Swatanter Kumar, J.@mdashThe respondents herein, plaintiffs in the suit, had instituted a suit praying for decree of permanent injunction restraining the defendants in the suit from interfering into their possession on a residential plot No. 62 measuring 36'' x 31'' plus Gosha Shumal Garbi 30'' x 10'' the particulars of which were given in paragraph 1 of the plaint. The plaintiffs had claimed that their father had purchased the land for sale consideration of Rs. 1500/- vide sale deed dated 4.7.1984, The suit was contested by the defendants. They stated that they were in possession of the plot in question and the possession had been surrendered in their favour by one Jagdish Chander. The defendant No.1 had constructed a kotha and they were in possession of the property. Suit was contested by defendants.
2. Based on these facts, the learned trial court after framing the following issues not only decreed the suit for permanent prohibitory but even directed by way of mandatory injunction that temporary structure will be removed through the process of court.
"i) Whether Shri Jai Chand husband of the plaintiff No.1 and father of plaintiff No.2 had purchased a plot No.62 detailed in para No.1 of the plaint. If so its effect? OPP.
ii) Whether the plaintiffs became owners in possession of the plot in suit as alleged in para 2 of the plaint. If so its effect ? OPP.
iii) Whether the suit for permanent injunction is not maintainable 7 OPD.
iv) Whether the sale deed date 4.7.1984 is illegal, void and not binding upon the defendants. If so its effect ? OPD
v) Whether the defendants are in possession on the basis of agreement dated 17.7.1984 ? OPD
vi) Whether the plaintiffs are estopped from filing the suit ? OPD
vii) Whether the defendants have become owners by way of adverse possession as alleged in para 5 of the PO ? OPD
viii) Whether the suit is time barred ? OPD
ix) Whether the plaint has not been properly valued for purpose of court fee and jurisdiction ? OPD
x) Relief."
Aggrieved from this judgment and decree dated 25th March, 1994, the defendants Ram Niwas preferred an appeal. This appeal was dismissed having no merits vide judgment dated 18th January, 1997. It is this judgment and decree which has been assailed before this Court in the Regular Second Appeal.
3. The basic contention that has been raised on behalf of the appellants is that the learned courts below have passed decree for injunction without even giving a finding whether the plaintiffs are in possession of the plot in question or not. He further submits that the relief granted is beyond the purview of the plaint and the relief claimed therein.
4. Both these contentions raised on behalf of the appellants have merits. With the help of the learned counsel for the parties, the judgments in question have been perused. The learned counsel appearing for the respondents herein has not been able to show that any positive finding in favour of the plaintiffs has been recorded in regard to the factum of possession. Issue No.2 has been dealt with and decided alongwith 5 other issues but no definite finding has been recorded based on documents or oral evidence by the Court, which could establish the possession of the plaintiffs on the property in question. It has been stated by the trial court in its judgment that Jagdish Chand was in possession of the property in question. That fact is not in issue because both the parties claimed possession through the same person. The judgment of the learned trial court in any case merged into the judgment of the first Appellate Court and some findings and observation of the first Appellate Court needs to be noticed at this juncture.
"He referred the statement of plaintiff Smt. Santosh (P.W.1) who deposed that the defendants have taken forcible possession of the plot in dispute about 4-5 months back after throwing away the firewood etc. belonging to the plaintiffs. PW.4 Murli attesting witness of the sale deed allegedly executed in favour of Jai Chand deposed in cross-examination that Surjan is in possession of the plot in dispute for the last 15/20 years. PW.5 Krishan Lal, a witness of agreement PW5/A also deposed that Surjan and his son are in possession of the plot and the same is not in possession of plaintiff Santosh. PW.7 Jagdish vendor deposed that he did not see the plot in dispute at the spot, after sale. In view of these depositions, learned counsel contended that possession of the defendants stands proved beyond doubt. He argued that when the plaintiffs were not in possession of the suit property they are not entitled to relief of prohibitory injunction and has cited 1987 PLJ. 354, Dalip Singh and other v. Harchand Singh and others.
"Sh. Anil Yadav, Advocate who was appointed as Local Commissioner by the trial court submitted his report Ex.DW 1/2 to the effect that defendant Surjan was in possession of the plot in dispute and that calf, Khurli, stone sheets, Turi, hut and Gandasa belonging to him were in existence there. Learned counsel for plaintiffs pointed out that local Commissioner was appointed vide order dated 12.6.1989 and was directed to submit his report by 20.9.1989. However, he did not submit report in time and the suit was adjourned a number of times. Report was submitted on 16.12.1989. Learned counsel argued that then the Local Commissioner fails to submit the report within specified time, no reliance should be placed on its report. I am inclined to agree with the contention of learned counsel that it was not the function of the Local Commissioner to make enquiry and to give a finding as to who was in possession of the suit property.
His further contention is that merely because the defendants placed firewood and temporary hut etc. on the plot, it does not amount to their physical possession. Learned trial court rightly remarked that in view of the fact that only temporary construction such as pegs Khurli, Chhaper etc. were in existence in the plot in dispute it can easily be taken that the plot was vacant and on the basis of such like temporary structures, it could not be taken that the defendants had acquired title by way of adverse possession."
The cumulative effect of the above observations read in conjunction with the fact that no definite finding has been recorded in regard to the possession of the plaintiffs in the suit on the disputed land leads to only one conclusion that the suit for injunction could not have been decreed by the courts below. It is settled principle of law that a suit simipliciter for prohibitory injunction cannot be maintained by a person who is not in physical possession of the property in dispute. It was expected from the trial court, to record such a finding with certain definitness and finding on issue No. 2 ought to have been recorded with great clarity and correct empathy of law applicable to the present case. The reliance placed by the learned counsel for the appellants on the case of Dalip Singh and others v. Harchand Singh and others 1987 R R R 448 is apparently correct. Even if the finding with regard to the ownership of the respondents herein is correct still it would not help the plaintiffs in any way unless the plaintiffs have shown their clear possession on the record and such possession was accepted by the courts below.
5. Learned counsel appearing for the respondents vehemently argued that in reply to para 1 of the plaint, the defendants had disputed that the plot in question is not in their possession and as such the finding of the courts below and particularly of the trial court are correct. In order to appreciate this contention, it may be appropriate to reproduce para 1 of the written statement filed by the defendants.
"1. Para No. 1 of the plaint is not admitted and is denied. The measurements and boundary staled in this para of the plaint are not correct according to the spot. Sh. Jagdish Chand was not competent to sell the plot stated in this para of the plaint. However, the plot in possession of the defendants is not the same which is described by the plaintiff in this para of the plaint. The alleged sale by Sh. Jagdish Chand is illegal and void and is not binding on the answering-defendants."
The bare reading of the above paragraph shows that the defendants has denied the measurements and boundary of the plot in question and has also asserted that Jagdish Chand was not competent to sell the plot. They had also denied that the plot in possession of the defendants is not the same which has been described in the plaint. I are unable to see as to how this stand of the respondents is of any assistance to them because every plaintiff must plead his case and prove the same before the Court. It cannot avail any benefit accruing from the vague pleadings, more so if the plaintiff has not been able to establish his case. The own witnesses of the plaintiffs had stated that the defendants were in possession of the plot in question. The learned trial court thus, concluded that there were certain temporary structure on the property in question which apparently did not belong to the plaintiffs in the suit. In these circumstances, it would not be proper for the Court to hold by a mere inference that the plaintiffs are in possession of the suit property.
6. The parties have filed photo copies of the relevant record during the arguments.
7. It needs to be noticed that in the plaint no averment has been made by the plaintiffs that there is any structure raised by them on the plot in question. Thai being so, the oral and documentary evidence which have been produced on record shows that there are certain structure on the property in dispute. PW.4 and PW.5 the main independent witnesses of the plaintiffs have clearly admitted in their cross examination that Surjan predecessor-in-interest of the appellants had been in possesion of the plot for 15-20 years and these witnesses have also referred to certain structure in site in question.
8. As learned Courts below have even granted a relief which was-not prayed it the suit i.e. relief with regard to the mandatory injunction. To be more precise then is apparent contradiction in the para relating to the relief granted. If the plaintiff; are in possession then how the question of giving directions to the defendants to remove structure within a period of one month, does arise, failing which the plain tiffs were given right to remove the structure with the help of the Court. Further, the later part of the direction is correct then the suit for prohibitory injunction could not have been decreed.
9. In view of my above discussion, the findings of the learned courts below on is sues No.2 and 3 are liable to be set aside and consequently the decree for prohibitory and mandatory injunction passed in favour of the plaintiffs and against the defendants is also liable to be set aside.
10. In result, the appeal is accepted, judgments and decree of the courts below dated 25.3.1994 and 18.1.1997 are hereby set aside. The suit of the plaintiffs for prohibitory injunction is hereby dismissed. However, there shall be no order as to costs in the facts and circumstances of the case.
