JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard learned counsel for the parties and perused the record. 2. The plaintiff-respondent filed suit No. 30 of 1988: Shambhoo Dayal Sharma v. Mohd. Khan, claiming himself to be owner and in possession of a plot measuring 45 feet East-West and 29 feet North towards West and 33 feet North South and out of the said plot, defendant-plaintiff was tenant of a portion measuring 16 ft. East-West and 30 ft. North-South at the rate of Rs.40/- per month which he took for the business of Bans-Balli. There is a 9 ft. wide passage shown in the plan towards the West of the said portion which is also said to be part of the plaintiff’s plot mentioned in the plaint. 3. It is submitted that the defendant without permission or consent of the plaintiff had raised a “Tapra” on the said plot. Subsequently, the plaintiff had filed suit No. 515 of 1985: Shambhoo Dayal v. Mohd. Khan, in the Court of Munsif, Jhansi, for ejectment from the said plot after terminating his tenancy under Section 106 of Transfer of Property Act. 4. The case was contested by the defendant denying the title of the on the plot but he has been found to be the owner and landlord of the plot in dispute by the Court of IIIrd Additional Munsif, Jhansi vide judgment dated 31.8.1987, though the suit was dismissed on the ground that it was barred by Act No. 13 of 1972. Aggrieved by the said judgment, the plaintiff filed Civil Appeal No. 196 of 1987. 5. Thereafter, the defendant in the second week of the month of September, 1987 is said to have encroached upon the land of the plaintiff by putting his Bans-Ballis on a portion of the plaintiff’s plot in dispute towards East which was subject matter of case No. 515 of 1985, measuring 21 ft. East-West, 31 ft. North-South towards West, 33 ft. North-South towards the East. The said plot is shown by letters O.B.C.P. as appended in the plaint plan. The defendant has also removed Khands and boulders etc. of the plaintiff from the said plot. 6. In this context, the plaintiff asked the defendant to remove the encroachment, but when no heed was paid, written notice was given by the plaintiff to the defendant on 13.11.1987 by registered post which he refused to accept. The defendant has also removed Khands and boulders etc. of the plaintiff from the said plot. 6. In this context, the plaintiff asked the defendant to remove the encroachment, but when no heed was paid, written notice was given by the plaintiff to the defendant on 13.11.1987 by registered post which he refused to accept. Hence, another notice was sent to him which was served upon him. The claim of the plaintiff in the suit was that he should be given possession of part of the plot encroached by the defendant as well as damages at the rate of Rs.300/- per month from 15.9.1987 till the date of the suit which he has been deprived due to illegal encroachment by the defendant on his land. The relief claimed by the plaintiff is as under: “(1) That a decree for mandatory injunction be passed in favour of the plaintiff against the defendant directing him to remove his Bans-Balli and any other kind of possession from the plot shown by colour red and letters O.B.C.P. in the plaint plan, situated at Jhokan Bagh, Civil Lines, Jhansi, within the time fixed by the Court. On his failure, the plaintiff be permitted to remove the encroachment through execution at the cost of the defendant. (2) That damages Rs.1,350/- (Rs. One thousand three hundred fifty) for the period 15.9.1987 to 30.1.1988 at the rate of Rs.300/- (Rs. three hundred per month and pendentilite and future at the said rate be also awarded to the plaintiff from the defendant. (3) That any other relief to which the plaintiff be found entitled, be awarded to him. (4) That costs of the suit be awarded to him.” 7. The case of the defendant-appellant before the trial Court was that the plaintiff has no right to file such suit. On considering the pleadings and evidence on record, the trial Court came to the conclusion that the plaintiff alongwith other heirs is co-owner of the plot in dispute and has right to institute the suit. It was also recorded by the trial Court that the plaintiff is not in possession of the disputed part of the plot in dispute as Mohd. Khan and his heirs are unauthorized occupants over it from 15th September 1987 and that the plaintiff is entitled for damages at the rate of Rs.100/- per month. It was also recorded by the trial Court that the plaintiff is not in possession of the disputed part of the plot in dispute as Mohd. Khan and his heirs are unauthorized occupants over it from 15th September 1987 and that the plaintiff is entitled for damages at the rate of Rs.100/- per month. Accordingly, the trial Court vide judgment and decree dated 15.3.2002 decreed the suit for damages at the rate of Rs.100/- per month from 15 September, 1987. 8. Aggrieved by the said judgment and decree dated 15.3.2002, the plaintiff-respondent filed civil appeal No. 19 of 2002 and defendant-appellant filed civil appeal No. 23 of 2002 in the Court of District Judge, Jhansi. Both the appeals were consolidated and were transferred for hearing before Addl. District Judge, Court No. 5, Jhansi. Consequently, civil appeal No. 23 of 2002 filed by defendant-appellant was dismissed and civil appeal No. 19 of 2002 filed by plaintiff-respondent was allowed by judgment and decree dated 8.5.2007 directing the defendant-appellant for delivery of possession of the land in dispute within one month and also awarded damages at the rate of Rs.300/- per month from 19.9.1987. 9. This second appeal has been filed challenging the validity and correctness of the judgment and decree dated 8.5.2007 passed by Additional District Judge, Court No. 5, in Civil Appeal No. 19 of 2002 arising out of Original Suit No. 30 of 1988. 10. The relief sought in this second appeal is to allow the appeal and set aside the judgment and decree passed by lower appellate Court and for dismissing the suit of the plaintiff-respondent for possession through out with cost. 11. The impugned judgment is assailed on the ground that the lower appellate Court has misconstrued the provisions of Section 41 of the Specific Relief Act, 1963 in decreeing the suit for possession of the land in dispute specifically when the relief for possession was not sought for in the plaint; that lower appellate Court having come to the conclusion that the finding recorded by the trial Court on issue No. 9 regarding damages is in accordance with law and the same is confirmed, illegally awarded the damages at the rate of Rs.300/- per month while the trial Court had awarded damages only at the rate of Rs.100/- per month. 12. No other point has been argued by Sri B.N. Agrawal, learned counsel for the appellant. 13. 12. No other point has been argued by Sri B.N. Agrawal, learned counsel for the appellant. 13. In support of his contention Sri B.N. Agrawal, has placed reliance upon a judgment of Allahabad High Court in the case of Hashmat Husain and others v. Inayatullah and others, AIR 1958 All 706 . The relevant paragraph No. 15 of the said judgment is quoted as under : “Paragraph 15- Shorn of all embellishment the position in the present case would in our opinion, be this. The defendants are alleged to be trespassers over the land. They have made certain constructions over this land and are in possession over the same. In a case like this relief can be obtained by the usual mode of proceeding in ejectment. Consequently S. 56 of the Specific Relief Act which lays down that the exceptional relief by injunction should not be allowed, will be applicable”. 14. Per contra, the contention of learned counsel for the respondent is that the defendant-appellant had encroached over the adjoining vacant area of the plot which was not in his tenancy as shown by letters O.B.C. P. in the plaint map causing damages of Rs.300/- per month by his illegal possession. He further submits that in the written statement there is no specific denial that defendant has not made any encroachment over the land shown by the letters O.B.C.P. in the plaint. As such, the trial Court partly decreed the suit for damages at the rate of Rs.100/- per month from 15.9.1987 till ejectment/vacation of the disputed plot by the defendant-appellant while refusing relief for mandatory injunction. It is further submitted that on the question of res-judicata the appellate Court has also found that the suit is not barred by the principles of res-judicata and the finding of the trial Court in this regard has been confirmed by the appellate Court; that on other issues the appellate Court has also concluded that the disputed property is part of the sale deed which was obtained by late Ram Swaroop the father of the plaintiff in 1964 and that in 1973 partition between the family members of the plaintiff had taken place by which the disputed plot came under exclusive possession and ownership of the plaintiff-respondent. He further submits that the defendant-appellant had claimed perfection of his rights upon encroached part of the land by adverse possession and from perusal of judgment impugned as well as written statement filed by defendant-appellant it is clear that no such plea was taken by him in the Court below. It is urged that in the aforesaid fact, the appellate Court rightly came to the conclusion that the plea of adverse possession cannot be taken by the plaintiff-appellant and as such he is liable to be vacated from the land in dispute. 15. Lastly he submitted that the trial Court had not addressed itself to the true scope and provision of C.P.C. and Specific Relief Act. 16. In support of his contention, learned counsel for the respondent has relied upon paragraph 7 of a judgment rendered by the Apex Court in the case of Sant Lal Jian v. Avtar Singh, AIR 1985 SC 857 . Relevant paragraph 7 of the said judgment is quoted as under: “In the present case it has not been shown to us that the appellant had come to the Court with the suit for mandatory injunction after any considerable delay which will dis-entitle him to the discretionary relief. Even if there was some delay, we think that in a case of this kind attempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Therefore, we are of the opinion that the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction”. 17. In the circumstances, after hearing learned counsel for the parties and perusing the records, it appears that the plaintiff had claimed Rs.300/- as damages against the defendant-appellant for illegal use and occupation of the land encroached by him. 17. In the circumstances, after hearing learned counsel for the parties and perusing the records, it appears that the plaintiff had claimed Rs.300/- as damages against the defendant-appellant for illegal use and occupation of the land encroached by him. A perusal of relief would show that the plaintiff had claimed relief of mandatory injunction against the defendant directing him to remove his Bans-Balli and any other kind of possession from the plot shown by letters O.B.C.P. in the plaint plan, situated at Jhokan Bagh, Civil Lines, Jhansi and for pendentilite and future damages at the rate of Rs.300/- per month in the Court of Munsif, Jhansi. Therefore, the contention of learned counsel for the appellant that suit for mandatory injunction was not maintainable as possession was not sought as a relief is incorrect on the basis of the record. As regards adverse possession is concerned, it appears from record that there was no open and hostile possession by the defendant-appellant against true owner i.e. plaintiff-respondent. 18. Thus, paragraph 15 of Hashmat Husain v. Inayatullah (supra) does not help the appellant. 19. As stated above the first appellate Court has rightly noticed that the relief claimed by the plaintiff-respondent was in respect of possession and damages hence no error has been committed by it. On facts and law in decreeing the suit taking consideration to the provisions of Section 41 of Specific Relief Act the plaintiff-respondent in his suit had claimed damages of Rs.300/- per month on the encroached land from the defendant-appellant though only Rs.100/- per month was allowed by the trial Court. The first appellate Court was well within its jurisdiction to reassess the quantum of damages @ Rs.300/- per month in the facts and circumstances of the case. 20. For the reasons stated above, the appeal is dismissed with costs of Rs.5,000/-. It is directed that execution proceedings pending in the case shall be decided expeditiously preferably within a period of two months from today. —————