Plaintiffs in a suit for injunction, who were non suited by the trial court which was confirmed in appeal are the appellants.
2. The suit was one for injunction simpliciter. The plaint contains two items of properties consisting of plaint A schedule and B schedule properties of which A schedule was shown to have an extent of 32 cents and B schedule was was shown to have an extent of 8 cents. However, the derivation of right over the property, as far as item No.1 is concerned, was confined to Exts. A1, A2, A5 which are the delivery proceeding papers by which the plaintiff obtained item No.1. As far as item No.2 is concerned, that stands in the name of the second plaintiff. She had obtained it under Ext. A3 document dated 26.10.2002.
3. The property in the suit is the subject matter of an exchange agreement dated 16.07.1997 by which a suit was compromised and defendant in the said suit agreed to pay a compensation of ₹ 1,88,000/- with 12% interest. In pursuance to the execution of the said compromise decree, property was obtained by the first plaintiff. Complaining that the defendant is trying to trespass into the suit property, the suit was laid.
4. Even though the defendant resisted the suit on many grounds, in Paragraph 12 of the written statement, it is specifically stated that he had no intention to interfere with the possession of the plaintiff with respect to the property shown in the plaint schedule. The allegation that he is trying to trespass into the suit property is without basis.
5. On the above pleadings, issues were raised and the parties went to trial. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A5.
The defendant had DW1 examined. Ext. C1, C1(a) is the Commissioners report and plan. Exts. X1 to X7 are the third party exhibits.
6. Both the courts below have found that the claim of plaintiff with respect to 52 cents scheduled as item No. 1 is baseless and going by the documents on which he placed reliance, extent of properties obtained by him could be only 30 cents and the courts below formed of the opinion that fraud has been played in order to grab the property. Holding that the plaintiff is not entitled to 52 cents as claimed by him, the suit was dismissed which was confirmed in appeal.
7. The following substantial questions of law were formulated in this second appeal:
“(i) Whether a Court can enter a finding regarding the title of a party in a suit for injunction, without framing of an issue to that effect.
(ii) Whether a suit/appeal can be dismissed on account of non-impleadment of parties especially in the absence of framing an issue regarding non-impleadment.
(iii) Whether a court can validate/approve a registered assignment deed in favour of a party without framing an issue to that effect and that too in the absence of such person in the party array.
(iv) Whether a court can approve the sale of a property took place during the pendency of the case regarding the same property.
(v) Whether Ext.XI sale deed is hit by the principles of lispendens made mention under Section 52 of the Transfer of Property Act.
(vi) Whether a suit for injunction can be decreed against the defendant who does not claim ownership or possession over the property in question.
(vii) Whether a court can grant a lesser relief on the basis of available evidence, against the larger relief was sought for.
(viii) Whether a court can reject the sale certificate and delivery receipt issued long back in a suit, while deciding the issue of injunction in a later Suit.
(ix) Whether a party, who had already participated in the execution petition and issue of sale certificate and delivery certificate, can challenge the said certificates in a later suit between the same parties.”
8. The learned counsel appearing for the appellant pointed out that the schedule shown to Item No. 1 to the plaint is exactly the same as in the sale certificate and the delivery certificate issued to the plaintiff. It is true that a mistake has been committed by the plaintiff in including 52 cents in schedule whereas he was entitled to only 30 cents of property out of 52 cents covered by the delivery certificate. However, according to the learned counsel, the act of court going into the title was without any justification and the finding that the suit is bad for non-joinder of necessary parties cannot be sustained in law. According to the learned counsel, if there was any confusion or ambiguity regarding the identity of the property, it would have been only proper for the courts below to give an opportunity to the plaintiff to have the property properly identified. Anyhow, in the light of the specific stand taken by the defendant, dismissal of the suit cannot be sustained.
9. The learned counsel appearing for the respondent drew attention of this Court that being a suit for injunction, the entire burden was on the plaintiff to show that he was in exclusive possession of the suit property. Having obtained only 30 cents, it was imprudent on his part to have claimed 52 cents of the property. It is also pointed out by the learned counsel that both the courts below have come to the conclusion that property has not been properly identified and if that be so, the plaintiff has to necessarily loose. It is accordingly contended that no grounds are made out to interfere with the findings of the courts below.
10. After having heard the learned counsel for the appellants and the learned counsel for the respondent, there may be some substance in the grievance voiced by the appellants. It is true that the appellant had claimed 52 cents as the extent of property as item No. 1 in the plaint schedule property. Even going by the claim made by the plaintiff, item No.1 was obtained by him as per Exts. A1, A2 and A5.
In all these documents, it is clearly mentioned that the property that is the subject matter of these documents is 30 cents out of 52 cents of property, even though boundary shown is to the entire 52 cents. Probably, it was this aspect that the boundaries shown were of the entire 52 cents which might have prompted the plaintiff to claim the plaint item No.1 having an extent of 52 cents.
11. It is now conceded by the learned counsel for the appellant that he can lay claim legitimately only to 30 cents and he confines his relief to the said extent of the property.
12. As regards item No. 2, there is no serious dispute at all.
13. In the light of the fact that the plaintiff now claims 30 cents out of 52 cents, it has necessary to identity the property. In fact, the courts below should have made an attempt to identity the property as found in the documents relied on by the plaintiffs and if it was found that he is not entitled to the larger extent of property should have granted a decree to the extent to which he is entitled to . Since the property has not been identified, it is only appropriate for this Court to remand the matter to the trial court to identify the property in the light of the fact stated above, i.e. the plaintiff limits his claim to 30 cents in item No. 1 of plaint schedule property.
For the above reason, this appeal is allowed. The impugned judgments and decrees of the courts below are set aside. The matter is remanded to the trial court for fresh disposal in accordance with law and in the light of what has been stated above. The parties shall appear before the trial court on 11.07.2014. Both parties will be at liberty to adduce further evidence if they so choose. The trial court may make every endeavour to dispose of the appeal as expeditiously as possible at any rate within a period of five months from the date of appearance.
The possession of the plaintiffs shall not be disturbed until the suit is disposed of.
ds //True Copy// P.A. To Judge Sd/-
P.BHAVADASAN JUDGE