(N.V. Ramana and Mohan M. Shantanagoudar, JJ.)
Jharkhand State Housing Board ________________________ Appellant
v.
Anirudh Kumar Sahu _____________________________ Respondent(s)
Civil Appeal No. 8242 of 2009, decided on October 9, 2018
The Judgment of the Court was delivered by
N.V. Ramana, J.:—
1. In this appeal the unsuccessful defendant impugned the judgment and decree passed by the High Court of Jharkhand at Ranchi in second appeal in 273/2003 dt. 26/8/2004 whereby the High Court has confirmed the concurrent findings of the courts below by decreeing the suit.
2. A close scrutiny of the plaint is necessary for adjudication of the dispute involved in the present appeal. The plaintiff has filed title suit no. 5 of 1992 on the file of the Munsif court at Seraikella. In the plaint after the cause title, he stated that the suit is for declaration of title, confirmation of possession and permanent injunction and the suit is valued at Rs. 20,000/-. Then the plaint starts with the description of facts that the suit schedule property belongs to Raja Adithya Pratap Singh Deo of the estate of Seraikella and subsequently it is purchased by Kumar Subodh Singh by registered sale deed dated 24-08-1990, he in turn sold the suit schedule property to the plaintiff by way of registered sale deed dt 21-10-1990 for a consideration of Rs. 20,000/- and ever since than he has been in possession of the property by constructing a residential building. The defendant has sent notice dated 04-01-1992 asking the plaintiff to quit and deliver vacant possession of the suit land and for payment of amount and further threatened the plaintiff to dispossess him from the land. Hence he came up with the present suit seeking the relief of permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiff.
3. The defendant has filed the written statement alleging that the suit is barred under the principles of waiver, estopple, acquisition, under Section 38 of Specific Relief Act and on the ground of not impleading the proper and necessary parties to the suit, and also on the ground of not issuing the notice under Section 62 and 92 of the BSHB Act. Further it was stated that the mere suit for perpetual injunction without claiming any relief of declaration as to the entry in the record of right, declaration of title and for confirmation of possession, is not at all maintainable either in law or in facts. In fact, the plaintiff in the suit is indirectly seeking the declaratory relief which is not permissible.
4. It is further averred in the written statement that the plaintiff’s vendor has no right and title to the property as the property is in possession of the defendant since 1965 and prior to that it was in possession of the State of Bihar. The property was acquired through land acquisition proceedings and possession was delivered way back in 1965 and hence sought dismissal of the suit.
5. We have gone through the judgment of the trial Court, 1st Appellate court and the High Court. The Courts below have entertained the suit as if the suit is filed for declaration of title which is evident from the judgments wherein they have categorically observed that the Suit is for declaration of title, confirmation of possession and also for perpetual injunction. The trial Court has framed the issue with regard to the title and gave a finding that plaintiff has proved his title and possession over the suit land and constructed a house over the same, as there is interference, he has come up with the present suit, as such he is entitled to maintain the suit in the present form. The trial Court has framed several issues and held all the issues in favour of the plaintiff but only granted the relief of permanent injunction to the plaintiff. The unsuccessful defendant approached the appellate Court and the appeal was dismissed. In the second appeal, the High Court also went ahead with the same assumption that it is a declaratory suit and dismissed the appeal by observing that both the Courts concurrently found that plaintiff has valid right, title and interest.
6. We have heard the learned counsel on either side and perused the material available on record. We are very much surprised at the way the suit was dealt with by the Courts below contrary to the pleadings and contrary to the settled legal position. In the plaint, plaintiff has clearly averred that as the defendants are interfering with his possession, the necessity arose to file the suit for permanent injunction and particularly sought the prayer for permanent injunction. The trial Court has framed several issues and held all the issues in favour of the plaintiff including the issue with regard to title but granted only the relief of injunction. The trial Court has given several findings with regard to the title and observed that plaintiff has got right and title to the property. Even the 1st appellate Court has also made specific observation with regard to title and gave a clear finding that plaintiff has asked for declaration. High Court mechanically confirmed the judgment and decree of the Courts below without appreciating both the legal and factual aspects.
7. We have given our anxious consideration and we are of the considered opinion that the Courts below misconstrued the pleadings and went on a premise that the suit is for declaration of title when the same is for bare injunction and in a way declared the title of the plaintiff. Even before this Court plaintiff filed the counter and stated that his suit is only for the relief of injunction. The learned counsel has also submitted that the relief sought is only for injunction. The copy of the plaint filed before us also strengthens the same. The judgment and decree under appeal deserves to be set aside and accordingly appeal is allowed. It was brought to our notice that plaintiff is continuing with the possession of the property during the pendency of the litigation. In view of the same we deem it appropriate to direct the parties to maintain status quo for a period of 3 months and if so advised, to avail the remedy available under law. Resultantly, the appeal is allowed with the above observations by setting aside the judgment and decree dated 26th August, 2004, in the circumstances without costs.
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