JUDGMENT Sudhir Agarwal, J. 1. Heard Sri Avanish Srivastava, Advocate, holding brief of Sri Atul Dayal, learned counsel for appellants and Sri K.K. Nirkhi, Advocate, for respondent. 2. Following substantial questions of law need be considered in this matter: "(1) Whether it was justified that Lower Appellate Court passed the judgment of reversal without recording a finding regarding the allegation of plaintiff that the possession was taken by defendants-appellant during the pendency of suit though Trial Court found that the said fact could not be proved by plaintiff? (2) Whether an injunction could have been granted by Lower Appellate Court though the plaintiff, who, as alleged at the time of filing of suit, was in possession, but could not prove so, and the amendment was made in the plaint that defendants are in possession, therefore the possession should be handed over to him, could not state as to when he was dispossessed and whether the suit in dispute was within limitation or not?" 3. In order to understand the dispute and to facilitate adjudication of the aforesaid issues, few relevant facts may be stated as under. 4. The plaintiff, Kanchan Singh, instituted Original Suit No. 70 of 1979 filing an undated plaint in the Court of Munsif, Hawali, Kanpur, registered on 27.2.1979. The plaint case set up by him is that he is owner in possession of a house and enclosure in the abadi of Mauza Tikwapur, Pergana Ghatampur, District Kanpur. The house was shown in the map appended to the plaint as ^^d[kx?k^^ and enclosure was shown by letters ^^d[kpN^^ . The house is on abadi no. 190/2 area 0-2-7 -17 and enclosure is on abadi no. 190/3 area 0-2-4-12. There is Sehan on the northern side of the boundary ^^?kdN^^ which is on abadi no. 191 area 0-2-6-5. On the southern side, there is another plot abadi no. 190/ 1 adjacent to abadi no. 183. Abadi no. 190/1 area 0-0-14-2 was the premises of plaintiff's father and with the permission of erstwhile Zamindar, he also started using abadi no. 183. All these premises of abadi no. 190/1 and 183 have been shown in the Plaint Map as ^^x[kt>^^ . After the death of plaintiff's father, now he is in possession of entire land as owner. Earlier there was a kachcha house which has now been demolished and plaintiff is getting a pucca construction raised thereon. 183. All these premises of abadi no. 190/1 and 183 have been shown in the Plaint Map as ^^x[kt>^^ . After the death of plaintiff's father, now he is in possession of entire land as owner. Earlier there was a kachcha house which has now been demolished and plaintiff is getting a pucca construction raised thereon. The defendant's ancestral house is at Arazi No. 177, area 0-1-13-2, which is on western side after two houses of disputed land. The defendants are criminals and are adamant to forcibly occupy the disputed land and to raise construction of their own. The cause of action arose on 25.2.1979 when the defendants threatened plaintiff of dispossession from the disputed land, and, therefore, a permanent injunction was prayed restraining defendants from interfering in the plaintiff's possession over disputed property shown as ^^x[kt>^^ and also not to raise any construction thereupon. 5. Defendants contested the suit. The defendants no. 1 to 3 filed a common written statement. It is said that the disputed land has never been in possession of plaintiff and instead there was a kachcha construction on the disputed premises, of defendants, which fell down and when they started raising construction thereupon, plaintiff created obstruction and has now filed a frivolous suit. 6. During the pendency of suit, plaintiff got his plaint amended by inserting paragraphs 8v, 8c and 8l as under: ^^8 v ;g fd orZeku okn nkf[ky djus ds i'pkr fn0 28@4@1979 okLrs lekr fu;qDr Fkh ,oa fn0 26-4-79 dks ifjoknhQSu us vnkyr Jheku th esa c;ku ns fn;k fd dksbZ i{k fookfnr Hkwfe ij nkSjku eqdnek dksbZ rkehjkr u djsxk ijUrq ckotwn mijksDr vkns'k ds izfroknhx.k us ekg twu lu 82 esa tc U;k;ky; Jheku xzh"ekodk'k esa cUn Fkh tcju rkehjkr djk yh ,oa NIij Mky nh ,oa [kqyh Hkwfe ij ,d ubZ nhoky N gkFk yach o chp esa [kaHkk cuk fn;k ,oa NIij j[k f[kjdh ,oa ntokts ds fy, txg [kqyh NksM+ nhA 8c- ;g fd mijksDr ifjfLFkfr esa vc oknh ds ikl tcju rkehjkr dks fxjok ikus ds vykok vU; dksbZ pkjk ugha gSA 8l- ;g fd izfroknx.k us fookfnr Hkwfe ij vukf/kd`r rkehjkr djds dCtk nkSjku eqdnek dj fy;k gS vr% oknh izfroknhx.k ls dCtk okil ikus dk vf/kdkjh gS\ (emphasis added) English Translation by the Court: "8A. That the present suit after being filed was posted for hearing for 28.04.1979; and on 26.04.1979, in presence of the plaintiff, the court declared that none of the parties shall raise any construction on the disputed land during pendency of the case but despite aforesaid order, the defendants had, during the closure of the court in June 1982 on account of summer recess, forcibly raised constructions; put up a shed; constructed a six-hand-long new wall on the open land and erected a pillar in the middle of it; and left an open space for window and door after putting up a shed. 8B. That in the aforesaid situation, the plaintiff now has no option other than to have the constructions demolished by force. 8C. That the defendants have, during pendency of the case, taken possession by raising unauthorised constructions over the disputed land. Hence, the plaintiff is entitled to take back the possession from the defendants. 7. In para 10 of the plaint, the plaintiff got addition of a sentence and also got inserted Para 10v which reads as under: 10- ;g fd okn dk dkj.k izFkeokj fnukad 25&2&1979 dks izfroknhx.k }kjk tcju dCtk djds bekjr rkehj djus dh /kedh nsus ls ,oa oknh }kjk euk djus ij vkeknk fQlkn gksus ls ,oa izfroknhx.k }kjk ekSdk ikdj tcju bekjr rkehj dj ysus dh /kedh nsus ls ckgnw twu lu~ 82 esa tcju rkehjkr djus ls ,oa nkSjku eqdnek fookfnr LFkku ij tcju dCtk dj ysus ls ekuuh; U;k;ky; ds U;k; {ks= ds vUrj~xr mRiUu gq;h ,oa ekuuh; U;k;ky; dks okn ds lquus dk vf/kdkj izkIr gSA 10v- ;g fd fookfnr edku ij dHkh dsnkj e`rd dk gd o fgLlk ugh jgk gS vkSj u gh mlds ejus ij mlds mRrjkf/kdkfj;ksa dk gh dksbZ gd o fgLlk jgk gSA pwafd ekuuh; U;k;ky; us dsnkj e`rd ds okjlku dks i{kdkj cuk;s tkus dk vkns'k ikfjr dj fn;k gSA vr% ojQk gqTtr vkbUnk izfroknh ua0 4 yxk;r 6 dks izfroknh cuk;k tkrk gSA^^ English Translation by the Court: 10. That the possession being forcibly taken over by the defendants on 25.02.1979, threats being held out by the defendants to raise constructions and their getting bent on being involved in affray in case of being restrained by the plaintiff, threats being issued to proceed with construction by seizing upon opportunity and using force, forcibly carrying out constructions in June 1982 and possession being forcibly taken over at the disputed site during pendency of the case, all activities having taken place within the territorial limits of the Hon'ble court, have given rise to a cause of action in the shape of first suit and have conferred the hon'ble court with the jurisdiction over the suit. 10A. That the deceased Kedar has never had any right to, and any share in, the disputed house nor have his heirs ever had any right and share, after his death. Since the court has passed an order impleading the heirs of the deceased Kedar as parties, hence, for further arguments, defendants 4 to 6 are hereinafter impleaded as defendants." 8. Two prayers (c) and (l) were also got inserted which are as under: (c) ;g fd fMxjh esUMsVjh batD'ku dh oknh ds i{k esa izfroknhx.k ds fo: ) bl vk'k; dh iznku dh tkos fd izfroknhx.k fookfnr LFkku ls viuk eyok gVkdj fookfnr LFkku dks ;Fkkor dj nsaA (l) ;g fd fMxjh csn[kyh oknhx.k ds i{k esa izfroknhx.k ds fo: ++) lknj Qjek;h tkdj oknhx.k dks gLo tkCrk dCtk o n[ky LFkku tks layXu uD'ks esa 'kCn d] [k] x] >] t ls njlk;k x;k gS ,oe tks 3 xV~Bk iwoZ&if'pe o 16 xV~Bk mRrj nfD[ku gS fLFkr xzke fVadokaiqj ijxuk ?kkVeiqj ftyk dkuiqj nsgkr ij ftldh lhek;sa mi'k; v esa Li'V : i ls nh gq;h gSa tfj;s vehu vnkyr fnyk;k tkosA English Translation by the Court: "(B) That a decree for mandatory injunction may please be passed in favour of the plaintiff and against the defendants asking the latter to remove the debris from the disputed site and bring it back as it was. (C) That a decree for eviction may please be passed in favour of the plaintiffs and against the defendants for the possession of the site shown by letters Ka, Kha, Ga, Jha, Ja in the appended maps and located 3 plots east to west and 16 plots north to south at Village Tinkawanpur, Pargana Ghatumpur, District Kanpur Dehat, with its limits clearly defined in remark Aa, to be handed over to the plaintiffs through the court." 9. The defendants filed an additional written statement denying the case set up by plaintiff by seeking amendment in the plaint. 10. Trial Court formulated 10 issues and Issues no. 1, 2, 8 and 9, relevant for the purpose of present appeal, are as under: ^^1- D;k oknh fookfnr lEifRr dk ekfyd o dkfct gS\ 2- D;k oknh /kkjk&9 ;w0ih0tsM0,0 ,oa ,y0vkj0 ,DV ds vurxZr fookfnr Hkwfe dk ekfyd gks x;k gS\^^ ^^8- D;k oknhx.k fookfnr Hkwfe ij cus gq;s fuekZ.k dks /oLr djk ikus dk vf/kdkjh gS\ 9- D;k okn ek= vkKkRed fus"ks/kkKk ckor~ djus foLekj rkehjkr dkuwuh : i ls dk;e jgus ;ksX; gS\^^ English Translation by the Court: "1. Whether the plaintiff is owner having possession over the disputed property? 2. Whether the plaintiff has become owner of the disputed land by virtue of Section 9 of U.P. Zamindari Abolition and Land Reforms Act?" "8. Whether the plaintiffs are entitled to go in for demolition of the construction raised on the disputed land? 9. Whether the suit seeking a mere order of injunction for demolition of the constructions is sustainable in the eyes of law?" 11. Issue no. 3 and 10, relating to Court fee were already answered by Trial Court as preliminary issues in favour of plaintiff. Trial Court found that one Sarjoo Prasad was Zamindar of Village Tikwapur and the entire abadi of Village Tikwapur was on Zamindari land of said Sarjoo Prasad. After considering the evidence, it found that though disputed premises was owned by plaintiff, but neither on the date of filing of suit nor in presenti he was in possession thereof. The issues no. 1 and 2 were answered accordingly. It then considered issues no. After considering the evidence, it found that though disputed premises was owned by plaintiff, but neither on the date of filing of suit nor in presenti he was in possession thereof. The issues no. 1 and 2 were answered accordingly. It then considered issues no. 8 and 9 and found that plaintiff has filed suit for permanent injunction and mandatory injunction but since he was not in possession of property in dispute and no relief for possession was sought, therefore, injunction could not have been granted since plaintiff was not in possession of dispute property on the date of filing of suit. It accordingly dismissed the suit vide judgment dated 26.8.1991 and decree dated 11.9.1991. 12. Plaintiff preferred Civil Appeal No. 77 of 1991 before Lower Appellate Court. 13. Since the plaint was allowed to be amended during pendency of appeal, by order dated 17.7.1993, the Lower Appellate Court formulated issues no. 11, 12, 13 and 14 further and remanded the matter to Trial Court with a direction to permit parties to adduce evidence further in respect to newly framed issues and thereafter decide the suit. Lower Appellate Court's judgment of remand is dated 24.9.1983 passed by Sri S.K. Saxena, 3rd Additional District Judge, Kanpur Dehat. The above issues no. 11 to 14 are as under: ^^11- D;k nkok dk ewY;kadu vc Hkh de fd;k x;k gS rFkk dksVZ Qhl vi;kZIr nh x;h gS\ 12- D;k oknh ds firk ,oa oknh dk vf/kdkj ;fn dksbZ Fkk] dCtk eq[kkyQkuk ekSu lEer o focU/ku ls lekIr gks x;k gS\ 13- D;k izfroknhx.k }kjk nkSjku nkok fookfnr Hkwfe ij dksbZ u;k fuekZ.k dj fy;k x;k gS\ ;k og fuekZ.k dsnkj }kjk fd;k x;k gS\ ;fn gkWa rks mldk izHkko\ 14- D;k dsnkj ds okfjlku eqYyk yky ,oa Jherh ikoZrh nkos ds vko';d i{kdkj gS vkSj D;k nkok muds i{kdkj u gksus ls nwf"kr gS\** English Translation by the Court: "11. Whether the suit is still undervalued and the court fee is underpaid? 12. Whether the right of the plaintiff and of his father, if any, has ceased by way of adverse possession, in view of doctrines of acquiescence and estoppel? 13. Whether during pendency of the case, any new construction has been raised on the disputed land by the defendants, or whether this construction has been raised by Kedar? If so, its effect? 14. 13. Whether during pendency of the case, any new construction has been raised on the disputed land by the defendants, or whether this construction has been raised by Kedar? If so, its effect? 14. Whether Kedar's heirs Munna Lal and Smt. Parvati are necessary parties to the claim, and whether the claim suffers from their not being arrayed as parties?" 14. After remand, plaintiff sought permission of Court below for impleadment of defendants 4, 5 and 6, which was allowed. They were so impleaded. 15. Trial Court, this time answered issues no. 1 and 2 both against plaintiff holding that neither he could demonstrate his ownership nor possession over the property in dispute. Considering issue no. 12 with respect to claim of defendants on the ground of adverse possession, Trial Court returned the same against plaintiff. While considering issue no. 13, Trial Court found that plaintiff did not adduce any evidence except of his oral deposition in which also he did not utter even a word that the disputed construction was raised during pendency of suit hence issue no. 13 was also answered against plaintiff. The suit was accordingly dismissed vide judgement and decree dated 19.10.1994 passed by 2nd Additional Civil Judge, Kanpur Dehat. 16. Then came plaintiff's Civil Appeal No. 1 of 1995. Lower Appellate Court considered the question, whether plaintiff is owner in possession of property in dispute and whether defendants have raised any construction over disputed land for which the plaintiff is entitled to seek demolition. Lower Appellate Court has examined in detail the evidence so as to record a finding that disputed property has been shown to be owned by plaintiff. Having said so, it has then observed that even if defendants have possession over land in dispute at the time of filing suit, the said possession was unauthorized, therefore, plaintiff is entitled for possession of disputed property and construction raised by defendants is liable for demolition, being wholly unauthorized. Having said so, it has then observed that even if defendants have possession over land in dispute at the time of filing suit, the said possession was unauthorized, therefore, plaintiff is entitled for possession of disputed property and construction raised by defendants is liable for demolition, being wholly unauthorized. The conclusion drawn by Lower Appellate Court in para 20 and 21 of the judgment reads as under: ^^20- --- vr% ;fn ;g eku Hkh fy;k tk;s fd okn izLrqr djus ds le; egkohj dk gh dCtk Fkk rks Hkh mls fdlh izdkj dk LoRo izkIr ugh gksrk gSA mldh fLFkfr ,d vfrdzked dh gSA tehnkjh foukl vf/kfu;e izHkko esa vkus ds mijkUr fookfnr Hkwfe oknh ds firk ds cStw dks /kkjk&9 ds vuqlkj O;ofLFkr gks x;h FkhA cStw dh e`R;q o"kZ 1956 esa gqbZA vr% mlds mijkUr oknh gh fookfnr Hkwfe dk Lokeh ekuk tk;sxkA 21- bu ifjfLFkfr;ksa esa oknh fookfnr lEifRr dk vkf/kiR; ikus dk vf/kdkjh gSA pwafd izfroknhx.k dk fuekZ.k dk;Z fookfnr lEifRr ij gSA vkSj mUgksusa fcuk fdlh vf/kdkj ds fuekZ.k fd;k gSA ftls oknh /oLr djks ikus dk vf/kdkjh gsA vihy Lohdkj fd;s tk;s ;ksX; gSA^^ English Translation by the Court: "20. ...hence, if it is assumed that Mahavir alone was in possession at the time of filing of the suit, even then he does not gain any sort of title. His status is of a trespasser. After enforcement of Zamindari Abolition Act, the disputed land came to be settled under section 9 with Baiju, father of the plaintiff. Baiju died in the year 1956. Hence, after him, the plaintiff alone shall be treated as owner of the disputed land. 21. In these circumstances, the plaintiff is entitled to get possession over the disputed property. Since the construction raised by the defendants exists on the disputed property and they have without any entitlement proceeded with the construction, for demolition whereof the plaintiff is entitled, the appeal deserves to be allowed." 17. I find that Lower Appellate Court has committed a manifest error and has not considered the issues in the context of plaintiff's case and relief sought by him. There was no suit for possession instituted by plaintiff. He never pleaded that he was owner of property in dispute and having wrongfully been dispossessed, possession should be restored to him. I find that Lower Appellate Court has committed a manifest error and has not considered the issues in the context of plaintiff's case and relief sought by him. There was no suit for possession instituted by plaintiff. He never pleaded that he was owner of property in dispute and having wrongfully been dispossessed, possession should be restored to him. The suit was for injunction clearly stating that plaintiff was in possession of disputed property at the time of filing plaint and has been threatened by defendants for dispossession and wrongful construction, therefore, defendants should be restrained from doing so. Subsequently, he got suit amended during appeal on the allegation that during pendency, constructions have been raised hence the same should be directed to be removed. 18. If defendants were already in possession, then the suit, as instituted by plaintiff, could not have been decreed since it was for injunction and not for delivery of possession or restoration of possession. If the suit for restoration of possession would have been filed, it would have been necessary for the plaintiff to assert specifically in the plaint, when he was dispossessed so as to consider whether the suit for restoration for possession is within the period of limitation or not. The period of limitation for the purpose of adverse possession is different and period of limitation for restoration of possession is different. These are two different aspects. Even if a defendant may not be able to prove the case of maturity of his title over disputed land by applying principle of adverse possession, still one may be able to show that a suit for restoration of possession has not been filed within period of limitation prescribed therefor. In the present case, there was no averment in the entire plaint, by plaintiff, as to when he was dispossessed. Lower Appellate Court has not found anywhere, as a matter of fact, that plaintiff was in possession of property in dispute at the time of filing plaint. The finding otherwise recorded by Trial Court have also not been found incorrect and there is no reversal of these findings. Lower Appellate Court has not found anywhere, as a matter of fact, that plaintiff was in possession of property in dispute at the time of filing plaint. The finding otherwise recorded by Trial Court have also not been found incorrect and there is no reversal of these findings. Lower appellate Court has proceeded to consider the matter in a very strange manner by observing that since defendants have failed to prove that they have got title matured by virtue of adverse possession, since period of 12 years has not expired, therefore, even if they are in possession, since ownership has been proved by plaintiff, he is entitled for restoration of possession on the basis of title. 19. Lower Appellate Court has completely misdirected itself by failing to consider that there was no suit for restoration of possession instituted by plaintiff. Unless a specific finding could have been given as to when plaintiff was dispossessed and whether it was during the pendency of suit, on mere title, suit for injunction and demolition on disputed property ought not to have been decreed. Lower Appellate Court, in my view, has not considered the entire matter in correct perspective. The matter requires reconsideration. 20. In the result, the appeal is allowed. The judgment and decree dated 13.2.1998 passed by Lower Appellate Court is hereby set aside. Civil Appeal No. 1 of 1995 is restored to its original number. Lower Appellate Court is directed to re-consider the appeal and decide it afresh expeditiously. 21. No costs.