1.00. Present Second Appeal under section 100 of the Code of Civil Procedure has been preferred by the appellants - original defendants to quash and set aside the judgement and decree passed by the learned Civil Judge (J.D.), Upleta in Regular Civil Suit No. 118 of 1998 dtd.19/12/2003 by which the learned trial court has decreed the said suit instituted by the respondents herein - heirs of the original plaintiff as well as the Judgement and Order / decree passed by the learned appellate court - learned Additional District Judge, Gondal camp at Dhoraji in Regular Civil Appeal No. 1 of 2004 dtd.20/12/2011 by which the learned appellate court has dismissed the appeal preferred by the appellants herein - original defendants and has confirmed the judgement and decree passed by the learned trial court.
2.00. That the respondents herein - original plaintiff named Hasmukh alias Babulal Gokalbhai instituted Regular Civil Suit No.118 of 1998 against the appellants - original defendants in the court of learned Civil Judge (J.D.) Upleta for declaration and permanent injunction and to declare that the defendants have no right, title or interest in the suit land in question and have no right to put up any construction on the suit land in question. It was the case on behalf of the plaintiff that the plaintiff was the owner of the disputed plot in question which he has purchased from one Ahir Nathubhai Kacharabhai Bhimbha and even the said plot was transferred in his name in Shree Kalyan Cooperative Housing Society, Upleta ("hereinafter shall be referred to as "the society" for short), pursuant to the Resolution passed by the society dtd.21/9/1997. It was the case on behalf of the plaintiff that despite the above, the defendants illegally entered into the said plot and started putting up construction and therefore, the plaintiff instituted the aforesaid suit for the aforesaid relief. It appears that in the said suit the plaintiff submitted application Ex.5 for interim injunction and the learned trial court directed the parties to maintain status-quo, against which Appeal From Order was preferred before the learned trial court and the petitioners herein - original defendants submitted Undertaking at Ex.52 that if the petitioners - original defendants lose in the Appeal From Order, and/or the plaintiff succeeds in the suit, the defendants shall remove the construction at their-own cost and consequently the petitioners put up the construction subject to ultimate outcome of the suit and the aforesaid undertaking. It appears that thereafter plaintiff preferred Civil Revision Application No. 18 of 1999 before this Court and this Court directed the learned trial court to finally decide and dispose of the suit at the earliest. Therefore, the undertaking filed by the petitioners - original defendants continues and the appellants - original defendants put up the construction subject to the aforesaid undertaking.
2.01. That the suit was resisted by the defendants by filing Written Statement at Ex.13. It was contended on behalf of the defendants that transfer of the plot in question in favour of the plaintiff was without consideration and the name of the plaintiff was mutated in the record of the society illegally. It was also contended on behalf of the defendants that defendant No.1 is in possession of the plot in question as power of attorney holder of Vijyalaxmiben Chunilal and the possession of the defendant No.2 is under the Agreement-to-sell dtd.17/12/1997. It was also contended on behalf of the defendants that they started putting up the construction after obtaining permission from the Nagar Palika.
2.02. That the learned trial court framed Issues at Ex.58 and the issues were recast by the learned trial court at Ex.61. Both the parties led evidence, oral as well as documentary and on appreciation of evidence, the learned trial court specifically held that the plaintiff is the owner of the suit plot in question and defendants have no right, title or interest in the land in question and have no right to put up any construction on the plot in question which is belonging to the plaintiff and consequently decreed the suit and granted declaration and permanent injunction, as prayed for and considering the undertaking given by the defendants also directed the defendants to remove the construction which is made on the plot in question and further directed the defendants to remove from the plot in question after restoring the possession which was prior to putting up the construction.
2.03. Being aggrieved by and dissatisfied with the judgement and decree dtd.19/12/2003 passed by the learned Civil Judge (J.D.), Upleta in Regular Civil Suit No.118 of 1998, appellants herein - original defendants preferred Regular Civil Appeal No. 1 of 2004. That during the pendency of the said appeal, the original plaintiff died and therefore, his heirs came to be joined in the appeal. That learned appellate court by the impugned judgement and decree dtd.20/12/2011 has dismissed the said appeal confirming the judgement and decree passed by the learned trial court.
2.04. Being aggrieved by and dissatisfied with the judgement and decree / orders passed by both the courts below, appellants herein - original defendants have preferred the present Second Appeal under section 100 of the Code of Civil Procedure.
3.00. Mr.Suresh M. Shah, learned advocate appearing on behalf of the appellants has vehemently submitted that the learned trial court has materially erred in granting a decree for permanent injunction without a prayer for decree for possession of the suit plot. It is further submitted by Mr.Shah, learned advocate appearing on behalf of the appellants that as such the learned trial court has materially erred in directing the defendants to remove from the suit plot and to handover the possession to the plaintiff though such a prayer has not been prayed in the suit. It is further submitted that both the courts below have materially erred in holding that the defendants have no right, title or interest in the disputed land in question.
3.01. Mr.Suresh M. Shah, learned advocate appearing on behalf of the appellants - original defendants has vehemently submitted that the lower appellate court has erred in deciding the appeal without raising the points for determination as required under Order 41 Rule 31 of the Code of Civil Procedure.
3.02. Mr.Suresh M. Shah, learned advocate appearing on behalf of the appellants has relied upon the decision of the Hon'ble Supreme Court in the case of Ramji Rai Versus Jagdish Mallah (Dead) Through L.Rs., reported in AIR 2007 S.C. 900 in support of his submission that suit for permanent injunction without a prayer for decree for possession of the suit plot was not competent.
3.03. Mr.Suresh M. Shah, learned advocate appearing on behalf of the appellants has further submitted that the learned trial court has materially erred in directing the appellants - original defendants to remove the construction, solely relying upon the understanding given by the defendants. It is submitted that the said understanding given by the appellants - original defendants was subject to challenging the judgement and decree passed by the learned trial court and therefore, the impugned judgement and decree passed by the learned trial court decreeing the suit and directing the appellants to remove the construction made by the appellant also deserves to be quashed and set aside.
By making above submissions and relying upon above decision, it is requested to allow the present Second Appeal.
4.00. Present Second Appeal is opposed by Mr.Kinariwala, learned advocate appearing on behalf of the respondents - heirs and legal representatives of the original plaintiff. It is submitted that so far as declaration and permanent injunction granted by the learned trial court confirmed by the learned appellate court is concerned, there are concurrent finding of facts recorded by both the courts below holding that the defendants have no right, title or interest in the disputed land in question and they have no right to put up the construction and the said findings are on appreciation of evidence.
4.01. Now, so far as the contention on behalf of the appellants that in absence of any prayer and/or decree sought for possession, the learned trial court could not have directed the defendants to remove from the disputed land in question and consequently to handover the possession of the disputed suit land to the plaintiff, is concerned, Mr.Kinariwala, learned advocate appearing on behalf of the respondents - original plaintiffs has heavily relied upon the decision of the learned Single Judge in the case of Navalram Laxmidas Devmurari Versus Vijayben Jayvantbhai Chavda, reported in 1997 (2) GLR 1755.
4.02. Mr.Kinariwala, learned advocate appearing on behalf of the original plaintiff has further submitted that in a suit for declaration of title, even in a case where the plaintiff had not sought further relief, other than declaration whether the plaintiff is able to seek further relief, and the relief for possession of the portion of the land over which the illegal construction was made, not claimed, the suit is not barred under section 34 and under section 41(h) of the Specific Relief Act for not claiming relief of possession. Therefore, it is submitted that the learned trial court has rightly passed the judgement and decree directing the defendants to remove from the land in question after specifically holding that the defendants have no right, title or interest in the disputed land in question and they have no right to put up the construction in the suit land in question.
4.03. Mr.Kinariwala, learned advocate appearing on behalf of the original plaintiff has further submitted that having lost in the suit, the learned trial court has rightly passed the judgement and decree directing the appellants - original defendants to remove the illegal construction which the defendants have agreed to remove at their own cost as per the undertaking given before the learned trial court pursuant to the order passed by the learned appellate court in an appeal against the order passed below Ex.5. It is submitted that once the appellants- original defendants have given undertaking to remove the construction, in case, the plaintiff succeeds in the suit, and when the plaintiff has succeeded in the suit, the appellants - original defendants are bound to remove the construction as per the undertaking given by them. In support of his above submission he has relied upon the recent decision of the Hon'ble Supreme Court in the case of Kanwar Singh Saini Versus High Court of Delhi, reported in (2012) 4 SCC 307.
By making above submissions and relying upon above decision, it is requested to dismiss the present Second Appeal.
5.00. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned judgement and decree / orders passed by both the courts below in detail as well as considered the documentary evidence on record from the record and proceedings which is called for from the courts below.
6.00. At the outset, it is required to be noted that as such there are concurrent findings of facts recorded by both the courts below that the defendants have no right, title or interest in the disputed land in question and consequently they have no right to put up the construction in the land in question. That the said findings of fact given by both the courts below are on appreciation of evidence and therefore, the same are not required to be re-appreciated and/or interfered with by this Court in exercise of powers under section 100 of the Code of Civil Procedure. On appreciation of evidence, the learned trial court has specifically found that the original plaintiff is the owner of the disputed land in question which has been purchased by him by way of registered sale deed and plot in question is in the name of the plaintiff. Under the circumstances, the learned trial court has rightly granted declaration and permanent injunction restraining the defendants from putting up any construction on the disputed suit land in question.
6.01. It is required to be noted that the appellants - original defendants have given undertaking before the learned trial court specifically giving undertaking that in case the plaintiff succeeds in the suit, they will remove the construction made in the suit plot at their own cost. Under the circumstances, when the original plaintiff has succeeded in the suit and the defendants have lost, the defendants are bound to remove the construction made by them on the disputed suit land at their own costs as per undertaking given by them and therefore, now it is not open for them to back out from their undertaking and contend that the construction put up by them is not required to be removed by them and/or the learned trial court could not have directed the appellants to remove the construction. Under the circumstances, no illegality has been committed by the learned trial court in directing the appellants - original defendants to remove the construction which has been made by them on the disputed land in question.
6.02. Now, so far as the contention on behalf of the appellants relying upon the decision of the Hon'ble Supreme Court in the case of Ramji Rai (supra) that the suit for permanent injunction without a prayer for decree for possession of the suit plot was not competent, is concerned, the same has no substance. It is required to be noted that the permanent injunction which was sought by the original plaintiff was for restraining the defendants from putting up any construction on the suit land in question couple with declaration that the defendants have no right, title or authority to put up the construction on the suit land in question, as the original plaintiff is the owner of the suit plot. Under the circumstances, even if there was no prayer for decree for possession of the suit land, the suit for the aforesaid permanent injunction was legally competent.
6.03. Now, so far as the reliance placed upon the decision of the the Hon'ble Supreme Court in the case of Ramji Rai (supra) is concerned, on facts the said decision would not be of any assistance to the plaintiffs and/or the same would not be applicable to the facts of the present case. In the case before the Hon'ble Supreme Court, the plaintiffs were seeking permanent injunction restraining the defendants from interfering with the possession of the suit land in dispute and the plaintiffs/appellants therein failed to prove that they were in possession and to that the Hon'ble Supreme Court held that the plaintiffs have failed to prove that they are in possession, and the said ground is sufficient for dismissal of the suit for permanent injunction. Under the circumstances, the aforesaid decision would not be applicable to the facts of the present case.
6.04. Now, so far as the contention on behalf of the appellants - original defendants that in absence of any prayer and/or relief sought to direct the defendants to remove from the suit land and/or handover the possession to the respondents - original plaintiff and therefore, the learned trial court could not have granted such a relief directing the defendants to remove from the suit plot and consequently to handover the possession of the suit plot to the original plaintiff is concerned, the same deserves consideration. It appears that in the plaint, the original plaintiff has not prayed any relief with respect to obtaining possession and/or directing the defendants to remove from the suit plot and the original plaintiff has sought only declaration and permanent injunction without claiming any decree for possession. Even no issue has been framed by the learned trial court. Under the circumstances, the learned trial court has materially erred in granting such a relief of possession which was not claimed in the suit.
6.05. Now, so far as the reliance placed upon the decision of the learned Single Judge in the case of Navalram Laxmidas Devmurari (supra) relied upon by the learned advocate appearing on behalf of the original plaintiff is concerned, on considering the same, it appears that the said decision would not be applicable to the facts of the present case and/or the same would not be of any assistance to the respondents - original plaintiff. In the case before the learned Single Judge, in fact, the plaintiff therein was found to be in possession of the suit premises and on appreciation of evidence it was found that the defendants therein failed to prove that they were in exclusive possession of the suit property and that the plaintiff was dispossessed and therefore, the learned Single Judge held that when the plaintiff was found to be in possession of the suit land therein and the suit was only for permanent injunction and declaration and therefore, the same is maintainable. Under the circumstances, the aforesaid decision would not be applicable to the facts of the present case. As stated above, there was no prayer / relief sought in the suit for possession and/or to remove the defendants from the suit land / plot and to handover the possession to the original plaintiff and therefore, the learned trial court could not have granted such a relief which was not even prayed in the suit. It will always be open for the respondents - heirs of the original plaintiff to pray for the possession by initiating appropriate proceedings relying upon the declaration and permanent injunction granted by the learned trial court which is being confirmed by this Court.
7.00. In view of the above and for the reasons stated above, present Second Appeal succeeds in part. The impugned judgement and decree passed by the learned trial court confirmed by the learned appellate court granting permanent injunction in favour of the original plaintiff - respondents herein, is hereby confirmed. However, operative of the judgement and decree passed by the learned trial court directing the defendants to remove from the suit plot in question and consequently to handover the possession is concerned, the same is hereby quashed and set aside and to that extent only the present Second Appeal is allowed and the rest of the judgement and decree passed by the learned trial court confirmed by the learned appellate court is hereby confirmed. Present Second Appeal is allowed to the aforesaid extent only in so far as directing the defendants to remove from the suit plot and the judgement and decree passed by the learned trial court granting permanent injunction and directing the defendants to remove the construction made on the suit plot in question is hereby confirmed. In the facts and circumstances of the case, there shall be no order as to costs.
[M.R.
SHAH, J.] rafik Top