SUDARSHAN THAKUR Vs. KAILASH CHANDRA SHRINGI

JUDGEMENT

(1.) HEARD Sri Surendra Tewari, learned Counsel for the plaintiff-appellant.

(2.) THE claim of the plaintiff-appellant is that he is owner in possession over Plot Nos. 16-Kha (area 2 biswa), 16-Ga (area 12 biswa), 8-Da (area 1 biswa), 8-Ja (area 7 biswa) and 6-Ka (area 3 biswa) (hereinafter referred as the land in dispute) situated in Village Parasi, Pargana Singrauli, Tehsil duddhi, District Sonbhadra. Original Suit No 9/93 was instituted by the plaintiff-appellant along with respondent Nos. 3 to 6 against the defendant-respondent Nos. 1 and 2 claiming relief of permanent injunction to restrain them from interfering with the peaceful possession and from raising any construction over the land in dispute. The respondent Nos. 2 and 3 filed their written statement denying the claim of the plaintiff and also pleaded that the land in dispute was acquired for Northern Coal Fields Ltd. (N. C. L. ). The suit was dismissed on 18. 9. 1998, against which civil Appeal No. 35 of 1998 was preferred which also stands dismissed on 24. 12. 2007. Both the judgments are under challenge in this appeal.

(3.) LEARNED Counsel has emphatically argued that the Courts below committed an error of law while ignoring the Commissioner's report in as much as commissioner reported that the plaintiff-appellant was in possession. The findings recorded by the two Courts have been assailed secondly on the ground that the Courts could not have gone beyond the pleadings since the relief claimed was against the respondent Nos. 1 and 2 only and not against N. C. L. The findings arrived at by the two Courts that the land in dispute belongs to n. C. L. is perverse and liable to be quashed. A number of questions of law has been raised in this appeal claiming to be substantial questions of law which arises in the instant second appeal. The main thrust of argument by the learned counsel is that no relief of injunction was prayed against N. C. L. , injunction could not be refused specially when the respondent Nos. 1 and 2 have no claim and title over the land in dispute, the Courts had no option but to grant injunction. On perusal of the two judgments, it transpire that earlier an order dated 25. 5. 1990 was passed by the Deputy Collector/a. R. O. In case No. 389 and 806/850 declaring the appellant to be Bhumidhar with transferable right. However, this order was set at naught by subsequent order dated 9. 9. 1992 and 11. 3. 1993. Learned counsel states that since these two orders have been passed behind his back, it has no relevance and can not be used against him. It is also admitted that the two orders dated 9. 9. 1992 and 11. 3. 1993 have never been challenged before any Court. Learned Counsel submits that the appellant continued to be in possession and, therefore, he could not be refused injunction against the respondent Nos. 1 and 2. No relief was claimed against the N. C. L. and, therefore, the Courts below grossly erred in law in refusing the relief of injunction. Learned Counsel has placed reliance on two decisions of the Apex court, M. Kallappa Setty v. M. V. Lakshminarayana Rao, AIR 1972 SC 2299. The emphasis is that the principles laid down in this decision by the Apex Court is that the plaintiff on strength of his possession can resist interference from defendant who has no better title than himself and get injunction restraining defendant from disturbing his possession. No doubt the plaintiff can be granted injunction but in the instant case it was specific pleading in the written statement that the property in question belongs to N. C. L. and there is no interference on the part of the defendant Nos. 1 and 2 whatsoever, therefore, the Courts have rightly come to a conclusion that the injunction if at all should have been claimed against N. C. L. Learned Counsel has also placed findings on two issues regarding non-joinder of N. C. L. as a party and maintainability of suit which was decided as a preliminary issue. The Courts have recorded a finding that since injunction has been claimed against the respondent Nos. 1 and 2 and not n. C. L. , if the plaintiff has chosen not to array N. C. L. , the suit is not bad. The two preliminary issues were decided on 15. 5. 1996 in favour of appellants. Copy of the order deciding the two issues is Annexure-4 to the stay application. However, it was clearly pleaded in the written statement that neither they ate interfering nor they have a right to claim possession of the land in dispute. The Courts can not be expected to be oblivious of the correct situation and grant blanket injunction in the garb of no relief being claimed against the N. C. L. The courts were conscious that the actual owner will substantially be prejudiced for whose benefit disputed property has admittedly been acquired and there are two judgments pertaining to the years 1992 and 1993 in his favour.