C.M. Lodha, J.
1. The plaintiff has filed this second appeal in a suit for declaration and injunction.
2. The dispute between the parties pertains to a 'Gwada' situated in village Milikpur, District Alwar. The plaintiffs case is that he is the owner of this 'Gwada' and is also in possession of the same. However in proceedings under Section 145 Cr.PC. the Sub-divisional Magistrate, Behror declared the possession of the defendants on this 'Gwarda'. Thereafter the plaintiff filed the present suit proving that he may be declared the owner of this 'Gwada' and since he was in possession of the same the defendants may be restrained from interfering with his possession by grant of a perpetual injunction against them. The defendants denied the plaintiff's claim and asserted their own right to the 'Gwada' in question. After recording the evidence of the parties the trial court came to the conclusion that the plaintiffs were proved to be the owners of the 'Gwada' and were also in possession of the same. Consequently he decreed the plaintiff's suit and granted an injunction against the defendants as prayed. The defendants thereupon filed an appeal. The learned Civil Judge, Alwar who decided the appeal by his judgment and decree dated 15-9-1966 came to the conclusion that the plaintiff had established his ownership to the 'Gwada' in question but the suit for injunction was not maintainable, in as much as the order in the proceedings under Section 145, Cr.P.C. having been passed against the plaintiff declaring the plaintiff not be in possession of the property, the plaintiff was bound to sue for possession. In this view of the matter the defendants' appeal was allowed and the plaintiff's suit was dismissed by the Civil Judge. The plaintiff has, therefore, come up in second appeal to this court.
3. There is no denying the fact that by his order dated 25-7-1961 the learned Sub-divisional Magistrate, Behror had declared the possession of the defendants over the 'Gwada' in question and had forbidden the plaintiff from interfering with the defendants possession unless the defendants were evicted in due course of law.
4. It is well established that an order under Sub-section (6) of Section 145, Cr.P.C. declaring any party to be entitled to possession until evicted therefrom in due course of law and forbidding the opposite party from such possession until such eviction, amounts to dispossession of the party against whom the order is passed. In Sewa Das v. Ram Parkash AIR 1947 Lah. 173 it was held that the finding of a criminal court that a particular party was in possession of a property on the date on which the breach of peace was likely to occur could not be questioned in Civil court and that party must be held to be continuing in possession until he was evicted in due course of law. It was also held that it was not open to the contesting party in the criminal court to show in a civil suit that he was in possession of the property on the date of the order under Section 145, Cr. P.C. and the party declared to be in possession by the criminal court must be assumed to be in possession at the date of the suit. It was further held that in such circumstances no injunction could be granted by the Civil Court in respect of such properly. It was, therefore, necessary for the plaintiff to have asked for possession of the 'Gwada' in question.
5. Driven to this position the learned Counsel for the appellant made an application that he may be allowed, to add the relief for Possession. He has urged that the objection was not taken at the earliest opportunity, but was taken for the first time before the first appellate court. It is submitted that the plaintiff has been held to he the owner of the property and in order to do complete justice between the parties and avoid multiplicity of proceedings the amendment should be allowed. The prayer for amendment is being opposed. However, in the facts and circumstances of the case I consider it proper to allow the application for amendment of the plaint, and hereby direct that the plaintiff will be allowed to amend the plaint so as to substitute the relief for possession in place of injunction. He may also be allowed to make consequential changes in this respect suit as payment of court fee etc. However, I think it proper that the plaintiff should be called upon to pay the costs for making this amendment.
6. I, therefore, allow this appeal, set aside the judgment and decree of, the court below and send the case back to the Court of Munsiff, Behror with a direction that he will allow the plaintiff to amend the plaintiff as mentioned above on payment of Rs. 100/- as costs to the defendants within two months from to-day. After the amendment of the plaint the defendants will be given an opportunity to file a written statement to the amended plaint and it will be open to both the parties to lead additional evidence, if they so choose, and thereafter the Court will decide the case afresh. Costs of this appeal will be easy.