KANHANGAD MUNICIPALITY Vs. KHADEEJA

JUDGEMENT

(1.) The first defendant in the suit is the appellant. The plaint A schedule property measuring 15 cents has been obtained by the plaintiff as per Ext. A1 assignment deed. The plaint B schedule property is a portion of the plaint A schedule property. The case of the plaintiff is that the first defendant Municipality has encroached on the plaint B schedule property and formed a road through the same. The second defendant is the contractor engaged by the first defendant for the purpose of forming the said road. The suit was, therefore, filed seeking a decree directing the defendants to surrender the plaint B schedule property to the plaintiff. The first defendant resisted the suit, contending that the plaint B schedule property is not part of the plaint A schedule property owned by the plaintiff. According to the first defendant, the plaint B schedule property is owned by one Padmanabhan and the road was formed after obtaining the consent of Padmanabhan. It was also contended by the first defendant that the construction of the road has been completed. The trial Court found that the plaint B schedule property is part of the plaint A schedule property. Consequently, the suit was decreed, directing the first defendant to surrender the plaint B schedule property to the plaintiff. The trial court, however, did not direct the first defendant to restore the plaint B schedule property to its original position for the reason that the plaintiff has not claimed such a relief in the suit. The plaintiff did not challenge the decision of the trial court in appeal. The first defendant challenged the decision of the trial court in appeal. The appellate court, on a reappraisal of the evidence on record, confirmed the decision of the trial court and dismissed the appeal. However, while dismissing the appeal, the appellate court found that the plaintiff was entitled to a decree of mandatory injunction directing the first defendant to restore the plaint B schedule property to its original position also and consequently, modified the decree passed by the trial court, granting the plaintiff a decree directing the first defendant to restore the plaint B schedule property to its original position. Aggrieved by the concurrent decisions of the courts below, the first defendant has come up in this second appeal.

(2.) Heard the learned counsel for the appellant.

(3.) The learned counsel for the appellant contended that in so far as there was no prayer in the suit for a mandatory injunction directing the first defendant to restore the plaint B schedule property to its original position, the appellate court was not justified in granting the said relief to the plaintiff, especially when the plaintiff has not preferred an appeal, or a cross objection in the appeal preferred by the first defendant seeking the said relief. It is trite that the court is entitled to mould reliefs to be granted to the parties in a suit and it has the power to grant reliefs which are not sought by the parties also, having regard to the facts and circumstances of the case. Further, the relief now granted by the appellate court is a relief which is incidental to the relief of recovery of possession/mandatory injunction sought by the plaintiff. As indicated above, the contention is that in the absence of any appeal by the plaintiff or cross objection in the appeal preferred by the first defendant, the appellate court should not have modified the decree in favour of the plaintiff. Rule 33 of Order 41 of the Code of Civil Procedure ('the Code' for short) reads thus: