran rights and to a permanent injunction restraining the defendant from interfering with the exercise of those rights in the land. He also held that the suit was not barred by limitation. Accordingly, he granted a declaration and permanent injunction in favour of the plaintiff.

In this second appeal by the defendant, the findings of the learned District Judge, so far as they go against the defendant, have been assailed before me. It is also pointed out that the learned District Judge has erred in observing that the Bartandaran rights claimed by the plaintiff are in the nature of easementary rights.

The first question is whether the learned District Judge was right in holding that the plaintiff was entitled to a decree for declaration and permanent injunction. The learned District Judge has observed that a decree for declaration and permanent injunction was a lesser relief than the decree for possession claimed initially in the suit, and therefore the plaintiff could be granted the lesser relief. Learned Counsel for the Appellant contends that in the granting of the relief of permanent injunction the Appellant was deprived of the opportunity of showing that such relief was not called for, and among the grounds which, it is said, could have been taken in defence were those contained in Clauses (f) and (i) of Section 41 of the Specific Relief Act. It is pointed out that if the grant of such relief had to be considered the Respondent should have been required to amend his plaint and pay a higher court fee than that affixed to the plaint. In my opinion, the learned District Judge cannot be faulted for what he has done. It is always open to a court to mould the relief and to grant such relief as the justice of the case calls for. Order 7 Rule 7 of the CPC confers ample power on the court in that regard. The test is whether the defendant will not be taken by surprise or be embarrassed by the relief which is granted. It was observed in Kaushal Singh and Others Vs. Ghanshiam Singh, that under our law of procedure a party is entitled to state facts and to ask for appropriate relief and it is always open to the court to grant the party any appropriate relief to which he may be entitled. The form of the suit is of no consequence unless it has the effect of prejudicing the opposite party in his defence. In Uddi Rqjamma v. Poornappagari Padmavatamma AIR 1951 Mad. 1047 a declaratory decree was granted in a suit for possession for property. Where, as in the present case, the court find that the facts pleaded in the plaint make out a case for injunction, then even though the plaintiff may have erroneously asked for possession the court acts within its power in granting an injunction. A relief which cannot properly be claimed in a suit having regard to the pleadings contained in the plaint is a relief which is mistakenly sought, and the court can always determine what should be the appropriate relief to be granted on the basis of the pleadings in the plaint. In the present case, plainly a declaration and injunction should have been prayed for by the plaintiff. As regards the question whether the Appellant has been prejudiced by the substitution of relief for declaration and injunction in place of the original relief for possession, I am unable to hold that there has been any such prejudice when the case set out by the pleadings in the plaint has remained unaltered. The Respondent claimed Bartandari rights, and these were subject to the ownership right vested in the Appellant. The only reliefs to which the Respondent could probably be held entitled are the reliefs which the learned District Judge granted him. Learned Counsel for the Appellant contends that if the relief for injunction had been claimed, the Appellant would have invoked Clauses (f) and (i) of Section 41 of the Specific Relief Act, but it has not been shown that any circumstances exist to justify the invoking of those provisions. An academic possibility will not suffice for the purpose of making out a case of prejudice.

It has also been urged on behalf of the Appellant that a higher court fee is payable on the relief for declaration and permanent injunction than on the relief for possession, In my opinion, that does not affect the jurisdiction of the court to deal with the case. If a case calls for the recovery of higher court fee, that is not a matter which abridges the jurisdiction of the court to grant appropriate relief. The deficiency, if any, in the court fee can be made good before the decree on this appeal is prepared.

It is urged by learned Counsel for the Appellant that the learned District Judge has erred in equating the Bartandaran rights claimed by the Respondent with easementary rights and therefore, it is said, the grant of relief by the learned District Judge is vitiated. Now it appears from a perusal of the judgment that when the learned District Judge expressed the view that the Bartandaran rights were in the nature of easementary rights, it was merely for the purpose of showing that the Respondent was not entitled to a decree for possession. He observed that the holder of a servant tenement cannot be dispossessed by a person entitled to a customary easement. There can be no doubt that a customary right cannot be identified with a customary easement, and authority for that proposition will be found in Ramchandra Singh v. Partap Singh AIR 1965 Raj. 217. But I do not see how that matter affects the decision of the present case, if regard be had to the correct position in law which emerges on the facts of this case. Even if the learned District Judge was influenced by the error mentioned above I am unable to hold that the ultimate result would be any different.

It may now be considered whether the leaned District Judge is right in holding that the suit is within time. The learned District Judge has proceeded on the footing that the case is one of a continuing wrong and Section 22 of the Limitation Act, 1963, applies. In my opinion he is right. It appears from the evidence on the record that the Appellant was in cultivatory possession. The exclusive possession claimed by the Appellant does not mean that the entire land comprising ten kanals had been brought under cultivation. A witness Milkhi Ram has stated that out of ten kanals as much as six kanals lay vacant and uncultivated. There is nothing to suggest that it was not possible for the Tikadars to exercise their Bartandaran rights. They are rights of passage, of pasturage and of excavating earth and stones. It is not a case where the land over which the Bartandaran rights are claimed had been so converted or altered as to exclude the exercise of those rights altogether. The restraint put by the Appellant on the exercise of the Bartandaran rights was a continuing wrong. What is a continuing wrong as distinguished from the continuing effect of a completed injury has been explained by the Supreme Court in Balkrishna Savalram Pujari and Others Vs. Shree Dnyaneshwar Maharaj Sansthan and Others, and by this Court in Shamsher Singh Kanwar v. The Union of India ILR 197S Him. 1016. Had the land been so altered in its nature that the exercise of the Bartandaran rights was rendered impossible, it would have been a case of a completed injury. I am not satisfied on the facts of the present case, that such a case can be said to have arisen. It is plainly a case where the Bartandaran rights could have been exercised by the Respondent over the land. The restraint imposed by the Appellant on the Respondents'' exercise of those rights is, to my mind, in the nature of a continuing wrong.

In the result, the appeal fails and is dismissed with costs.