KIRPAL SINGH Vs. HARBAJAN SINGH

JUDGEMENT

(1.) THE above stated appeals are directed against the JUDGMENT and decree dated 22.11.85 passed in first appeal by the learned Addl. District Judge, Jammu. The JUDGMENT and decree dated 17.4.84 passed by the City Judge; Jammu were challenged in first appeal by the appellant Amlok Ram (of appeal No. 11/86) was the reliefs of permanent prohibitory and mandatory injunction were not granted to him. Appellant Kirpal Singh (of appeal No, 6/86) had forcibly raised construction over the disputed plot of land and the relief a possession was claimed by the appellant Amlok Ram (of appeal no. 11/86). The firs appellate court concurrent with the trial court in holding that the suit for injunction filed by the appellant Amlok Ram was no maintainable without seeking relief o possession, but at the same time allowed the application of the appellant Amlok Ram for amending the suit whereby insertion of para -5(A) in the plaint was allowed which is to the following effect:

(2.) ACCORDINGLY , the case was remanded to the trial court for decision on the basis of above stated amendment in the suit. Aggrieved by this JUDGMENT and decree appellants Kirpal Singh and Charan Singh who are the son and the father have filed appeal (No. 6/86) under 0.43 Rule -1 (U) CPC in this appeal it has been alleged that on March 26, 1979 respondent (Amlok Ram plaintiff) was not in possession of the disputed plot and as such suit for permanent injunction is not maintainable: By allowing the amendement, the first appellate court has converted the suit -of injunction into the suit for possession which legally cannot be done. That at the time of instituting the suit the relief of possession was available to respondent No. 2 herein (Amlok Ram) but he did not include the whole claim in respect of the cause of action and afterwards he is debarred to sue for relinquished claim. The value of the plot at the time when the amendment was allowed was more than Rs. 50,000/ - and when the suit is amended, it has ousted the jurisdiction of the trial court (City Judge, Jammu) and thus amendment was not permitted.

(3.) IN the memo of 2nd appeal (11/86) appellant Amlok Ram has challenged the above stated JUDGMENT and. decree on the ground that the trial court while deciding issues no. 1, 5 and 6 had found that appellant (Amlok Ram) had proved that he was the owner of the disputed plot and was in possession, but defendants (respondents herein) had in the month of March 1979 forcibly started raising construction thereon. The trial court had refused the grant of decree on the ground that relief of possession was not claimed. The Appellate Court had fallen into error when it held that possession of the suit property was lost to the appellant (Amlok Ram) because of forcible construction raised by respondents herein and this view is contrary to the legal position because and this view is contrary to the legal position because the act of trespass over the property was immediately objected by the real owner as soon as he came to know about it and this did not amount to dispossession from the disputed plot when it was in the shape of vacant plot. Possession in such cases always remains with the title holder and raising of illegal construction over a portion of the vacant plot does not amount to dispossession of the rightful owner. The appellant had never acquiesced in the act of trespass committed by respondents, but he objected and had filed immediately suit of injunction. Substantial question of law was also framed in the memo of appeal in the following form: