JUDGMENT Hon’ble Sudhir Agarwal, J.—This appeal under Section 100 of CPC has arisen from the judgment and decree dated 21.4.1976 passed by Shri S.K. Mishra, II nd Additional District Judge, Jalaun at Orai whereby it has reversed the judgment and decree dated 22.12.1973 passed by Munsif, Orai in O.S. No. 254 of 1970. 2. The plaintiff Mohd. Azim instituted the aforesaid original suit seeking a permanent injunction against sole defendant Mohd. Shafi restraining him from raising any construction or otherwise interfering in the house and ‘Khandhar’ detailed in the map appended to the plaint which belongs to the plaintiff. The plaint case set up by the plaintiff-respondent was that the plaintiff is owner of the disputed premises which was purchased by the plaintiff’s father Hafiz Ahmad Ullah Khan vide sale-deed dated 12.1.1940 registered on 13.1.1940 and since then the plaintiff’s father and thereafter plaintiff is in possession thereof. After the death of plaintiff’s father, the disputed property was partitioned between plaintiff and his brother on 22.3.1969 whereupon the house and other land shown as Aa, Ba, Sa, Da, Ya, Ra, La, Ha, Na came to the share of the plaintiff and since then he is owner and in possession thereof. The plaintiff’s father got a map sanctioned from competent local authority on 17.5.1953 but could not raise any construction due to scarily apart. The defendant who was posted as Registrar Kanoongo Tehsil Conch, having influence in the collectorate started construction on the north of the plaintiff’s house and also commenced digging his house so as to creating obstruction in the possession of the plaintiff and despite requests continued to create obstruction which has recently been stopped by him. However, he may again start his illegal activities and therefore the aforesaid suit was filed. 3. In the written statement filed by defendant-appellant, it was pleaded that he became owner of the residential house through a gift executed by Smt. Dhura, who also transferred possession of all the appurtenant land lying in front of the said residential house. There was no ‘Baithak’ on the disputed land and it was throughout ‘Parti’ land. In the north of the house shop of Hussain Bax existing possession whereof was taken by defendant from Zamindar Smt. Raj Kunwar after paying ‘nazarana’ on 25.10.1951. There was no ‘Baithak’ on the disputed land and it was throughout ‘Parti’ land. In the north of the house shop of Hussain Bax existing possession whereof was taken by defendant from Zamindar Smt. Raj Kunwar after paying ‘nazarana’ on 25.10.1951. The defendant’’s son also took ‘Parti’ land (lying on the south of the house and shop of Abdul) on 5.5.1959 by paying ‘nazarana’ to Zamindar. It was pleaded that the plaintiff’s father was never in possession of the disputed land within 12 years of the suit and defendant was in adverse possession thereof. He also pleaded that in batwara in 1896 some Baheliyas were having house and were enjoying the status of Riyayas and after this they left their houses which became ‘Khandhar’ Parti land and Zamindar got the land back according to Wajibul Arz and become owner and in possession of the house of Baheliyas. The defendant obtained ‘Ijazatnama’ from Zamindar in order to avoid any future trouble. Defendant son obtained sale-deed of the disputed land from the sons of Blwant Baheliya on 8.7.1969 and since then defendant became complete owner and in possession of the disputed land. The trial Court formulated following 5 issues. (i) Whether plaintiff is owner of disputed property marked by letters Aa, Ba, Sa, Da in the plaint map? (ii) Whether plaintiff is in possession of land in suit? If not its effect? (iii) Whether suit is barred by Articles 64 and 65 of Limitation Act? (iv) Whether defendant’s son Sri Fazal Haq is owner of disputed property by virtue of sale-deed as alleged? (v) To what relief, if any, is the plaintiff entitled? 4. Issue Nos. 1, 2 and 4 were taken together. Issue Nos. 1 and 2 were answered against plaintiff and issue Nos. 3 and 4 were answered against defendant. Since issue Nos. 1 and 2 were answered against plaintiff holding that he has no title or possession over the disputed property. The Trial Court held that the suit was barred by limitation and issue No. 3 was answered accordingly against plaintiff. In the result, the suit was dismissed vide judgment and decree dated 22.12.1973. 5. The plaintiff preferred Civil Appeal No. 9 of 1974 which came to be decided by II nd Additional District Judge, Jalaun at Orai vide judgment and decree dated 21.4.1976. In the result, the suit was dismissed vide judgment and decree dated 22.12.1973. 5. The plaintiff preferred Civil Appeal No. 9 of 1974 which came to be decided by II nd Additional District Judge, Jalaun at Orai vide judgment and decree dated 21.4.1976. The lower appellate Court held that the sale-deed’s exhibit 2 and was executed on 1940-60 respectively. To prove the title of plaintiff and the boundaries of the premises transferred therein also taly with the boundary of disputed ‘Khandhar’. It also held that the defendant failed to prove title of Balwant Baheliya or any of his other predecessors. It also held that defendant during tenancy of the suit has raised construction thereon. The Trial Court findings were ultimately reversed. The appeal was allowed and the suit of the plaintiff was decreed in the following manner. “Appeal is allowed with costs. The judgment and decree of the lower Court is set aside. The suit of the plaintiff-appellant for permanent injunction as prayed in th plaint is and stands decreed with costs throughout. The plaint map, paper No. 3-Ka-1/4 shall form part of the decree. Defendant-respondent may, however, remove his illegal construction which he has made during the pendency of the suit. In default, plaintiff-appellant shall have right to take away that ‘Malwa’. Plaintiff-appellant shall allow the defendant to remove his illegal constructions and ‘Malwa’ from the disputed property.” 6. There was another original suit No. 242 of 1973 in respect to plot No. 1123 and its some plot appurtenant to the house and plot No. 1122 in which sale-deed dated 8.7.1969 registered on 29.7.1969 was challenged and declaration was sought that it should be declared as sham and illegal document and cancel the same. That suit was also dismissed by the trial Court whereagainst the FAFO No. 420 of 1981 came before this Court and both these appeals were heard together and decided vide judgment dated 29.9.1983. The operative portion of the judgment reads as under. “I allow both the appeals and set aside the judgments and decree and the order of the Courts below. The offer made by Mohd. Shafi, defendant-appellant, in the second appeal arising from suit No. 254 of 1970 of the Court of Munsif, Orai, is recorded. The same offer was and shall be deemed to have been made on behalf of both the contesting defendant-appellants, namely (1) Fazal Haq and (2) Mohd. The offer made by Mohd. Shafi, defendant-appellant, in the second appeal arising from suit No. 254 of 1970 of the Court of Munsif, Orai, is recorded. The same offer was and shall be deemed to have been made on behalf of both the contesting defendant-appellants, namely (1) Fazal Haq and (2) Mohd. Shafi in the First Appeal From Order arising from Suit No. 242 of 1973 and is recorded in that case also. The two suits are consolidated. The amount of Rs. 5000/- shall be paid by the defendant -appellant Mohd. Shafi in Second Appeal No. 820 of 1976, or by his son Fazal Haq, defendant-appellant No. 1 in First Appeal From Order 420 of 1981, or by both, within three months from the date of this judgment for being paid to the legal representative of the plaintiff Mohd. Azim as substituted in this Court in Second Appeal No. 820 of 1976. The constructions already made by Mohd. Shafi or Fazal Haq along the Municipal road partly on plot No. 1123 and partly on plot No. 1115 shall not be demolished but neither of the parties shall raise any further constructions on the remaining open land of plots Nos. 1115 and 1123 and all the parties are restrained by a perpetual injunction to that effect, and the land shall be the joint Sehan Land and passage of the parties to and from the Municipal road, as owners of the houses of plots Nos. 1122, 1125 and 1124, with the reservation that according to the plaintiff’s case the house on plot No. 1124 was allotted on partition and belongs to his brother Mohd. Naeem, who is not a party to the present litigation. The sale-deed datd 12th July, 1969 executed by Ishwar Singh, defendant No. 3 and Kunwar Singh, defendant No. 4 in favour of Fazal Haq, defendant No. 1 shall be deemed to be ineffective as against the plaintiff to that extent. In the circumstances the parties shall bear their own costs throughout. In case the amount of Rs. 5000/- is not deposited within the time allowed, the plaintiffs may recover the same through the process of Court from the person or property of either of the defendants Mohd. Shafi or Fazal Haq, as a decree passed in Suit No. 242 of 1973 of the Court of Munsif, Orai.” 7. In case the amount of Rs. 5000/- is not deposited within the time allowed, the plaintiffs may recover the same through the process of Court from the person or property of either of the defendants Mohd. Shafi or Fazal Haq, as a decree passed in Suit No. 242 of 1973 of the Court of Munsif, Orai.” 7. The matter went to the Supreme Court in Civil Appeal No. 2698 of 1984 only against the aforesaid judgment of this Court so far as it has arisen from the O.S. No. 254 of 1970. The Apex Court observed that there are some aspect of which matter has not been properly dealt with by this Court and observed that this may be examined by this Court again and hence set aside the judgment dated 29.9.1983 in so far as it is related to O.S.No. 254 of 1970 and remanded the matter with the direction to allow the parties to adduce their evidence and amend their pleadings and thereafter decide the question indicated by this Court. Para-10 and 11 of the judgment reads as under: “There is considerable force in the submissions on behalf of the plaintiff that the directions of the High Court are not precise in regard to the area to which they applied. There is also force in the submission that the plaintiff having been found to be the owner in possession at the material time, he was unjustifiably not protected by an appropriate order which he had sought against the defendant in respect of the area encroached upon by the defendant during the pendency of the suit. This weighty argument deserves to be properly examined, but we do not wish to express any final view on their merits. In our opinion, these matters should be reconsidered by the High Court after hearing the parties. Accordingly, we set aside the judgment and decree under appeal in so far as they relate to Suit No. 254 of 1970 and direct the High Court to re-examine the questions involved and come to a fresh finding. It will be open to the High Court to allow the parties to adduce fresh evidence and amend their pleadings appropriately on the questions indicated by us. The appeal is allowed in the above terms. In the circumstances of this case, we make no order as to costs.” 8. It will be open to the High Court to allow the parties to adduce fresh evidence and amend their pleadings appropriately on the questions indicated by us. The appeal is allowed in the above terms. In the circumstances of this case, we make no order as to costs.” 8. From the judgment of the Apex Court one thing is clear that finding recorded by this Court that plaintiff was the owner in possession of the said property at the time of institution of suit and the defendant has encroached upon some part part of property owned by plaintiff during pendency of the proceedings in the Court below and constructed certain rooms have been affirmed. It is only with respect to the identity of area to which the aforesaid findings would apply and also proper relief to which plaintiff is entitled being owner in possession of property at the material time, the matter has been remanded to this Court. 9. This appeal, therefore, stood restored for examining the issues on which it was remanded by the Apex Court. 10. This Court heard this appeal on 7.12.2007 and formulated two issues on which the matter was remanded to the lower appellate Court to allow the parties to adduce evidence and thereafter record its finding and refer to the Court. These two issues were as under. “(i) The plaintiff respondent having been found to be owner in possession at the material time, the encroachment/construction so raised by the defendant-appellant is to be specified in respect to its extent by getting it properly measured with the help of Amin after notice to parties. (ii) After noticing the extent of the encroachment and the construction so complained the Court will ascertain its value of the present time keeping in mind the Government norms also, if any. “ 11. The lower appellate Court after remand on the aforesaid two issues has recorded its finding in its order dated 11.2.2008. In respect to issue No. 1, it has recorded its finding as under” bl rjg ls mijksDr foospuk ds vk/kkj ij eS bl fu"d"kZ ij igqprk gWw fd vehu dh fjiksVZ fnuakfdr 4&2&08 o 05&2&08 es fookfnr Hkwfe la[;k 1115 dk vfrdzfer Hkkx Mh0&1 ,p0th0lh0 gS vkSj bldk {ks=Qy 14-28 oxZehVj gSA okn fcUnq la[;k &1 rnuqlkj fu.khZr fd;k tkrk gSA 12. In respect to issue No. 2, it has said as under: mijksDr foospuk ds vk/kkj ij eS bl fu"d"kZ ij igqaprk gWw fd fookfnr Hkwfe 1115 ds vfrdzfer Hkkx ftls uD'kk vehu fnuakfdr 04&2&08 es Mh0&1 ,p0th0lh0 ls fn[kk;k x;k gSA og izfroknh i{k }kjk vfrdzfer Hkkx o Hkwfe 1115 dk va'k gS ds Hkwfe dk ewY;kadu 1]42]800-00 :i;s rFkk ml ij fLFkfr fuekZ.k dk ewY;akdu 57]120-00 :i;s nksuks feykdj dqy 1]99]920-00 :i;s gksrk gSA okn fcUnq la[;k 2 rnuqlkj fu.khZr fd;k tkrk gSA 13. Sri C.K. Rai, learned counsel for defendant-appellant has said that in the light of the subsequent event and the finding recorded by the lower appellate Court on remand and framing two issues by this Court, the substantial question of law which now require to be considered by this Court are as under: (I) Whether the lower appellate Court can decree the plaintiff’s suit No. 254 of 1970 for demolition also when there is no prayer for demolition of the construction in the plaint itself, nor Court fee for the demolition has been paid? (ii) Whether in absence of the Survey Commission by the Courts below decree for demolition of construction, passed by Lower Appellate Court in Civil Appeal No. 9 of 1974 is justified? (iii) Whether the judgment and decree passed by the Lower Appellate Court is vitiated due to non-compliance of the provisions contained in order 41 Rule 31 of Code of Civil Procedure? (iv) Whether the judgment and decree passed by the Lower Appellate Court is contrary to provisions of order 41 Rule 27 of the Code of Civil Procedure? (v) Whether the Lower Appellate Court can pass the decree for demolition of construction lies in plot No. 1123 without impleading the owners of plot No. 1123 as party in the suit? (vi) Whether the judgment and decree passed by the Lower Appellate Court is contrary to the law laid down by Hon’ble Apex Court in Shreepat v. Rajendra Prasad and others, JT 2000(7) SC 379? (vii) Whether the burden of proof can be shifted upon the defendant in place of plaintiff in a suit for permanent injunction filed by plaintiff? (VIII) Whether plaintiff respondent is entitled to decree of permanent injunction, in absence of title in the land in dispute in his favour? 14. (vii) Whether the burden of proof can be shifted upon the defendant in place of plaintiff in a suit for permanent injunction filed by plaintiff? (VIII) Whether plaintiff respondent is entitled to decree of permanent injunction, in absence of title in the land in dispute in his favour? 14. Now one of the aspects on which this appeal was remanded by the Apex Court is to find out the area to which a direction of high Court are applicable and the area which was encroached upon by the defendants during tenancy of the suit. The area encroached upon by the tenants during pendency of the suit has been shown in the report of Court amin which is given alongwith the Court below’s order dated 11.2.2008, wherein he has shown encroached part as D-1 to the H.G.C. in plot No. 1115 and the area of encroached part is 14.28 sq.mtr. 15. Sri Rai learned counsel for the appellant during course of argument could not advance any argument to point out any material irregularities in the aforesaid order of the Court below, answering the two issues formulated by this Court by its order dated 7.12.2007 and could not show anything so as not to treat aforesaid finding with respect to area of encroachment by the defendant-appellant as correct and final. In view thereof, the question No. 2 which has been sought to be formulated by Sri Rai, in my view, is rendered futile, for the reasons that identification of the land and its demarcation has now been done through Amin’s map report dated 4.2.2008 and 5.2.2008. 16. So far as question No. 3 is concerned, this Court finds that though separate points for determination have not been formulated by lower appellate Court, but in substance, it has discussed all the relevant issues in detail. More so, on this aspect judgment of the lower appellate Court has not been found erroneous by this Court earlier and in the order of remand of the Apex Court, the judgment of lower appellate Court has not been touched or found erroneous for non-observance of order 41 Rule 31 CPC, therefore, neither the appeallant at this stage can be allowed to assail the judgment of the lower appellate Court on the anvil of order 41 Rule 31 CPC nor even otherwise, I find any merit therein. 17. 17. So far as question No. 5 is concerned, I do not find that it has any application in the case in hand for the reason that plot No. 1123 was subject-matter of another suit No. 242 of 1973 in respect whereto the matter was already taken up to this Court and that judgment has attained finality, having not been taken the matter further to the Apex Court. 18. Now I take up issue Nos. 1, 6, 7 and 8 as noticed above together. 19. So far as title of plaintiff in respect of property in dispute is concerned, as already noticed this aspect of the matter has attained finality in favour of the plaintiff up to the Apex Court and ownership of plaintiff has been held proved. In fact, even encroachment by the defendant on certain part of disputed property has been found proved but this encroachment was not at the time of institution of suit and has been made during pendency of the suit. If the defendant would have been in possession of disputed property or some part thereof or had made encroachment thereupon on or before institution of suit No. 254 of 1970, the plaintiff could not have been granted relief unless the relief for demolition of construction was prayed by him, but encroachment and construction have seen the light of day during pendency of the suit, for the reason that appropriate interim protection was not made available to the plaintiff by the Court. The plaintiff is not under an obligation to add in the plaint further relief of demolition and removal of encroachment, but it is duty of the Court while granting injunction in the suit to ensure that any benefit gained by party during pendency of the suit should not come in the way of granting relief to the plaintiff. The Court has to look into situation as it was on the date of institution of the suit and for subsequent events specific relief is not required to be added in the plaint. The Court is amply empowered to take care of such situation. In fact, the argument in respect of the aforesaid issues sought to be raised by Sri Rai is nothing but the same which he had already lost up to the Apex Court and I do not find that he could be allowed to re-agitate the same at this stage. The Court is amply empowered to take care of such situation. In fact, the argument in respect of the aforesaid issues sought to be raised by Sri Rai is nothing but the same which he had already lost up to the Apex Court and I do not find that he could be allowed to re-agitate the same at this stage. When the matter has been remanded by the Apex Court by making specific observations which have to be complied by this Court. Now the only question before this Court which remains to be considered is whether defendant should be directed to remove his construction made during pendency of the suit and restore possession of encroached land to the plaintiff or plaintiff should be awarded some compensation instead of restoration of his possession. In my view, once plaintiff has proved his case regarding ownership and entitlement for restoration of his possession against wishes of plaintiff, it would be wholly unjust and inequitable to deny him appropriate adequate relief of restoration/of possession by converting into relief of compensation or damages as that would confer some premium upon the defendant also who is guilty of doing something illegal during pendency of the suit. 20. I am clearly of the view that this Court should not follow such a course since it would clearly be travesty of justice. It is a matter of common parlance that the cases are decided in the Indian Courts with extreme delay and many a times it takes generations when the matter is decided. Still the people have confidence that whenever matter shall be decided, they shall get justice. Common belief is that there may be a delay in granting justice but whenever it will come, justice will be pure, straight and complete. It is this confidence the people of country do not make much hue and cry for the long time taken by the Court in deciding the matters and continue to maintain complete confidence and faith in the system of dispensation of justice in India. If this Court in the garb of adjusting equity would award some kind of relief to a person who is guilty of doing something wrong. During pendency of the matter in the Court, it would directly mean that such a person will be benefited for the wrong or illegality he has done. If this Court in the garb of adjusting equity would award some kind of relief to a person who is guilty of doing something wrong. During pendency of the matter in the Court, it would directly mean that such a person will be benefited for the wrong or illegality he has done. Besides, the failure on the part of the Court in not providing interim protection to the true owner could also cause a permanent loss to such owner for no fault on his part. In other words, despite having everything in favour, such a person shall be made to suffer when comes to question of granting relief. It is also well-settled that Act of the Court shall prejudice none-irrespective of considerations which have prevailed with the Court at the time of granting interim relief. When the matter is decided finally, the relief is granted to litigating persons without compelling party to have his rights defeated against his wishes. In my view, there is no justification for molding the relief to which plaintiff is entitled having proven its ownership which may result in granting same relief to the defendant who is guilty of doing illegal encroachment and raising construction, during pendency of the suit. 21. The appeal, therefore, is bound to fail. In view of above, the appeal is dismissed and the impugned judgment of the lower appellate Court is hereby confirmed with the only clarification that the defendant appellant shall restore possession of part of the property which he has illegally encroached, as shown in the Amin’s map dated 4.2.2008 in respect of plot No. 1115 area 14.28 Sq Mtr marked as D-1 HGC and the said amin’s shall form part of the decree. Rest of the directions of the Court below are hereby confirmed. 22. Plaintiff -respondent shall be entitled to cost throughout. ——————