Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 709 (ORI)

Satyabhama Behura v. Rajesh Kumar Agarwal

2015-12-18

D.DASH

body2015
JUDGMENT : D. Dash, J. 1. This appeal has been filed calling in question the judgment passed by the learned 2nd Additional District Judge, Cuttack in RFA No. 83 of 2011. The respondent No. 1 as the plaintiff had filed Civil Suit (I) No. 571 of 2006, a suit for declaration of her right, title and interest over the suit land with further declaration that the sale deed bearing No. 2086 dated 3.6.2000 executed by Chandra Sekhar Mohapatra and his daughter Smt. Suprama Mishra in her favour in respect of Ac.0.011 decimals as valid in law, with further declaration that registered sale deed No. 2878 dated 11.8.2000, executed by the respondent-defendant No. 2 in favour of respondent-defendant No. 1 to be void and to have clothed no title upon the respondent No. 1, with further prayer to restrain the respondent-defendant No. 1 from making any sort of construction over the suit land by permanent injunction as also for mandatory injunction directing him to remove the boundary wall constructed over the suit land. The suit having been decreed granting all the reliefs as prayed for, the respondent No. 1 as the unsuccessful defendant had carried the appeal. The appeal has been allowed and the plaintiff has been non-suited. Thus, the appellant being the unsuccessful plaintiff has filed this appeal under Section 100 of the Code of Civil Procedure. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 2. Plaintiff's case is that land under suit plot No. 440 measuring an area of Ac.0.034 decimals which includes suit end extending to Ac.0.011 decimals originally belonged to Kalyani Patra, the defendant No. 2. The said land was sold by her to different purchasers including Chandra Sekhar Mohapatra son of Gopinath who being dead, his daughter Suprava was a party as defendant No. 3, now deleted. They had purchased Ac.0.017 decimals of land from defendant No. 2 who had delivered possession of the same to the purchaser Chandra Sekhar Mohapatra and his daughter who were thus in possession of the suit land and so also the other purchasers remained in possession of their respective purchased land. They had purchased Ac.0.017 decimals of land from defendant No. 2 who had delivered possession of the same to the purchaser Chandra Sekhar Mohapatra and his daughter who were thus in possession of the suit land and so also the other purchasers remained in possession of their respective purchased land. It is stated that Chandra Sekhar Mohapatra and his daughter sold Ac.0.011 decimals along with undisputed Ac.0.059 decimals from another plot to the plaintiff by virtue of registered sale deed No. 2056 dtd. 3.6.2000 in total measuring an area of Ac.0.070 decimals. The plaintiff had been delivered with the possession of the same and she claims to be in possession since the date of her purchase i.e. 3.6.2000 having right, title and interest. In the year 2001, the record of right in respect of Ac.0.011 decimals was issued in favour of the plaintiff and she has been paying the rent to the State. When the matter stood thus in the month of June 2006, defendant No. 1 created disturbance in her possession. So, a demarcation case was initiated and when notice was issued to defendant No. 1 although he did not appear yet constructed a boundary wall. It is stated that in the year 2006, defendant No. 2 had again sold Ac.0.008 decimals of land to defendant No. 1 and that is from out of the suit land measuring Ac.0.011 decimals by registered sale deed dated 11.8.2000. So taking advantage of such void sale deed wherein he was clothed with no right, title and interest in respect of the so-called purchased land, he created disturbance in the peaceful possession of the plaintiff. The said sale deed is challenged to be void on the face of the earlier sale deed in favour of the plaintiff as holding the field and it is also stated that defendant No. 1 has acquired no right, title and interest by virtue of the same and behind the back of the plaintiff he has mutated the said land in his favour which is non est in the eye of law! It is alleged that on 15.12.2006, as threat came from the side of the defendant No. 1 for construction of a building over the suit land, the suit had to be filed with the reliefs as claimed. 3. Defendant No. 1 appeared and contested the suit. It is alleged that on 15.12.2006, as threat came from the side of the defendant No. 1 for construction of a building over the suit land, the suit had to be filed with the reliefs as claimed. 3. Defendant No. 1 appeared and contested the suit. In his written statement besides taking the technical pleas to non-suit the plaintiff such as the lack of cause of action; suit being barred by limitation; suit being bad for non-joinder and misjoinder of the parties; suit being undervalued and bad for vague and indefinite description of the suit land, it is also asserted that the suit is liable to be dismissed being barred by the provisions of Section 34 of the Specific Relief Act. Coming to the facts, it is his case that he has boundary wall on all sides of the land and it was in existence at the time of the purchase with a gate on the northern side. He claims to have purchased the suit land by registered sale deed dated 11.8.2000 and that is land measuring Ac.0.085 decimals of land under five plots and again has purchased by registered sale deed dated 14.8.2000 measuring Ac.0.102 decimals from two plots. He claims to be in possession of all these properties since the date of his purchase having been given delivery of possession of the same. He specifically denied to have purchased Ac.0.008 decimals of land from out of the suit land which was earlier purchased by the plaintiff. It is his case that after purchase he having applied for mutation, the same has been duly allowed and accordingly, the ROR has been prepared in his name and also he is paying the rent. According to him, the plaintiff by virtue of registered sale deed dated 3.6.2000 purchased Ac.0.011 decimals of land from plot No. 440 and Ac.0.059 decimals of land from plot No. 441 which comes in total to Ac.0.070 decimals and that she purchased from Suprama Mishra who had purchased it from defendant No. 2 who is also his vendor. Suprama Mishra is said to have purchased by registered sale deed dated 25.4.1995 and it was a vacant land which the plaintiff purchased having no boundary. It is also his case that it has been specifically stated in the sale deed that the land has been left by the vendor being used as road. Suprama Mishra is said to have purchased by registered sale deed dated 25.4.1995 and it was a vacant land which the plaintiff purchased having no boundary. It is also his case that it has been specifically stated in the sale deed that the land has been left by the vendor being used as road. It is stated that thereafter he purchased the house and land from defendant No. 2 under two registered sale deeds and his purchased land was surrounded by wall with all sides having a gate on the northern side. He admits that in the meantime the plaintiff constructed a residential house over her purchased land but that is without the approval from the local authorities. 4. The trial court in view of above pleadings framed in total 14 issues. In answering the pertinent issues regarding the entitlement of the plaintiff for declaration of her right, title and interest over the suit land, the sale deeds executed by Chandra Sekahar Mohapatra and his daughter to be invalid and also the tenability of the claim of declaration of the sale deed dated 11.8.2000 executed by defendant No. 2 in favour of defendant No. 1 as void and consequently, the mutation entries together with the challenge to the suit being barred by limitation and vagueness in description of the suit land, upon consideration of evidence on record in the backdrop of pleadings, the trial court has answered all those in favour of the plaintiffs and against the defendants. The other issues being ancillary issues have followed the same path. The unsuccessful defendant No. 1 having carried the appeal, the lower appellate court has affirmed the finding that the sale deed in favour of defendant No. 1 in respect of Ac. 0.008 decimals of land is void and it also held that the plaintiff has got right, title and interest over this land measuring Ac.0.008 decimals by virtue of the registered sale deed standing in her favour by virtue of registered sale deed Ext. 2. thereafter, on careful examination of the plaint averments it has been found that the plaintiff has admitted possession of the defendant No. 1 over that Ac. 0.008 decimals of land which is also seen from the Amin Commissioners report, Ext. 9 and the evidence of plaintiff examined as P.W.1. Accordingly, defendant No. 1's possession over the suit land has been held. 0.008 decimals of land which is also seen from the Amin Commissioners report, Ext. 9 and the evidence of plaintiff examined as P.W.1. Accordingly, defendant No. 1's possession over the suit land has been held. Next coming to the contention raised before it as regards the maintainability of the suit being hit by the provision of Section 34 of the Specific Relief Act, the conclusion has been that the suit is barred under provision of Section 34 of the Act and accordingly the plaintiff has been, non-suited on that sole ground in saying that inasmuch as by virtue of only declaration the plaintiff would not be able to recover possession from defendant No. 1. So the decree passed by the trial court in favour of the plaintiff has been set aside. 5. The appeal has been admitted on the following substantial questions of law- "i. Whether the relief of mandatory injunction, in the fact and circumstances of the case should have been treated as 'further relief within the meaning of the proviso to Section 34 of the Specific Relief Act? ii. Whether the suit was liable to be dismissed without any further opportunity to the plaintiff-appellant, to amend the plaint, so as to include a proper relief for recovery of possession? iii. Whether the judgment passed by the lower appellate court can be sustained when it has failed to formulate the points for determination under Order XLI rule 31 of the Code of Civil Procedure, 1908?" 6. It may be mentioned here that the defendant No. 1 has not come up with any cross objection/appeal questioning the current findings that his sale deed is void and that the plaintiff has the right, title and interest over the suit land on the strength of the purchase by registered sale deed Ext. 2. 7. It may be stated here that the plaintiff has also filed a petition under Order 6 Rule 17 read with Section 108 of the Code of Civil Procedure for amendment of the plaint for grant of leave for amending the plaint by way of insertion of the relief for recovery of possession of the suit land in her favour and it has been numbered as Misc. Case No. 138 of 2015. Case No. 138 of 2015. The prayer has been resisted by the respondent No. 1 by filing objection mainly on the following grounds:- "i. that the amendment as proposed would change the nature and character of the suit; ii. that the prayer sought to be introduced by proposed amendment is now barred by limitation by efflux of time as the defendant No. 1 has by now already acquired title by adverse possession; iii. that the second appeal having been admitted framing the substantial questions of law, for recording necessary answers to those; for disposal of the second appeal as a just decision, such amendment is unnecessary." 8. Another petition has also been filed by the defendant No. 1 labelling it to be one under Section 151 of the Code of Civil Procedure numbered as Misc. Case No. 464 of 2015 with the prayer that the prayer of the plaintiff for amendment of the plaint registered as Misc. Case No. 138 of 2015 be heard at first and upon its disposal, the second appeal be taken up for hearing and disposal. 9. At this juncture, when we glance at the substantial questions of law framed for being answered in the appeal, in my considered view the first one in the facts and circumstances stands for answer at the outset as the lower appellate court has dismissed the suit in refusing to grant the relief of recovery of possession on the ground that provisions of Section 34 of the Specific Relief Act stand as a bar. Now when the plaintiff has prayed also for grant of leave to- mend the plaint inserting the prayer for recovery of possession, that is resisted by the defendant No. 1 when he also prays for taking up that matter of amendment first. In fact this defendant No. 1 in the objection has been resisting the prayer for amendment of the plaint on one of the grounds that in view of substantial question of law already framed, such prayer is not necessary to be considered. I accept the same to the extent that its consideration would stand for necessary decision accordingly only upon the answer that would be recorded on the first substantial question of law. I accept the same to the extent that its consideration would stand for necessary decision accordingly only upon the answer that would be recorded on the first substantial question of law. In case the answer is given in affirmative, the need may not even arise for consideration of the prayer for amendment of plaint as advanced and its consideration would arise only after the answer to that question is recorded in the negative. 10. Learned counsel for the appellant submits that the view taken by the lower appellate court that the suit is barred under provision of Section 34 of the Specific Relief Act is erroneous and when there remains the prayer for permanent and mandatory injunction, the court was not without any power to modulate the relief instead of non-suiting the plaintiff on that ground. In support of his contention, he has placed reliance oh two decisions of this Court in case of Md. Aftabuddin Khan and others v. Smt. Chandan Bilasini and another, AIR 1977 Orissa 69 and Bivas Chandra Samanta v. Hjra Alias Madan Monan Biswal and others, AIR 2006 Orissa 1 : 2005 (I) OLR 866. Further he contends that for the suit the barred under Section 34 of the Specific Relief Act does not arrive. When the plaint there is an assertion that the possession is with the plaintiff though as a fact it is not, the court has all the power to direct the plaintiff to recover possession and the court had all the jurisdiction to do so and the lower appellate court has committed an error of jurisdiction in dismissing the suit of the plaintiff on that ground. 11. Learned counsel for the respondent No. 1 vehemently refutes the above said submission. According to him, when para-3 of the plaint, the plaintiff asserts to be in possession. In evidence, her husband clearly states that the defendant No. 1 who is in possession and that has been so found by the Survey Knowing Commissioner being deputed to inspect and measure the land. Therefore, he contends that in such a scenario the suit without the prayer for recovery of possession is only not maintainable and thus, the lower appellate court has rightly non-suited the plaintiff. In support of his submission, the following decisions have been cited:- "i. Mehar Chand Das v. Lal Babu Siddique and Ors., AIR 2007 SC 1499 ; ii. Therefore, he contends that in such a scenario the suit without the prayer for recovery of possession is only not maintainable and thus, the lower appellate court has rightly non-suited the plaintiff. In support of his submission, the following decisions have been cited:- "i. Mehar Chand Das v. Lal Babu Siddique and Ors., AIR 2007 SC 1499 ; ii. Ramji Rai and Anr. v. Jagdish Mallah (Dead) through L.Rs. and Anr., AIR 2007 SC 900 ; iii. Dr. Shehla Burvey and Ors. v. Syed Ali Mossa Raza and Ors., 2011 AIR SCW 2694; iv. Om Prakash and others v. Ram Kumar and others, (1991) 1 SCC 441 ; v. Union of India v. Ibrahim Uddin and another, (2012) 8 SCC 148 ; vi. Bachhaj Nahar v. Nilima Mandal and another, (2008) 17 SCC 491 ; vii. Nandkishore Lalbhai Mehta v. New Era Fabrics Private Limited and others, (2015) 9 SCC 755 ." viii. Vinay Krishna v. Keshav Chandra and another, AIR 1993 SC 957 ; ix. Venkataraja and Ors. v. Vidyane Doureradjaperumal (D) Thr. LRs. and Ors., 2013 AIR SCW 3063; and x. Anathula Sudhakar v. P. Buchi Reddy (Dead) By LRs. and others, (2008) 4 SCC 594 ; 12. In order to appreciate the rival contentions, and further consider as regards the applicability of the ratios emerging from the decisions cited by the learned counsel for the parties, it is first felt the need to reproduce the provision-of section 34 of the Specific Relief Act. The same reads as under:- "34. and others, (2008) 4 SCC 594 ; 12. In order to appreciate the rival contentions, and further consider as regards the applicability of the ratios emerging from the decisions cited by the learned counsel for the parties, it is first felt the need to reproduce the provision-of section 34 of the Specific Relief Act. The same reads as under:- "34. Discretion of court as to declaration of status or right-Any person entitled to any legal character, or to any right as to any property, may institute a suit against any persons denying, or interested to deny, his title to such character or right, and the court may in its discretion made therein a declaration that he is so entitle, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so." The proviso reads that when there is no dispute as to the plaintiffs' legal character or right to the property, and the parties are properly arrayed, yet the court shall refuse to make any declaration in favour of the plaintiff, where being able to seek further relief than a mere declaration, the plaintiff omits to do so. The object of the proviso is to avoid multiplicity of suits and to prevent a person getting a declaration in one suit and immediately after, seeking the remedy, already available, in another. The proviso to section 34 is imperative and makes its obligatory not to make any declaration in cases where the plaintiff being able to seek further relief omits to do so. But the objection into the maintainability of the suit on that ground that he does not seek consequential relief must be taken with promptitude. The word "further relief", in section 34 of the Act refers to some relief to which the plaintiff will be necessarily entitled to on the basis of the title declared. This 'further relief is distinguishable from 'other relief. Then further relief is one which would complete the claim of the plaintiff and not lead to multiplicity of suits. 13. (i) In Meher Chand Das (supra), the Hon'ble Apex Court held that suit for mere declaration without claim of relief of possession to be untenable. This 'further relief is distinguishable from 'other relief. Then further relief is one which would complete the claim of the plaintiff and not lead to multiplicity of suits. 13. (i) In Meher Chand Das (supra), the Hon'ble Apex Court held that suit for mere declaration without claim of relief of possession to be untenable. In that case, it stood admitted that the appellant was treated to be a tenant by the respondents and the suit property according to the respondents was a tenanted one. The possession of the appellant, therefore was denied and disputed when also a prior suit for eviction filed him, was dismissed by the civil court. The court relied upon the ratio decided in the case of Vinay Krishna (supra) which was rendered on the premises that if the plaintiff had been in possession of the suit property then a suit for mere declaration is maintainable: the logical corollary whereof would be that if the plaintiff is not in possession, a suit for mere declaration would not be maintainable. The High Court was thus held to have committed manifest error in not relying on that decision. (ii) In the case of Ramji Rai and another (supra), it was a suit for permanent injunction where plaintiffs failed to prove that they are in possession. So the suit was dismissed only on that ground the case of Venkataraja and others (supra), it was declaratory suit without consequential relief. The declaration sought for was that the plaintiff is the owner of the suit property and the sale made by the defendant was null and void. However, the possession of the suit property remained with the tenant who were parties to the suit. The plaintiff could have claimed possession from the tenant. Instead of doing so he had filed the simple suit for declaration. So the suit was held to be not maintainable as it defeats the provisions of section 34 of the Specific Relief Act and the provision of order 2, rule 2 of the Code of Civil Procedure. (iii) In the case of Dr. Shehla Burney and others (supra), the suit being for possession against the illegal occupants of suit property, however, no relief was claimed against the transferee of suit property, from the illegal occupants of the suit property. In view of said deficiency, the suit was dismissed. (iii) In the case of Dr. Shehla Burney and others (supra), the suit being for possession against the illegal occupants of suit property, however, no relief was claimed against the transferee of suit property, from the illegal occupants of the suit property. In view of said deficiency, the suit was dismissed. (iv) The Hon'ble Apex Court in case of Om Prakash and others (supra) has held that the relief not claimed cannot be granted especially if it affects the right of the interested party and the plaintiff could not base a new cause of action on plea of defendant unless he amends the plaint or files separate proceedings. In that case, it has been held that a party cannot be granted a relief which is not claimed. If the circumstances of the case are such that the granting of such relief would result in serious prejudice to the interested party and deprive him of the valuable rights under the statute. So, in the action by the landlord, the tenant is expected to defend only the claim made against him and if a cause of action arises to the landlord on the basis of the plea set up by the tenant, in such action, it is necessary that the landlord seeks to enforce that cause of action in the same proceeding by suit at the amendment or by separate proceedings to entitle the landlord to the relief on the basis of such cause of action. (v) In case of Union of India (supra), the Court was considering the maintainability of the suit wherein no consequential relief was sought for. The relief sought for was declaration of title of ownership of property simpliciter when the plaintiff was not in possession. Though admittedly the plaintiff was not in possession on the date of the suit, he did not ask for restoration of possession or any other consequential relief. The Hon'ble Court held that Section 34 of the Act provides that Courts have the discretion as to declaration of status or right. However, it carves out an exception that a court shall not make any such declaration of status or right where the complainant, being able to seek further relief than a mere declaration of title, omits to do so. However, it carves out an exception that a court shall not make any such declaration of status or right where the complainant, being able to seek further relief than a mere declaration of title, omits to do so. Therefore, in the facts and circumstances of said case in the absence of either claim of any relief of restoration of possession or any other consequential relief, the suit was held to be barred by the provisions of Section 34 of the Act. (vi) In case of Bachhaj Nahar (supra), it has been held that when there is no prayer for a particular relief and no pleadings to support such a relief, and when the defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. So in doing justice to one party causing injustice to other and he being the casualty has been deprecated. (viii) In case of Nandkishore Lalbhai Mehta (supra), the question was whether any relief can be granted, when the defendant had no opportunity to show that the proposed relief by the court could not be granted. So it has been held that when there is no prayer or pleading to support such a relief, and as the defendant had no opportunity to resist or oppose such a relief, the court should not grant such a relief as it would lead to miscarriage of justice. 14. In case of Md. Aftabuddin Khan and others (supra), this Court found the defect and also held that amendment of the plaint would have been more appropriate but then it was held that the court had the jurisdiction to do what has been done in allowing the relief of recovery of possession. Similarly, in case of Bivas Chandra Samanta (supra) in the absence of prayer for recovery of possession in that suit where the prayer for permanent injunction was very much there along with the prayer for declaration of title, the court granted that relief. 15. Similarly, in case of Bivas Chandra Samanta (supra) in the absence of prayer for recovery of possession in that suit where the prayer for permanent injunction was very much there along with the prayer for declaration of title, the court granted that relief. 15. Adverting to the fact situation of the present case, it is seen that here the plaintiff has sought for the relief of declaration of right, title and interest over the suit schedule property, the relief of declaration that the sale deed executed by Chandra Sekhar Mohapatra and his daughter Smt. Suprama Mishra in her favour as valid; with further declaration that the sale deed executed by the defendant No. 2 in favour of defendant No. 1 to be void and consequential declaration is that the mutation carried out in the name of defendant No. 1 to be invalid. More importantly, the plaintiff had prayed for permanent injunction restraining the defendant No. 1 from making any construction and as also for mandatory injunction for removal of boundary wall from the suit land. No doubt in the instant case specifically no prayer has been sought for recovery of possession. At this stage, it will not be out of place to also discuss two more decisions of this Court in case of Chennaru Naghbhusan Rao v. M. Rama Rao and others, AIR 1992 Orissa 76 and in case of Chandra Sekhar Sahoo and others v. Chandrasekhar Das arid others, 2000 (II) OLR 128. In the former one it has been finally held that though the plaintiff has not asked for recovery of possession in the prayer when the plaint read as a whole goes to show the desire of removal of the unauthorized construction and the land put back to the plaintiff possession, it is permissible for the court to grant the relief of recovery possession Which would have been made as a prayer in the suit yet not having been made in view of the evidence Jed before the court in the suit as there remains no doubt that the defendant had known clearly the plaintiffs desire to have recovery of the land in question. So it was held that the question of defendant to be suffering in any way if such relief is granted does not arise and he does not get it as a surprise since both parties have led evidence on the score of their respective possession and title. So saying it has been held that such recovery of possession can be brought within the expression of the other relief as contained under Order 7 Rule 7 of the Code of Civil Procedure and thus there remains the competency on the part of the court to grant such a relief even though there is no specific prayer for such a relief. In the latter case, this Court has taken the prayer for confirmation of possession to be a prayer of recovery of possession when it was found that the plaintiff was not in possession and it has been held that the court can mould the relief keeping in view the facts and circumstances of the case and merely because there is no specific prayer for recovery of possession, the court would not be helpless to direct for recovery of possession where the facts and circumstances of the particular case so warranted. At this moment, let us also turn the attention to the decision in case of Vinay Krishna (supra). That was a suit of declaration of share in the property. The plaintiff was not in exclusive possession of the property because two other persons and also tenants were in occupation. So failure of the plaintiff to claim the relief of possession was held in support of legitimate exercise of discretion of the Court in refusing to grant relief of declaration. In that very case, the decision of this Court in case of Md. Aftabuddin Khan and others (supra) has taken into consideration and has been distinguished. In paras 13 and 15 of the judgment, for the above reason of distinguishing facts the decision of this court was not followed. It has been held to have no application to the facts and circumstances of the said case for the simple reason that therein it was found that no injustice has been caused to the defendants by not requiring the plaintiff to make a formal application for amendment of the plaint. It has been held to have no application to the facts and circumstances of the said case for the simple reason that therein it was found that no injustice has been caused to the defendants by not requiring the plaintiff to make a formal application for amendment of the plaint. However, in the case in hand before the Apex Court, it was found that two defendants as well as other tenants were in possession and one of those two defendants was in possession of part of the property on his own right and the other one had no right or title but in possession. So in order to pass a decree for possession in respect of the portion of suit property in possession of that defendant without right, title, determination felt necessary whether both the defendants were entitled to remain in possession. Thereafter, it was held that it can only be done after suitable amendment of the plaint and thus it has been held that the suit as laid to be barred. In case of Venkataraja and others (supra), the suit was a declaratory one without consequential relief. Suit property was in possession of tenants but the plaintiff had not claimed possession from tenants though he could have. Therefore, in such factual settings, the suit has been held as not maintainable. In case of Anathula Sudhakar (supra), the Apex Court, the suit was permanent injunction simpliciter. It was considering a number of decisions of the Apex Court, the position has been summarized as under:- "(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case." The case in hand is not a suit for injunction simpliciter. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case." The case in hand is not a suit for injunction simpliciter. Here the question is as to whether when the prayer for mandatory and permanent injunction are there along with the declaration, can the court treat the prayer for mandatory and permanent injunction as further reliefs. 16. Keeping in view the authoritative pronouncements as referred to above let us have a look at the plaint. In para-5 of the plaint, the averments are as follows:- "5. That when the position was as such, in June 2006, the defendant No. 1 disturbed the peaceful possession of the plaintiff over the suit Ac.0.011 decimals. So the plaintiff filed the demarcation case No. 173-2006 before the Tahasildar, Cuttack. Though notice was issued to the defendant No. 1 several times he did not appear. But constructed a boundary wall." Para-10 of the plaint stating about the cause of action for the suit reads as under:- "10. That the cause of action for the suit arose on 11.08.2000 when the defendant No. 2 executed the illegal sale deed, again in Mutation Case No. 335/2001 when the Defendant No. 1 managed to get mutation R.O.R. again in June 2006 when the Defendant No. 1 made forcible construction and on 15.12.2006 when he gave out in the locality to make further construction over the suit land." The reliefs as prayed for by the plaintiff in the plaint read as under:- "(i) Let a decree be passed declaring the plaintiff's right, title and interest over the suit land. (ii) Let it be further declared that sale deed No. 2086 dated 3.6.2000 executed by Chandra Sekhar Mohapatra and her daughter Defendant No. 3 in favour of the plaintiff in respect of Ac.0.011 decimals is valid in law. (iii) Let the R.S.D. No. 2878 dated 11.8.2000 executed by the defendant No. 2 in favour of the defendant No. 1 be set-aside being void in law as Defendant No. 2 has no salable right to execute such sale deed. (iv) Let it be further declared that the Mutation R.O.R. and rent receipt created by the Defendant No. 1 in connection with the suit land are not. binding on the plaintiff. (iv) Let it be further declared that the Mutation R.O.R. and rent receipt created by the Defendant No. 1 in connection with the suit land are not. binding on the plaintiff. (v) Let a decree of permanent injunction be passed against the defendant No. 1 restraining him from making any construction whatsoever on the suit land. (vi) Let an ad interim injunction be passed against the defendant No. 1 restraining him from making any construction over the suit land during the suit period. (vii) Let mandatory injunction be passed against the defendant No. 1 for removal of boundary wall from the suit land failing which the same should be demolished in the process of law. (viii) In case the defendant No. 1 makes any forcible construction over the suit land during the pendency of the suit a decree of mandatory injunction be passed against him for removal of construction from the suit land failing which the same may be demolished in the process of law. (ix) Let any other decree/decrees as this Hon'ble court deems fit and proper under the circumstances be passed in favour of the plaintiff. (x) Let the cost of the suit be awarded in favour of the plaintiff." The findings of the learned Civil Judge (Sr. Divn.) in para-10 of the judgment run as under:- "xxxx. Therefore, by no stretch of imagination, it can be said that the claim of the plaintiff is barred by limitation as prescribed period of 12 years was not over from the date of dispossession. xxxx Ext. 5 which has also been marked as Ext. A clearly proves that defendant No. 1 has purchased Ac.0.008 decimals of land from plot No. 440 which was earlier purchased by the plaintiff. Therefore, the sale deed of defendant No. 1 vide Ext. 5 and Ext. A and the mutation done in favour of defendant No. 1 Ext. D so far as the suit plot No. 440 measuring Ac.0.008 decimals is concerned is liable to be declared as illegal void and no valid title had passed under it and the plaintiff which is prior in time (sic) is better in law and therefore all the issues are answered in favour of the plaintiff and against the defendants. D so far as the suit plot No. 440 measuring Ac.0.008 decimals is concerned is liable to be declared as illegal void and no valid title had passed under it and the plaintiff which is prior in time (sic) is better in law and therefore all the issues are answered in favour of the plaintiff and against the defendants. Next in para-11 of the judgment it has been held that the plaintiff has the cause of action to file the suit and therefore, the defendant No. 1 has been directed to remove the boundary wall construction made by him over the suit land given liberty to the plaintiff in case of disobedience to take recourse through court. The lower appellate court has taken a view that when the plaintiff has admitted the possession of defendant No. 1 and for that reason has sought for mandatory injunction in the absence of prayer for recovery of possession, the suit for all the reliefs as prayed for as led is barred by provisions of Section 34 of the Specific Relief Act." 17. In the present case, though the plaintiff has not specifically asked for the recovery of possession in the prayer, the plaint read as a whole particularly the pleadings referred to above leaves no room to doubt that the plaintiff desired that unauthorized construction be removed and the land be put back to her possession in the former condition and the parties were quite aware of their respective cases. Therefore, such a prayer for recovery of possession which could have been made in the suit, but having not been made in view of evidence led before this Court, in the suit, there is no iota of doubt that the defendant No. 1 had known clearly that the plaintiff desired to have the recovery of land and the defendant would not in any way suffer if such a relief is granted nor he will in any way be prejudicially affected. Moreover, in the facts and circumstances of the case such relief of recovery of possession cannot be held for a moment that such relief is a larger relief than those claimed by the plaintiff. The relief of recovery of possession is thus found to be founded on pleadings made by the parties. The parties knew that the matter in question was involved in the trial and they led evidence about it. The relief of recovery of possession is thus found to be founded on pleadings made by the parties. The parties knew that the matter in question was involved in the trial and they led evidence about it. In the instance case it can never be said that the parties did not know that the matter was in issue in the trial and defendant No. 1 is seen to have in particular led evidence in respect of it. When he has very much claimed to have been in possession on the basis of his sale deed, the same has been held to be invalid by concurrent finding of the courts below. Thus, here in the case the recovery of possession squarely falls well within the expression of other relief as contained under Order 7 Rule 7 of the Code of Civil Procedure and the court is competent to grant such relief to the plaintiff even though there is no specific prayer for such relief in the prayer portion of the plaint. 18. For the aforesaid discussions and reasons, this Court is constraint to hold that the view taken by the lower appellate court is unsustainable and as such is liable to be set aside, ft was well within its competence while concurring with the findings of the trial court on all other issues to pass a decree for recovery of possession with the aid of the provision of Order 7 Rule 7 of the Code of Civil Procedure. The substantial questions of law as framed at para-6(i) is accordingly answered and in that view of the matter, the other substantial questions of law do not survive for further consideration and so as to be answered. 19. For the aforesaid, the prayer for amendment of the plaint vide Misc. Case No. 138 of 2015 filed by the appellant becomes redundant and consequentially Misc. Case No. 438 of 2015 filed by respondent No. 1 does no more survive. In the result, the second appeal stands allowed. The judgment and decree passed by the lower appellate court are set aside. The suit is decreed as under:- "(i) the sale deed dated 3.6.2000 executed by Chandra Sekhar Mohapatra in favour of the plaintiff in respect of Ac.0.011 decimals of land from plot No. 440 in mouza Dakhin Tulasipur under marked Ext. The judgment and decree passed by the lower appellate court are set aside. The suit is decreed as under:- "(i) the sale deed dated 3.6.2000 executed by Chandra Sekhar Mohapatra in favour of the plaintiff in respect of Ac.0.011 decimals of land from plot No. 440 in mouza Dakhin Tulasipur under marked Ext. 2 is declared as legal and valid and as such the right/title and interest of the plaintiff over the said suit land is hereby declared and she is held to be entitled to get the recovery of possession of the said land from defendant No. 1; (ii) The sale deed dated 11.8.2000 executed by defendant No. 2 in favour of defendant No. 1 in respect of land under plot No. 440 measuring Ac.0.008 decimals under marked as Ext. 5 equal to Ext. A is declared as illegal and void and consequently the mutation in the name of respondent No. 1 in respect of that land vide Ext. D is declared illegal; and (iii) Mandatory injunction is issued against defendant No. 1 for removal of the boundary, wall situated over the above plot of land and to deliver vacant possession of the said land within three months hence and in case of failure, the plaintiff is at liberty to get the removal of the said boundary wall or any other construction done at the cost to be paid by defendant No. 1 and recover vacant possession of the said land through the process of the court by initiating appropriate proceeding. The defendant No. 1 is further permanently restrained from creating any disturbance in the peaceful possession of the plaintiff." In the facts and circumstances of the case, there would however be no order as to cost.