RAMA Vs. GENDI BAI

JUDGEMENT

(1.) The present second appeal is arising out of the judgment and decree dated 16.2.99 passed by the Additional District Judge, Sardarpur District Dhar in Civil Appeal No. 17 -A/97 arising out the judgment and decree dated 30.6.97 passed by the Civil Judge Class -II, Sardarpur in Civil Suit No.58 -A/94.

(2.) The facts of the case reveal that the plaintiff has preferred a civil suit claiming declaration of title and injunction against the defendant with a specific prayer not to dispossess him by use of force. The civil suit was in respect of the land situated at Survey No.58, area 4.180 hectare Tahsil Sardarpur District Dhar. It was pleaded in the civil suit by the plaintiff that by virtue of adverse possession, he is entitled to be declared as title holder and evidence in support of the plaint averments was produced by him. The trial Court after taking into account the evidence produced by the plaintiff as well as evidence produced by the defendants passed the judgment and decree dated 30.6.97 and the trial Court by decreeing the civil suit declared the plaintiff as title holder of the property, however injunction was not granted to him. The defendants being aggrieved by the judgment and decree to the extent that the plaintiff was declared title holder of the property in question preferred a first appeal. It is pertinent to note that the plaintiff has also preferred a cross -objection claiming injunction restraining the defendants from evicting him by use of force. The first appellate Court while deciding the first appeal has set aside the judgment and decree passed by the trial Court and has held that the plaintiff is not the title holder of the property in question as he was held to be in possession of the property only for a period of 6 years, however, the prayer in the cross -objection made by the plaintiff for grant of injunction has also been declined. The present second appeal has been filed by the plaintiff against the judgment and decree dated 16.2.1999 and the contention of the learned sr. counsel is that even if the plaintiff was not held to be the title holder of the property in question, the prayer for injunction could not have been refused and by no stretch of imagination, the plaintiff can be evicted by use of force and he can only be evicted by following the prescribed procedure under the law. He has placed a reliance upon a judgment of the apex Court in the case of Rame Gowda (dead) By LRS v.. M. Varadappa Naidu (dead) BYLRS and another, 2004 1 SCC 769 and his contention is that even though the plaintiff has failed to prove his title, the relief for grant of injunction could not have been refused to him, once it was held that the plaintiff is in possession of the property in question for the last 6 years and it is open for the defendants to file a civil suit on the basis of their title against the plaintiff and to evict him from the property in question. He has also placed a reliance upon a judgment delivered by the Principal Seat at Jabalpur of this Court in the case of Ajjal Mohd. Khan (since deceased) through his L.R.s v. State of M.P., 2004 1 MPJR 71, wherein a similar view has been taken by this Court and it has been held that a person can be dispossessed by following due course of law. The present second appeal has been admitted on the following substantial questions of law : -

(3.) Keeping in view the aforesaid judgment delivered by the apex Court, the findings arrived at by the first appellate Court to the extent of injunction has not been granted to the plaintiff are perverse findings.