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Bauri and ors. Vs. Natabar SwaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 26 of 1977
Judge
Reported inAIR1982Ori268
ActsCode of Civil Procedure (CPC) , 1908 - Order 2, Rule 2
AppellantBauri and ors.
RespondentNatabar SwaIn and ors.
Appellant AdvocateP.K. Misra and ;L. Mohapatra, Advs.
Respondent AdvocateP.C. Misra, Adv.
DispositionAppeal dismissed
Cases Referred(See Rai Charan v. Biswanath
Excerpt:
.....of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the..........of shyam swain, dhaneswar swain and the plaintiff. shyam swain has gifted his 1/3rd share in the suit plot in favour of pro forma defendant no. 4 by a registered deed of gift in the year 1964. dhaneswar swain died leaving behind him his widow, pro forma defendant no. 5 as his only heir. it is claimed that the plaintiff and pro forma defendants 4 and 5 are the full owners in possession of the disputed plot no. 1408. there were seven old mango trees standing on the disputed plot and this has been recorded in the c. s. khatian. two mango trees were subsequently cut and by the time of the suit five old mango trees stood on the western side of plot no. 1408 on its southern portion. it is alleged that defendants 1, 2 and 3 who are owners of the contiguous plot no. 1407 to the immediate west.....
Judgment:

B.N. Misra, J.

1. This appeal arises out of Title Suit No. 219 of 1970 filed by the plaintiff in the Court of the Second Munsif, Cuttack, The prayer of the plaintiff was that defendants 1, 2 and 3 should be permanently injuncted from interfering with the possession of the plaintiff and pro forma defendants 4 and 5 over the disputed plot No. 1408 and the five mango trees standing thereon.

2. The plaintiff's case is that the disputed plot No. 1408 appertaining to Khata No. 167 of village Kuliagaon stands recorded in the names of Shyam Swain, Dhaneswar Swain and the plaintiff. Shyam Swain has gifted his 1/3rd share in the suit plot in favour of pro forma defendant No. 4 by a registered deed of gift in the year 1964. Dhaneswar Swain died leaving behind him his widow, pro forma defendant No. 5 as his only heir. It is claimed that the plaintiff and pro forma defendants 4 and 5 are the full owners in possession of the disputed plot No. 1408. There were seven old mango trees standing on the disputed plot and this has been recorded in the C. S. Khatian. Two mango trees were subsequently cut and by the time of the suit five old mango trees stood on the western side of plot No. 1408 on its southern portion. It is alleged that defendants 1, 2 and 3 who are owners of the contiguous plot No. 1407 to the immediate west of the disputed plot No. 1408 were laying a false claim to the five mango trees on plot No. 1408 in connivance with some other people. According to the plaintiff, the cause of action arose on 29-10-1970 when defendants 1, 2 and 3 threatened to cut the mango trees on plot No. 1408 and interfered with his possession.

3. In their written statements defendants Nos. 1 to 3 admit that plot No. 1408 belongs to the plaintiff and defendants 4 and 5. According to these defendants, seven mango trees stood on plot No. 1408 at the time of settlement operations in 1930, but all those trees were cut long long ago either by the plaintiff and defendants 4 and 5 or their predecessors. Thereafter there were no mango trees left on plot No. 1408. These defendants admit that plot No. 1407 belonging to them is contiguous to plot No. 1408 and stands to its west, but they deny that they are laying any false claim, to the five mango trees standing on plot No. 1408. They have also denied that they have removed any mango trees from plot No. 1407 as alleged by the plaintiff. These defendants have said that they have never threatened the plaintiff and defendants 4 and 5 or interfered with their possession over plot No, 1408. These defendants have further stated that at the time of the suit five mango trees stood on plot No. 1407 and these trees belong exclusively to defendants 1, 2 and 3 with a gap of about 5 to 10 links between plots Nos. 1407 and 1408, These defendants have put in an alternative plea of adverse possession in case it was found that any of the mango trees were situated on plot No. 1408.

4. During trial a Civil Court Commissioner was appointed and his report was accepted. However, in appeal the Commissioner's report was set aside and the appellate Court directed a fresh Civil Court Commissioner to be appointed, The second Commissioner came to the same finding as the previous one that the disputed land appertains to plot No. 1408 belonging to the plaintiff and defendants 4 and 5. On a consideration of the oral and documentary evidence and the report of the Commissioner, the trial Court came to hold that the disputed mango trees stood on plot No. 140S and that defendants 1, 2 and 3 had no manner of right, title and interest over the same. The plaintiff's suit was decreed and defendants 1, 2 and 3 were directed to restore possession of the encroached portion of plot No. 1408 with the five mango trees standing thereon to the plaintiff within a period of one month from the date of the judgment. The trial Court granted the relief of recovery of possession to the plaintiff in the following circumstances. The plaintiff filed his suit on 2-11-1970 along with a petition for temporary injunction. Defendants 1, 2 and 3 appeared on 6-11-1970 and filed their objection. The injunetion matter was heard on 7-11-1970 and interim injunction was granted against defendants 1, 2 and 3. No appeal was preferred against this order. On 7-12-1970 an application under O. 39, R. 2 (3), C.P.C, was filed by the plaintiff alleging violation of the order of injunction by defendants 1, 2 and 3 who had put a fence around the mango trees, thereby depriving the plaintiff of his possession over the mango trees. The defendants filed their objection on 16-2-1971 to the effect that they have not put any new fence at the spot, but that the fence had existed since prior to the filing of the suit. During hearing of that matter three witnesses were examined on behalf of the plaintiff and one on behalf of the defendants. The trial Court by his order dated 20-3-1972 found that there was no violation of the injunction order by the defendants. The plaintiff filed Misc. Appeal No. 30 of 1972 before the District Judge, Cuttack against the aforesaid order dated 20-3-1972, After hearing the parties, the learned Additional District Judge by his order dated 15-9-1972 allowed the appeal, found that the defendants were guilty of violation and directed attachment of property worth Rs. 500 of the defendants for a period of six months. In these circumstances, though there was no prayer for recovery of possession, the learned trial Court directed restoration of possession, to the plaintiff who had been dispossessed by the defendants after the filing of the suit and in violation of the injunction order of the Court. Defendants 1, 2 and 3 filed Title Appeal No. 143 of 1978 which was dismissed by the learned Appellate Court by his judgment dated 30-11-1976.

Thereafter these defendants have filed the present appeal. In the meanwhile appellant No. 1 having died, appellant No. 1/a and appellant No. 1/b have been substituted in his place. The application under O. 41, R. 27, C.P.C. filed by respondent No. 1 was not pressed at the time of hearing of this appeal and hence the same is rejected.

5. This appeal has been admitted for hearing on the following three points of law:

'(1) Whether a suit purely for permanent injuriction will lie in view of the facts and circumstances of the case without a prayer for declaration of title.

(2) Whether in view of the evidence on record, plaintiff has also to pray for recovery of possession.

(3) Whether the Commissioner's report is acceptable as a satisfactory evidence in view of the statement of the Commissioner and whether it is supported by other evidence on record?'

6. The first point of law rightly has not been seriously pressed in this appeal. As regards this point, the learned trial Court is correct in his observation that in a suit for permanent injunction it is not essential for the plaintiff to prove his title. Moreover, on a reference to the pleadings of the parties it is seen that the appellants (defendants 1, 2 and 3) have clearly admitted that the plaintiff and defendants 4 and 5 are the owners of plot No. 1408. In view of this clear admission it was not necessary for the plaintiff to prove his title over plot No, 1408.

7. As regards question No. 3, on going through the judgments of the Courts below I find that both the Courts below have discussed the entire evidence adduced by the parties along with the Commissioner's report. The Commissioner's report has been discussed in detail by the learned trial Court and I see no reason to take a different view.

8. As regards question No. 2, learned counsel for the appellants has submitted that in the absence of a prayer for recovery of possession, the Courts below acted illegally in granting the said relief to the plaintiff. In support of this contention reliance is placed on AIR 1977 J & K 21 (Mohd. Sultan Wani v. Qasim Ali). In the aforesaid decision the following observation of the Supreme Court in AIR 1953 SC 235 (Trojan & Co. v. Nagappa Chettiar) has been extracted:

'The decision of a case cannot be based on grounds outside the pleadings of the parties and it, is the case pleaded that has to be found. Without an amendment of the plaint the Court was not entitled to grant the relief not asked for.'

Relying on the aforesaid observation of the Supreme Court the Jammu and Kashmir High Court held (at p. 23):--

'...,.. In the same way where a plaintiff in a suit for permanent injunction is dispossessed by the defendant during the pendency of the suit, the Court can no doubt lake notice of this subsequent event but it has no power under O. 7, R. 7 to grant relief of possession to the plaintiff without notice to the defendant and without asking the plaintiff to amend the plaint......'

The main point emphasised in the aforesaid decision is that though the Court can take notice of subsequent events it should not grant the relief of possession 'to the plaintiff without notice to the defendant. True, it will be most unfair to grant a relief to the plaintiff without any notice of the matter to the defendant. The facts of the present case are however different. In this case, the appellants cannot say that they had no notice of the matter. In fact they were found to have dispossessed the plaintiff after the filing of the suit in violation of the order of injunction passed against them by the Court. Therefore in this case the question of lack of notice to the defendants does not arise. They knew fully that they had unlawfully dispossessed the plaintiff after the filing of the suit and they were punished for that. Learned counsel for the respondents submitted that Courts can take notice of subsequent events and grant relief even without pleadings in exceptional circumstances and according to him, the facts of this case justify the relief of recovery of possession to be granted to the plaintiff without a prayer for the same in the plaint. In support of his contention learned counsel relies on AIR 1974 SC 1178 (Shikharchand Jain v. Di-Ramber Jain Praband Karini Sabha) wherein it was held-

'...... Ordinarily, a suit is tried in allits stages on the cause of action as it existed on the date of its institution. But it is open to a Court including a court of appeal to take notice of events which have happened after the institution of the suit and afford relief to the parties inthe changed circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate; or (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation, or (3) to do complete justice between the parties. (See Rai Charan v. Biswanath, AIR 1915 Cal 103).'

On the basis of the aforesaid decision I have no hesitation to agree with the learned Courts below that it was necessary for the Court to take notice of the changed circumstances in order to shorten the litigation and the course they adopted best subserves the ends of justice, particularly when the defendants are not prejudiced on account of lack of notice.

9. For the reasons stated above, this second appeal is dismissed with costs throughout. The judgments and decrees of the Courts below are confirmed.


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