ASHA RAM Vs. GHASITA

JUDGEMENT

(1.) THE above second Appeal fled on behalf of the plaintiff-appellants and the cross objection, filed on behalf of defendants- respondents-objectors, arise out of the judgment and decree passed by Civil Judge. Muzaffarnagar on 13th of July 1979 in Civil Appeal No. 404 of 1978, and, therefore, both are feeing disposed of by a common judgment.

(2.) ASHA Ram, the plaintiff, filed Suit No 45 of 1977 for issue of per-manent injunction restraining the defendants-respondents from interfer ng, in any way, with his possession over the land in dispute According to the plaint allegations the plaintiff-appellant (ASHA Ram) was the Bhumidhar in possession over plot No. 355 measuring 16 Biswas situate in village Dinkarpur Pargana Shikarpur district Muzaffarnagar, alongwith Mitter Sen and others. The land has been shown by letters A B C D in the site plan attached to the plaint. It was alleged that there stood trees of mango, Neem. Pipal, Guava and Shisham etc. on the said land and there also existed a Kachha Kothri and a fodder cutting machine on the said land. Alternatively, the plaintiff (ASHA Ram) alleged that the land was settled with him under section 9 of the U. P. Zamindari Abolition and Land Reforms Act 1950 and the defendants respondents have got no concern with the said land. Since they wanted to take forcible possession of the land and to demolish the constructions standing thereon, he filed a suit for permanent injunction.

(3.) WHILE admitting this S ond Appeal this Court framed two questions of law. One, whether the lower appellate court was justified in its view of law that the suit of the plaintiff-appellant was not maintainable under the provisions of the Specific Relief Act as the plaintiff was out of possession : Second, whether the lower appellate court having found that the plaintiff was the owner of the land in dispute, it should have moulded the relief by granting a decree for possession, even though it had not been asked for in the plaint.