Nisha Gupta, J.@mdashBoth these second appeals under Section 100, CPC have been filed against the judgment and decree dated 20-10-1993 passed by Addl. District Judge, No. 7, Jaipur City, Jaipur in Civil Regular First Appeal Nos. 19/91, 18/91 reversing the judgment and decree dated 4-2-91 passed by Additional Civil Judge, No. 4, Jaipur City, Jaipur in Civil Suit Nos. 763/92 and 764/92 by which the suit has been dismissed. Since both these appeals raise common question of law and facts, they are decided by this common judgment. For convenience, the facts are taken from S.B. Civil Second Appeal No. 266/93. The brief facts leading to filing of this second appeal are that the plaintiff-respondent filed a civil suit for injunction and demolition of constructions made by the defendant on the plot in question. It was alleged in the plaint that property has been purchased and possession of the property was also handed over to the plaintiff but in May, 1982 when plaintiff went on the plot, it was found that a room was constructed and a small gate has also been fixed, hence the suit for permanent and mandatory injunction has been filed. The contention of the appellant before the Court below was that the plaintiff is not in possession of the suit property, suit is not triable by civil Court. On the pleadings of the parties, four issues have been framed and the Court below has held that the civil Court has no jurisdiction to entertain the suit and also held that plaintiff is not in the possession of the suit property. The suit for injunction is not maintainable as he has not prayed for the possession of the property and suit has been dismissed but the appellate Court has held that as the plaintiff is the owner of the land and possession goes with the ownership, he is entitled for decree of permanent injunction and it was held that the civil Court has jurisdiction to entertain the suit and suit has been decreed, hence this appeal.
2. The appeal has been admitted on the following substantial questions of law vide order dated 25-11-1993:
"(i) Whether the disputed plot in question is an agricultural land according to the averment made by the plaintiff in the plaint and thereby this suit is exclusively triable by the Revenue Courts and the jurisdiction of civil Court is expressly barred by the provisions of Rajasthan Tenancy Act?
(ii) Whether the learned first appellate Court cannot interfere with the findings of fact recorded by the trial Court on issue Nos. 2 and 3 without analyzing evidence and without giving cogent reasons for holding that trial Court has erred in appreciation of pleadings as well as evidence of the parties or that the trial Court has not correctly applied the principles of law?
(iii) When admittedly, the plaintiff is in possession of the disputed plot, whether a suit for injunction is maintainable?"
3. Heard the learned counsel for the parties and perused the judgments and decree under appeal as well as the original record of the case.
Issue No. 1.
4. The main stress has been led on this issue that in the plaint it has been pleaded that disputed plot is an agricultural land and when land is agricultural one, only revenue Courts have jurisdiction to entertain suits in view of the provisions of Section 207 of the Rajasthan Tenancy Act and Court below was also of the opinion that only revenue Court is having jurisdiction to entertain such type of suits but the appellate Court has held that only narration in the plaint could not decide the jurisdiction of the Court and as land is situated in urban area, the civil Court has jurisdiction to entertain the suits.
The contention of the counsel for the appellant is that when land has not been converted into abadi land, it is an agricultural land and same has been stated in the plaint and also in the statement of plaintiff. The findings of the appellate Court are perverse and reliance has been placed on Rama Kant Khetan v. Sri Ram Het Gupta, RLR 1985 281.
Per contra, the contention of the respondents is that when disputed land is in middle of the abadi, there is no evidence that it is now been used for cultivation and admittedly, land has been purchased for residential purposes, the Civil Court has jurisdiction and reliance has been placed on Banshidhar v. Ram Narain, 1997 WLC (Raj) UC 676 and Ravindra Kumar v. Swapan Choudhary, 2012 (5) WLC (Raj) 635 : (2012 AIR CC 2772 (Raj)) wherein it has been held as under:--
"The jurisdiction of civil Court is saved as soon as the pure character of land in question as agricultural land, is lost and that becomes an abadi land though by virtue of some statute or de facto by user thereof for residential purposes or purposes other than agricultural. The thin line division of the jurisdiction of the civil Courts and revenue Courts cannot be crossed to oust the jurisdiction of civil Court which can more appropriately decide the civil rights of the parties rather than the revenue Courts who are expected to decide the tenancy rights of the parties under the Rajasthan Tenancy Act coupled with Rajasthan Land Revenue Act which were enacted as land reforms laws in the years 1955 and 1956 respectively."
5. In view of the law laid down supra, in the present case, it is true that in plaint it has been stated that agricultural land has been purchased but admittedly, land has been purchased for residential purposes and appellate Court has also held that by notification dated 9-10-72, it has been included in the urban area and use of land is the prime consideration to ascertain jurisdiction of the Court and here admittedly, the land has been used for residential purpose and purpose other than agricultural and appellate Court was right in holding that the suit is triable by civil Court and not barred by the provisions of the Rajasthan Tenancy Act and accordingly, the substantial question of law No. 1 stands decided against the appellant.
Issue No. 2
6. The contention of the appellant is that the findings of the appellate Court are perverse and has not appreciated the evidence in right perspective and only guided by the fact that issue No. 1 which is essentially as regards the ownership of the land has been decided in favour of plaintiff-respondent and accordingly issue No. 2 which was in relation to possession of the property has been decided against him whereas as per contention in the plaint on the day of the filing of the suit, the plaintiff was not in possession of the property as constructions have been made by the appellant and without praying for the relief of possession, issue No. 2 could not be and should not be decided in favour of respondent.
7. Issue No. 1 has been framed essentially as regards the ownership of the land but a word has also been used as regards the possession whereas issue No. 2 independently has been made as regards the relief for injunction and possession of the property. It is true that issue No. 1 has been decided in favour of plaintiff and while deciding issue No. 1, the Court below has held that plaintiff is the owner of the property and no discussion has been made about the possession of the property but in deciding issue No. 2, factum of possession has been considered and it has been categorically held by the trial Court that plaintiff was not in possession of the property at the time of filing of the suit and accordingly the suit has been dismissed but the appellate Court has not gone into the merit of the factum of the possession and decided Issue No. 2 only on the presumption that when issue No. 1 which is also in regard to possession of the land has been decided in favour of plaintiff, he is entitled for injunction. The contention of the appellant is that in a suit for permanent injunction, the findings of title is not required to be made and the Courts should confine their findings regarding possession only and rightly relied upon
8. The contention of the respondent is that when the appellant has not assailed the findings of issue No. 1, the appellate Court was right in holding that when issue No. 1 has been decided in favour of plaintiff and no objection has been raised, it has attained finality and he is entitled for the relief and rightly allowed so. The contention of the appellant is that as the suit has been dismissed, he could not file an appeal against the finding on issue No. 1 and reliance has been placed on Neon Lawrie v. M/s. O.R. Properties Builders (P) Ltd. 2012 (2) DNJ (Raj) 1161 : (2012 AIR CC 2501 (Raj) and
Per contra, the contention of the respondent is that in a suit for mandatory injunction, relief of possession could be claimed and reliance has been placed on
Here in the present case, admittedly simpliciter suit for permanent injunction has been filed and plaintiff respondent was not in possession of the property, hence in view of the law laid down in Raj Dulari (AIR 2012 (NOC) 187 (Raj) (supra), the appellate Court''s finding are perverse and appellate Court has not applied the principle of law rightly, hence question No. 2 stands decided in favour of the appellant.
Issue No. 3
As already observed that the plaintiff is not in possession of the disputed plot, hence suit for injunction is not maintainable in view of the law laid down in Raj Dulari (supra), question No. 3 also stands decided in favour of the appellant.
In view of the above, both these appeals succeed and are allowed. The judgments and decree under appeal dated 20-10-1993 passed by Addl. District Judge, No. 7, Jaipur City, Jaipur in Civil Regular First Appeal Nos. 19/91, 18/91 against the appellants are quashed and set aside.
