Bamboli, Tehsil Rajgarh, District Alwar v. Girraj Prasad S/o

Judgment

1. Girraj Prasad S/o Shri Jagannath, Since Deceased Through His Legal Representatives

Shiv Prasad S/o Shri Girraj Prasad, Resident Of Village Bamboli, Tehsil Ramgarh District Alwar

3. Chhagan Lal S/o Shri Girraj Prasad, Resident Of Village Bamboli, Tehsil Ramgarh District Alwar

4. Shanti Devi Widow Late Shri Girraj Prasad, Resident Of Village Bamboli, Tehsil Ramgarh District Alwar

5. Vijay S/o Late Sh. Girraj Prasad, Resident Of Village Bamboli, Tehsil Ramgarh District Alwar ----Respondents For Appellant(s) : Mr. Amit Dadhich For Respondent(s) : Mr. Anil Jain HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 28/05/2025 Order

1. Instant S.B. Civil Second Appeal is preferred by appellants- plaintiff aggrieved from Judgment dated 23.09.1995 in civil regular appeal No. 25/1993 (27/1993) passed by Learned Additional District Judge No. 1, Alwar, whereby an appeal preferred by respondents-defendants, was allowed and judgment and decree dated 24.07.1993 in civil suit No. 93/1993, passed by Learned Additional Munsif Magistrate No. 1 Alwar was set aside. [2025:RJ-JP:23717] (2 of 6) [CSA-413/1995]

2. Learned counsel for appellant-plaintiff while placing reliance upon grounds of appeal have submitted that appellant-plaintiffs had filed a civil suit for permanent injunction and after considering the evidence of parties, the Trial Court has decreed the suit in favor of appellant-plaintiff but Appellate Court without considering documents Exhibit 1 to Exhibit 4 has set aside the findings recorded by the Trial Court. He further submitted that in a suit for injunction, it is not necessary for the Plaintiffs to prove and establish title over the land. He further submitted that only on basis of possession, the plaintiffs are entitled for injunction and the Trial Court has rightly considered the documents and evidence, while passing a decree in favor of appellants which was unnecessarily interfered by the Appellate Court. He further referred the factum of compromise and submitted that the plaintiff has claimed injunction with respect to 12x12 yard land, and the interference by the Appellate Court is contrary to settled proposition of law.

3. Aforesaid contentions were opposed by learned counsel for respondents-defendants and he submitted that the plaintiffs were not in possession on date of institution of suit and without seeking a declaration and possession they cannot file a suit for injunction, as same is not maintainable under the law. He further submitted that even the plaintiffs have concealed the material fact about previous suit and a dispute about the possession. He further submitted that the findings recorded by the Appellate Court clearly shows the admission of plaintiff in para Nos. 8, 9, and 10 which indicate that the defendants were in possession on 18.06.1983. He further referred the Commissioner Report and submitted that [2025:RJ-JP:23717] (3 of 6) [CSA-413/1995] even the possession of plaintiff is not proved and he is not entitled to succeed in current second appeal.

4. Heard Learned counsel for the parties and perused the material available on record.

5. The brief facts of the case are that appellants-plaintiffs have filed a civil suit on the ground that they were in peaceful possession on a land measuring 12x12 yards at Village Bamboli, where their father was running a shop of goldsmith since 1952 but in 1992 the shop was destroyed due to heavy rains and plaintiffs had filed a civil suit against Village Panchayat as Village Panchayat has objected for construction of shop and the Court had granted stay in favour of plaintiffs. The plaintiffs threatened by defendants to dispossess on 18.06.1993 have filed a suit against the defendants-respondents. The defendants denied the averment made in plaint and filed a counterclaim for a prohibitory injunction against plaintiffs. The Trial Court has framed six issues. The plaintiffs have examined four witnesses and exhibited 11 documents whereas the defendants have examined three witnesses. The Trial court has decided issue nos. 1, 2 and 3 in favor of plaintiffs and passed a decree of prohibitory and mandatory injunction in favor of plaintiffs but dismissed the counterclaim of defendants.

6. On an appeal preferred by respondents-defendants, learned Additional District Judge No.1 Alwar has allowed the appeal and set aside the judgment and decree dated 24.07.1993 but affirmed the judgment of dismissal of counterclaim by the trial court. [2025:RJ-JP:23717] (4 of 6) [CSA-413/1995]

7. This appeal was admitted on 14.12.1995 but no substantial question of law was framed and ultimately same was framed on

06.11.2024 and these are as under:- (i) Whether the First Appellate Court has committed grave error in setting aside the judgment and decree passed by the Trial Court without considering the documents relating to compromise between the parties in a suit instituted prior to instant suit? (ii) Whether the Appellate Court has misread the evidence both documentary and oral while setting aside the well-reasoned judgment of Trial Court?

8. A perusal of plaint filed by present appellant on 07.07.1983 indicate that plaintiffs have already instituted a suit for declaration and injunction on basis of adverse possession against Village Panchayat. The plaintiffs have also mentioned that defendants have encroached after dispossessing the plaintiff. It is apparent that the suit is only filed for prohibitory injunction with ancillary relief of mandatory injunction.

9. A perusal of evidence of PW-1 reflects that on 18.06.1983, the defendants have encroached upon disputed land though a stay is operating in a previously filed suit. The admission also reflect that this plaintiffs have not filed any application to Panchayat when defendants were raising construction. The averment in plaint and admission in evidence by plaintiffs clearly shows that the plaintiffs were not in possession on date of institution of civil suit and there was no title with the plaintiffs. A previously instituted suit against Village Panchayat is also pending before a civil court and during pendency of said civil suit, current Civil Suit is instituted against defendants by the plaintiffs. The plaintiffs have [2025:RJ-JP:23717] (5 of 6) [CSA-413/1995] claimed their right on basis of long possession and particularly adverse possession. The witnesses of plaintiffs have admitted about existence of shop of plaintiffs which was run by father of plaintiffs, but the admission of plaintiffs clearly reflects that the plaintiffs have already lost possession on date of institution of suit and same was noticed by the First Appellate Court.

10. In case of Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs & Ors (2008) 4 SCC 594 Hon’ble Supreme Court has considered the matter relating to filing of a Civil Suit for prohibitory injunction relating to immovable property. Hon’ble Supreme Court has held that when title of plaintiff is disputed and plaintiff lacks possession, the proper remedy is a suit for declaration and possession with or without injunction. Only in case when plaintiff is lawfully in possession or facing threatening of dispossession then a simpliciter suit for injunction is sufficient. In a suit for injunction normally issue relating to title is irrelevant and same cannot be considered by any Court.

11. The judgment in case of Anathula Sudhakar (supra) was further considered by Hon’ble Supreme Court in case of Tehsildar, Urban Improvement Trust And. vs Ganga Bai Menariya Thr. Lrs 2024 INSC 121, a simpliciter suit for permanent injunction without claiming declaration of title and possession is maintainable only in case where the plaintiff's title is not in dispute or under a cloud and plaintiff is in possession of suit property.

12. Having considered the legal position as referred herein above, the Appellate Court after considering the evidence and the facts of the case has rightly interfered in the judgment passed by [2025:RJ-JP:23717] (6 of 6) [CSA-413/1995] the Trial Court. The material on record clearly indicate that the Trial Court has committed serious error while passing a decree of both prohibitory and mandatory injunction in favor of appellant plaintiffs. Thus, both the substantial question of law are answered in negative against the appellants.

13. In view of discussions made herein-above, the instant S.B. Civil Second Appeal preferred aggrieved from judgment dated

23.09.1995 in civil regular appeal No. 25/1993 (27/1993) is hereby dismissed along with pending application(s), if any.

14. No order as to costs. MONU /76 (ASHOK KUMAR JAIN),J