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2010 DIGILAW 1357 (RAJ)

LR’s of Hari Ram v. Mangi Lal

2010-08-03

DINESH MAHESHWARI

body2010
JUDGMENT 1. - This civil second appeal, preferred by the plaintiff appellant (since deceased and represented by his legal representatives), against the judgment and decree dated 22.09.1995 as passed by the Additional District Judge No. 3, Jodhpur in Civil Appeal (Decree) No. 75/1994, was admitted for consideration on 22.11.1995 on the following substantial questions of law:- "1. Whether the plaintiff was entitled to get a decree in respect of the reliefs sought in the plaint on the basis of his possession ? 2. Whether it was necessary for the plaintiff to have pleaded the factum of mortgage on the basis of Ex. 2 and whether in absence of such pleadings, the plaintiff was entitled to lead evidence regarding Ex. 2 ?" 2. So far this appeal is concerned, the controversy between the parties lies in a narrow compass and a brief reference to the background facts would suffice. The plaintiff-appellant Hari Ram (since deceased and represented by his legal representatives) filed the civil suit bearing number 59/1990 in the Court of Civil Judge (Junior Division), Bilara seeking essentially the relief of injunction with the submissions that he was in possession of the property (house) situated at village Uchiyara as described in paragraph 1 of the plaint. The plaintiff alleged that the house in question was of his ownership and possession and he was residing thereat but the defendant wanted to dispossess him by physical force and extended threats to that effect on 28.10.1990. The plaintiff asserted that the defendant was not entitled to interfere with his possession and was required to be restrained by perpetual injunction. The defendant put the suit to contest while disputing the averments taken by the plaintiff regarding ownership and possession of the house in question; and asserted that the house was of his ownership and he was in possession thereof. The defendant put the suit to contest while disputing the averments taken by the plaintiff regarding ownership and possession of the house in question; and asserted that the house was of his ownership and he was in possession thereof. On the pleading of the parties, the following issues were framed by the learned Trial Court:- " 1- vk;k oknxzLr edku oknh dk feydh;r dk ,oa dCtklqn fjgk;'kh edku gS vkSj oknh izfroknh ds fo:) dCts esa gLr{ksi ds fy;s LFkkbZ fu"ks/kkKk ikus dk vf/kdkjh gS\ oknh 2- vk;k oknxzLr edku izfroknh dk feydh;rh ,oa dCtk dk gS vkSj ftl ij oknh dk dksbZ gd gdwd o vf/kdkj ugha gS ,oa oknh dk okn pyus yk;d ugha gS\ izfroknh 3- vk;k okn oknh }kjk >wBk is'k fd;k x;k gksus ls izfroknh oknh ls gtkZuk ikus dk vf/kdkjh gS\ izfroknh 4- vuqrks"k\ " 3. After evidence of the parties, the learned Trial Court proceeded to decide the matter by its judgment and decree dated 23.08.1994. In relation to issue No.1, the learned Trial Court observed that in this case, the question of ownership was not being determined and rather, the plaintiff himself admitted the house to be the ownership of the defendant but then, asserted the same having been delivered in his possession by the defendant's father against a loan of Rs. 424/-. So far the question of possession was concerned, the learned Trial Court referred to the oral evidence led by the parties including the testimony of the Commissioner who had visited the site; and also referred to a document Ex. 2, suggested by the plaintiff to be that of the mortgage transaction. The learned Trial Court observed that the validity of the document Ex. 2 was not to be examined but from the said document and the testimony of the witnesses it was apparent that the plaintiff came in possession of the suit house with the consent of the defendant's father and was continuing in possession. The learned Trial Court observed that the validity of the document Ex. 2 was not to be examined but from the said document and the testimony of the witnesses it was apparent that the plaintiff came in possession of the suit house with the consent of the defendant's father and was continuing in possession. In view of this finding on the question of possession, the learned Trial Court observed that the defendant was entitled to dispossess the plaintiff from the suit house only by taking recourse to the due process of law and decreed the suit to the following effect:- " oknh ds i{k esa izfroknh ds fo:) 'kk'or O;kns'k bl vej dk tkjh fd;k tkrk gS fd izfroknh oknh dks okn ds in la0 1 esa of.kZr prqlhZek ds edku ls fof/k ds lE;d~ vuqdze ls vU;Fkk csn[ky ugha djsA " 4. The defendant preferred the first appeal against the judgment and decree so passed by the learned Trial Court. The learned Appellate Court proceeded to allow the appeal so filed by the defendant by its judgment and decree dated 22.09.1995 essentially on the reasons that the document Ex. 2 was not referred by the plaintiff in his pleading and then, the Trial Court had not minutely examined as to how and when the house in question came in possession of the plaintiff. 5. Assailing the decree aforesaid, it has been contended in this appeal that the plaintiff being in settled possession of the house in question and this fact having categorically been found by the learned Trial Court, there was no justification for the learned Appellate Court to have interfered in the decree passed by the learned Trial Court. It is submitted that the Appellate Court has, without any reason, proceeded to doubt the document Ex. 2 for alleged want of pleadings and then, abruptly decided the matter against the plaintiff without considering other evidence on record and without appreciating that the document Ex. 2 could definitely be used for collateral purposes to show the nature and character of possession. The learned counsel for the respondent has supported the impugned judgment and decree with the submissions that the plaintiff having no right to remain in possession, the decree as passed by the Appellate Court cannot be said to be unjustified. 6. 2 could definitely be used for collateral purposes to show the nature and character of possession. The learned counsel for the respondent has supported the impugned judgment and decree with the submissions that the plaintiff having no right to remain in possession, the decree as passed by the Appellate Court cannot be said to be unjustified. 6. Having regard to the short and limited controversy calling for determination in this case, this Court would not like to make any comment on any other right or interest of the parties; but so far this appeal is concerned, without going into any other question, this Court is satisfied that the learned Appellate Court has unnecessarily and without any justification disturbed the decree passed by the learned Trial Court, as reproduced herein above. The said decree by the Trial Court had only been to the effect that the plaintiff shall not be dispossessed by the defendant without taking recourse to the due process of law. This decree called for no interference at all. 7. The fact that the original plaintiff has been in settled possession of the suit property was a finding precisely recorded by the learned Trial Court on a comprehensive examination of the evidence on record. The document Ex. 2 was only one such piece of evidence whereby the plaintiff suggested that the father of the defendant handed over the house in question to him after taking a loan of Rs. 424/-. The suit having been filed seeking the relief of perpetual injunction, the only question germane thereto was as to whether the plaintiff was in settled possession and was sought to be dispossessed without due process of law. It is very difficult to countenance the approach of the learned Appellate Court in observing that the Trial Court had not minutely examined as to how and when the house in question came in possession of the plaintiff. The Appellate Court, in fact, has not even gone into the other evidence on record and has not even found any such fact on the basis whereof the basic finding of the Trial Court on the question of possession could be reversed. In this case, even if the document Ex. 2 was removed out of consideration, that by itself was not decisive of the question of possession. 8. In this case, even if the document Ex. 2 was removed out of consideration, that by itself was not decisive of the question of possession. 8. Having examined the record in its totality, this Court is unable to find any fault in the ultimate conclusion of the learned Trial Court that the plaintiff was in settled possession of the suit property. In the given fact situation, the learned Trial Court cannot be said to have committed any error or illegality in issuing injunction only to the effect that the defendant shall not dispossess the plaintiff without taking recourse to the due process of law. Such a decree was unexceptionable and there was no reason or justification that the Appellate court proceeded to reverse the same. 9. In view of the foregoing discussion, this Court is of opinion that for the purpose of this appeal, Question No. 2 is not even required to be answered because the answer to Question No.1 itself remains in the affirmative, that is to say that the plaintiff was indeed entitled to get a decree in respect of the relief sought in the plaint on the basis of his possession. 10. In the aforesaid view of the matter, this second appeal is allowed to the extent indicated; Question No.1 is answered in the affirmative; and Question No. 2 is not required to be answered. The decree of the Appellate Court is reversed and that of the learned Trial Court is restored. 11. It is, however, made clear looking to the limited scope and subject of the present suit that the parties are otherwise free to take recourse to the appropriate remedies in accordance with law and none of the observations made in this case shall have any adverse effect on the rights of either of the parties in any such appropriate recourse. 12. In the circumstances of the case, the parties are left to bear their own costs throughout.Appeal allowed. *******