w w w . L a w y e r S e r v i c e s . i n

Smt. Raj Dulari v/s Ram Niwas Son of Shri Hari Narain & Another

Company & Directors' Information:- P S NIWAS PRIVATE LIMITED [Active] CIN = U45200WB2007PTC113370

Company & Directors' Information:- SHRI NIWAS COMPANY PRIVATE LIMITED [Active] CIN = U51900MH1953PTC020284

Company & Directors' Information:- D K NIWAS PRIVATE LIMITED [Active] CIN = U70101WB2007PTC118159

Company & Directors' Information:- SHRI HARI CORPORATION LIMITED [Strike Off] CIN = U15422PN2012PLC142075

Company & Directors' Information:- S S NIWAS PRIVATE LIMITED [Strike Off] CIN = U74999WB2011PTC168780

Company & Directors' Information:- SHRI RAM LIMITED [Dissolved] CIN = U99999MH1941PTC003332

Company & Directors' Information:- HARI RAJ LIMITED [Dissolved] CIN = U99999MH1956PLC009718

    S.B. Civil Second Appeal No. 15 of 1984

    Decided On, 21 July 2011

    At, High Court of Rajasthan


    For the Appellant: A.K. Sharma, Senior Advocate, with Rachit Sharma, Advocate. For the Respondents: R1, A.K. Pareek, R3, Manoj Sharma, Advocates.

Judgment Text

This civil second appeal has been filed by defendant-appellant against judgment and decree dated 19.10.1983 passed by Additional District & Session Judge no.3, Jaipur City, Jaipur, in Regular Appeal No.144/1983, whereby judgment and decree dated 10.08.1983 passed by Munsiff & Judicial Magistrate, Jaipur City (West), Jaipur, dismissing the suit of the plaintiff for permanent injunction, has been set aside. The appeal was admitted by order of this court dated 14.03.1985 and as many as nine substantial questions of law were framed. This court by judgment dated 09.11.2005 allowed the appeal and while setting aside the judgment of learned Additional District Judge, restored that of the Munsiff. Feeling aggrieved thereby, plaintiff filed leave to appeal before the Supreme Court, which was granted. The Supreme Court allowed the appeal holding that the jurisdiction of the High Court under Section 100 of the CPC is limited, and that the High Court, in terms of sub-sections (3) and (4) of Section 100 of the CPC, must formulate substantial question of law arising in the matter and then proceed to determine the same. Since in the judgment that was earlier passed, this requirement, according to Supreme Court, was not satisfied, therefore, it was set aside and the matter was remanded to this court with the observation that it would be open to this court to formulate any other substantial question of law.

I have heard Shri A.K. Sharma, learned Senior Advocate, for petitioner-appellant, Shri A.K. Pareek, learned counsel for plaintiff-respondent and Shri Manoj Sharma, learned counsel for defendant-respondent JDA.

Although at the time when the appeal was originally admitted as many as nine questions were formulated but, in my considered view, only substantial question of law that arises for consideration in this case is as follows:-

'Whether the plaintiff-respondent could claim relief of injunction in absence of possession particularly when he did not pray for recovery of possession?'

What was pleaded by plaintiff-respondent in the plaint was that a plot No.A-102 was allotted to him by the Urban Improvement Trust, Jaipur in Bassi Sitarampura Scheme vide order dated 17.11.1961 at the rate of Rs.3/- per square yard. Area of the said plot was 388.8 square yards (50'x70') and accordingly he deposited a sum of Rs.1166.40p. with the UIT on 17.11.1961 and he was put in possession. The UIT, vide letter dated 25.05.1964, required the plaintiff to further deposit outstanding amount of consideration in the sum of Rs.5.36p., which he deposited on 05.11.1964. The defendant-appellant, in collusion with the UIT, wanted to encroach upon a part of land of his plot. With that intention, he taking advantage of fact that 21.10.1973 was Sunday, with the help of masons and labours started digging foundation in his plot for raising boundary wall. When the plaintiff forbade him, he became infuriated and started fighting with him. A prayer was therefore made that an injunction be issued restraining the defendant from encroaching upon that part of land of plot No.A-102, which was indicated in yellow colour in the map annexed with the plaint.

The defendant-appellant, in his written statement, denied the averments of the plaint and asserted that plaintiff was never put in possession of plot No.A-102 by the UIT. He directly occupied the said plot and also wanted to encroach upon the land of defendant in adjoining plot No.A-57. Neither any site plan has been issued to plaintiff nor land of plot No.A-102 was ever demarcated nor the plaintiff was ever put in possession on that land by UIT. Defendant was allotted plot No.A-57 by the UIT by order dated 15.10.1965 and deposited the premium. Possession letter was issued on 28.04.1966. He was also granted site plant and was put in possession of the plot by the Overseer of the UIT on 22.08.1967. Boundaries of plot No.A-102 have wrongly been described and indicated by plaintiff in the map annexed with plaint. Construction of boundary, of which dispute was raised by plaintiff, was already complete on 18.10.1973. The suit be therefore dismissed.

The UIT in its written statement although admitted having issued allotment letter and deposit of premium amount. It, however, denied that any site plan was issued to plaintiff and asserted that neither any site plan was issued to plaintiff nor was he put in possession of the plot by UIT. Incorrect facts have been pleaded by plaintiff in the plaint. Land of plot No.A-57 was already alloted to defendant and a site plan was also issued and possession was also handed over. Plaintiff could not object to construction of boundary wall by defendant no.1. In additional pleas, it was pleaded by UIT that on complaints of illegal allotment of plots in Bassi Sitarampura Scheme, the government appointed one man commission of enquiry headed by Shri B.P. Sood, Member of the Board of Revenue, Rajasthan, Ajmer. The Commissioner recommended cancellation of such illegal allotments including that of plaintiff and the government accordingly by order dated 07.06.1972 directed cancellation of the allotment. The suit is therefore liable to be dismissed.

Shri A.K. Sharma, learned Senior Advocate, appearing on behalf of petitioner-appellant, has argued that first appellate court has committed gross illegality in interfering with judgment of learned trial court, which was well reasoned and considered. Trial court rightly observed that when possession of defendant over disputed land was proved before the date of filing of suit, plaintiff ought to have filed a suit for declaration rather than merely praying for an injunction. Trial court further observed that not only from pleadings in plaint but also now in the statements in the court this fact was proved and therefore in absence of possession of plaintiff, no decree of injunction could be issued. Shri A.K. Sharma, learned Senior Advocate, argued that mere issuance of allotment letter by the UIT in favour of plaintiff did not prove that he was put in possession of the plot measuring 388.8 square yard. Letter of allotment dated 17.11.1961 issued by the UIT merely states that 'it is proposed to allot Plot No.A-102' on fulfillment of the conditions of allotment stated therein. Learned counsel also referred to subsequent part of this letter stating 'before the allotment is finalized he is required to give an affidavit in the enclosed form, duly attested by the competent authority.' This clearly shows that allotment was yet not made, and it was proposed to be made. Reference is made to letter written by plaintiff to President, UIT, Jaipur, dated 05.11.1964 requesting for issuance of possession letter. It is argued that no possession letter was ever issued to plaintiff and he, on his own, encroached upon the land in dispute and started raising construction, which is why number of notices under Sections 90 and 91 of the UIT Act, 1959 were issued to him viz. dated 16.10.1973 and 20.07.1974, which are on record produced in evidence as Exhibit 5 and 6.

Shri A.K. Sharma, learned Senior Advocate, argued that as against this, appellant was allotted Plot No.A-57 vide order dated 22.08.1967 (Exhibit D-1) which states that the plot has been demarcated at the site and he was required to take possession of the same within fortnight of the order. A site plan of the plot is also marked as Exhibit D-2. He has referred to letter of Government dated 07.06.1972 (Exhibit A-1) addressed to Additional Secretary, UIT, directing for cancellation of allotment of various plots including that of plaintiff, and also referred to the site plan of Plot No.A-102 (Exhibit A-2) indicating the size of the plot to be 26'x70' rather than 50'x70' as claimed by plaintiff. Shri Sharma also referred to report submitted by one man commission recommending cancellation of plot in question. Shri Sharma also referred to statements of plaintiff recorded in the court where he admitted that defendant had taken possession of disputed land in the year 1963.

In support of his arguments, Shri Sharma, learned counsel for appellant, relied on judgments of the Supreme Court in Thimmaiah Vs. Shabira and Others – (2008) 4 SCC 182 and Ramji Rai and Another Vs. Jagdish Mallah – (2007) 14 SCC 200, on the proposition of law that if plaintiff is not in possession, he is not entitled to relief of permanent injunction without claiming recovery of possession.

Per contra, Shri A.K. Pareek, learned counsel for plaintiff-respondent, argued that plaintiff was very much allotted plot in size of 50'x70' measuring 388.8 square yard and thereafter allotment letter (Exhibit-1) dated 17.11.1961 was issued. Plaintiff deposited the premium amount vide receipt dated 17.11.1961 and differential amount of Rs.5.36 was also deposited on 05.11.1964 pursuant to communication of the UIT dated 19.05.1964. Regarding notices issued to plaintiff by Exhibits 5 and 6 dated 16.10.1973 and 20.07.1974, respectively, he argued that those notices clearly prove possession of plaintiff and secondly notices were issued regarding construction made in the set back area to which plaintiff submitted a reply dated 19.10.1973 (Exhibit-7). It was argued that defendant was in fact allotted another plot No.A-142 and it was in lieu thereof that he was allotted plot No.A-57. Plaintiff had occupied his plot No.A-102 before defendant took possession of Plot No.A-57. Regarding report of Commissioner and Government order dated 07.06.1972 it was argued that none of the allotments were cancelled by the UIT and that letter dated 07.06.1972 was never acted upon. Not only plaintiff but others also continued to remain in possession. There was no illegality in the allotment and that Commissioner did not provide any hearing to plaintiff and therefore report of Commissioner is not binding upon him. Learned counsel submitted that injunction suit by itself could be entertained even if prayer is not made for recovery of possession because plaintiff had immediately filed the suit. In appeal against temporary injunction order filed in this court, it was directed by this court that possession of petitioner-appellant shall be abide by final decision of this court. It was argued that during pendency of the appeal, the plaintiff-respondent also filed an application under order 41 Rule 27 of the CPC with which it has sought to place on record various subsequent documents such as the opinion of Advocate of the JDA, which has substituted the UIT after establishment of JDA, recommending allotment of 190 square yard of land to plaintiff, the letters sent by Senior Town Planner, Jaipur Municipal Corporation to Chief Town Planner and the application in this respect submitted by plaintiff and letter of Secretary, JDA, to Administrator of Jaipur Municipal Corporation. Relying on all these documents, Shri Pareek, learned counsel for plaintiff-respondent, argued that JDA and the Municipal Corporation at one stage decided to allot alternative plot to plaintiff-respondent and therefore this court even in the scope of second appeal could mould the relief by directing Jaipur Municipal Corporation and/or Jaipur Development Authority to make such allotment.

I have given my anxious consideration to the rival submissions and perused the material on record.

As far as question of possession is concerned, it is more than evident from record especially from pleadings in plaint and also from statement of plaintiff that sizable part of plot No.A-102 allotted to plaintiff was though adjacent to plot No.A-57, size of which was 50'x70', was not in his possession. While defendant Raghuveer Chaturvedi was put in possession of allotted plot by the UIT on 22.08.1967 and site plan of the plot was also issued in his favour indicating dimension of the plot to be 50'x70' but there is no proof of fact on record that plaintiff Ramniwas was ever put in possession of plot by the UIT or any site plan was ever issued in his favour. Subsequently prepared site plan was placed on record as Exhibit A-3, which has been signed by the Overseers, Assistant Engineer and Secretary of the Urban Improvement Trust. In this site plan, the plot No.A-102 has been indicated between existing Plot No.A-57 and A-103 and dimension of the plot has been shown to be 26'x70'. When on ground the land that was available was only 26'x70', how possibly could plaintiff-respondent claim to occupy a larger size of plot than was available. It has not been proved by any of the parties that total land size of two plots, namely, A-103 and A-57 is such which can accommodate the plot allotted to the defendant in the size of 373 square yards as also the plot allotted to the plaintiff in the size of 388.8 square yards. It is precisely for this reason that plaintiff wanted to occupy the land of plot No.A-57 of defendant, possession of which was received by him. Obvious conclusion is that possession of disputed land was with defendant even before filing of the suit and it was only when plaintiff wanted to encroach upon his land, the defendant constructed boundary wall, which the plaintiff unsuccessfully resisted.

The Supreme Court in Thimmaiah Vs. Shabira (supra) held that in a suit for permanent injunction to restrain defendants from interfering with the peaceful possession and enjoyment of the property, 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 present case although the relief of injunction was sought but there was no prayer for recovery of possession.

To the same effect is the judgment of the Supreme Court in Ramji Rai and Another Vs. Jagdish Mallah (supra) in which also the plaintiff failed to prove that they were in posse

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ssion of the disputed land. It was held that under Section 38 of the Specific Relief Act, 1963, an injunction restraining disturbance of possession will not be granted in favour of plaintiff, who are not found to be in possession. In view of such settled proposition of law, learned first appellate court was wholly unjustified in reversing the judgment of the trial court on the basis of mere inference of possession of the plaintiff on misconstruction of letter of allotment. Findings recorded by the first appellate court is wholly perverse and erroneous. Coming lastly now to the alternative submission of the counsel for the plaintiff-respondent for moulding the relief and directing JDA/JMC to allot alternative land, I find the prayer to be wholly unacceptable, given the fact that this is a second appeal by the petitioner in which no such case can be allowed to be built up on the strength of such a correspondence which took place inter-see between the Jaipur Development Authority and Jaipur Municipal Corporation on the basis of representation of plaintiff, which is nothing but an effort on his part to regain the lost ground. In the result, the appeal is allowed. The judgment and decree dated 19.10.1983 of Additional District & Sessions Judge No.3, Jaipur City, Jaipur in Regular Appeal No.144/1983 is set aside and judgment and decree dated 10.08.1983 of learned Munsiff & Judicial Magistrate, Jaipur City (West), Jaipur, in Civil Suit No.874/1973, is restored and consequently the suit filed by the plaintiff stands dismissed.