Tulsa v. Suratram — 1961 DIGILAW 20 (RAJ)

This appeal has come up before me under sec. 13(2) of the Rajasthan Land Revenue Act, 1956, as the learned Members of the Bench who heard it were divided in their opinion as to the order to be made in it. I have had the advantage of going through the judgments of my learned colleagues. I have heard the learned counsel for the parties as well. The appellant brought a suit on 20.3.1958 for a permanent injunction against the respondents in respect of the land in dispute with the allegations that he had been in possession as a tenant for the last 20 years paying rent to the respondents and that the respondents were threatening to dispossess him. An application for grant of a temporary injunction during the pendency of the suit was also moved by the appellant and the same was granted by the trial court. The respondents in their written statement pleaded that the appellant was admitted on theka for a period of one year only, that thereafter he continued in possession unlawfully, that before the Panchayat Board the appellant had transferred possession over the land in favour of the respondents. After framing necessary issues and recording the evidence of the parties the trial court • came to the conclusion that the appellant was in possession at the time of the institution of this suit and that the respondents inspite of the issue of a temporary injunction wrongfully dispossessed the appellant. The trial court granted a decree in favour of the appellant accordingly. The first appellate court held that after the institution of the suit the appellant was dispossessed and hence his proper remedy was to file a suit for recovery of possession. it was also admitted before him on behalf of the appellant that such a suit had been filed and on this ground alone the decision of the trial court was set aside. In second appeal one of the learned Members of the Bench Shri R. N. Hawa held that the ground on which the learned Additional Commissioner rejected the suit was untenable, as under inherent powers of the court conferred by sec. 151 C.P.C. possession could be restored to the appellant. The other learned Member Shri Khemchand has not expressed any different opinion on this proposition of law. 151 C.P.C. possession could be restored to the appellant. The other learned Member Shri Khemchand has not expressed any different opinion on this proposition of law. He was however of the opinion that "the trial court did not hold that the plaintiff was dispossessed by the defendants subsequent to its order dated 19.4.54" He was also of the view that as a suit for recovery of possession had already been instituted by the appellant it would not be proper to interfere in second appeal and that there was no occasion to exercise the powers under sec. 151. C.P.C. As observed by their Lordships of the Rajasthan High Court in I.L.R. 3 (1953) Rajasthan 866 "The general rule is that the rights of parties to a suit must be regulated with their state at the date of the institution of the suit and the suit must be tried in all its stages on the cause of action as existed on the date of its commencement, and the relief claimed in the suit must be confined to matters existing at that date. But there are exceptions to this general rule and it is open to a court in exceptional cases to take into consideration events which may have taken place subsequent to the filing of the suit and grant relief on their basis where the relief as claimed originally in the suit may have become inappropriate by reason of altered circumstances and where this may appear to be necessary to shorten un-necessary litigation between the parties or tend to subserve the substantial interest of justice. Such a power has been held to subsist even at the stage of appeal". A similar view was expressed by their Lordships of the Rajasthan High Court in Neelkanth Vs. State of Rajasthan (1957 RLW 20 ) In that case the plaintiff was dispossessed during the pendency of the litigation and he was put back in possession for restoration of the status quo before the suit. A similar view was taken in Azim Khan Vs. State (1958 RLW 90 ) In that case the plaintiffs had brought a suit for declaration and injunction only but before an injunction could be served on the State the plaintiff had been dispossessed. The question arose as to whether an amendment of the plaint was necessary or not. A similar view was taken in Azim Khan Vs. State (1958 RLW 90 ) In that case the plaintiffs had brought a suit for declaration and injunction only but before an injunction could be served on the State the plaintiff had been dispossessed. The question arose as to whether an amendment of the plaint was necessary or not. The decisions referred to above were quoted with approval and it was held that to insist on an amendment would be an entirely,un-necessary protraction of the litigation and that a relief for possession could be granted to them because of subsequent developments. The learned counsel for the respondents has frankly conceded his inability to show me any decision of the Rajasthan High Court or any other High Court wherein a contrary view may have been held. Hence it is perfectly clear that a wrongful dispossession of the appellant after the institution of the suit cannot justify a rejection of the suit for the relief regarding possession can be granted under sec. 151 C.P.C. My learned colleague Shri Khemchand was of the view that the trial court had not given any definite finding as regards the dispossession of the appellant after the institution of the suit. With due deference I would differ with him on the point. In the first place the judgment of the trial court makes it abundantly clear that it found as a fact that the appellant was wrongfully dispossessed by the respondents even after the grant of a temporary injunction. The order dated 4.6.1959 is a nullity as it does not decide the point which should have been decided. An injunction order restraining the party against whom it is issued for disturbing the possession of the other party implies a judicial finding that the party in whose favour it is issued is in possession and that the party against whom it is issued is not in possession. That party cannot be heard to say that he was in possession all the time and therefore he has not contravened the injunction order (AIR 1961 Madhya Pradesh 9). If the trial court by its order dated 4.6.1959 omitted to take any proper steps against the respondents for contempt they should be thankful for that. But merely because of this omission they cannot be allowed to say that they were in possession even at the time of the institution of the suit. If the trial court by its order dated 4.6.1959 omitted to take any proper steps against the respondents for contempt they should be thankful for that. But merely because of this omission they cannot be allowed to say that they were in possession even at the time of the institution of the suit. Similarly the view that possession should not be restored simply because a separate suit has been filed is to my mind untenable. The courts have inherent powers to prevent abuse of process and their decisions should subserve the cause of substantial justice. This is a fit case where such a power should be exercised. The learned Additional Commissioner had decided the appeal on one point only. I therefore invited the attention of the learned counsel for the parties to other points involved in the case. The contention of the respondents is that they got possession of the land in dispute in accordance with a decision of the Panchayat Board dated 31-12-1957. It has also been argued that as it) was an award by the arbitrators appointed by the parties, the question of jurisdiction of the Panchayat Board was not material. Some rulings were also cited by the learned counsel for the respondents to show that even if the award was illegal it was not open to the appellant to challenge it. This question is obviously besides the point. The so called decision of the Panchayat Board is dated 15-12-1957 and the only relevant portion therein is that after the harvesting of the unhalu crops which was standing over it it would be open to the respondents to have the land cultivated by some body else. In other words the appellant was to continue in possession till the end of the Rabi harvest. The appellant brought this suit long before it i.e. on 20.3.58. It has also to be remembered in this connection that the respondents had sought ejectment of the appellant from the disputed land under sec. 177 of the Rajasthan Tenancy Act but were unsuccessful therein and their application was rejected by the S.D.O. Mandalgarh on 27.1.1957. It was incumbent upon the respondents to prove that the appellant had actually surrendered possession in accordance with so called award. 177 of the Rajasthan Tenancy Act but were unsuccessful therein and their application was rejected by the S.D.O. Mandalgarh on 27.1.1957. It was incumbent upon the respondents to prove that the appellant had actually surrendered possession in accordance with so called award. The learned counsel for the respondents has frankly conceded before me that there is no shred of evidence which may suggest that such a transfer of possession actually took place. Thus the irresistible conclusion is that inspite of the so called decision of the Panchayat Board dated 15-12-1957 the appellant continued in possession of the disputed land. The respondents threatened to dispossess him by resorting to action specified in the plaint and which to some extent have been admitted in the written statement. The appellant is clearly entitled not only to the relief sought by him in the plaint but also to recovery of possession as he was dispossessed wrongfully during the pendency of the litigation, For these reasons I find myself in agreement with the decision proposed to be given by Shri R.N. Hawa in the case. It may there fore be placed before the Division Bench for being decided in accordance with majority view. By the majority opinion the appeal is hereby accepted and the order of the learned appellate Court is set aside and it is directed also that the appellant shall be restored the possession of the suit land and well, restore those of the learned S.D.O. Mandalgarh dated 28.8.56.