TULASA Vs. SURATRAM

JUDGEMENT

(1.) THIS is a second appeal against the judgment and decree of the Addl. Commissioner II Jaipur dated 23. 2. 60, whereby he has reversed the judgment and decree of the S. D. O. Mandalgarh dated 28. 8. 59 and rejected the plaintiff's suit for permanent injunction. We have heard the learned counsel for the parties and examined the record also. The appellant filed a suit for permanent injunction with the averments that he had been cultivating the suit land bearing khasra Nos. 1048, 1053, 1055 and 1057 alongwith well No. 1052 situated in village Joraka-khera Tehsil Kotri District Bhilwara for 20 years and paying rent to the respondents, that the respondent wants to eject him from that land and have been attempting the same for 5 years, that they have given a contract for the felling and rebuilding of the Dhena of the well to one Shri Ramsukh Mali and prevented the appellant from going to the field and cultivating it and thereby want to deprive him of irrigating and tending his standing crops of wheat, sugarcane and cotton seed, and that they have also burnt the fencing made by him. THIS was denied by the respondents. They denied the possession of the appellant for the last 20 years. Their contention is that the land had been let out to the appellant only for a year on Theka the term of which having expired they refused to release it to the appellant who forcibly continued to be in possession thereof and damaged the well with the result that it fell into disrepairs apprehending a great injury to the respondents and necessitating the removal of the fallen 'dhena' and repairing it, and that, that was why they had burnt the fencing round about the well and got removed the Mulba. It was also alleged by them that the appellant had himself handed over the possession of the well and the land through the Panchayat Board.

(2.) THE learned trial court after framing a number of issues and making an enquiry into the matter came to the conclusion that the appellant had been in possession of the land for the last 20 years and paying rent first at the rate of 1/3 share and then at Rs. 125/- per annum in cash and that the respondents had been wrongfully trying to evict the appellant therefrom, that they had tried to dispossess the appellant accusing him of doing detrimental acts on the land but had failed, that they had prevented the appellant from irrigating the sugarcane crop and dug out the Dhena of the well, that the appellant had not agreed to the decision of the Panchayat, Board to hand over the land and well back to the respondents, but had been continuing to be in possession thereof, that notwithstanding the same the respondents had burnt the fencing put by the appellant and dug the Dhena of the well and that they were wrongfully trying to dis-possesess the appellant therefrom. It was also found that the respondents had notwithstanding a temporary injunction having been served on and existing against them wrongfully dispossessed the appellant from the suit land and well during the pendency of the suit. An injunction restraining the respondents from interfering with the possession and the cultivation of the appellant and from digging out the Dhena of the well and thereby preventing the appellant from doing irrigation therefrom was accordingly granted. An appeal was preferred to the learned Additional Commissioner, Jaipur, who set aside this decree only on the ground that it was an admitted position between the parties that the appellant had been dispossessed from the suit land during the pendency of the suit and that an injunction under sec. 188 of the Act can be granted "only when" " (to use the words of the learned Additional Commissioner himself)" the right of a tenant to a holding is invaded or threat end to be invaded and not when he has actually been dispossessed. After the actual dispossession the only remedy is to file a suit for recovery of possession". THE suit was thus held to be no longer maintainable because of the appellant having been dispossessed after the institution and during the pendency of the suit.

(3.) OBVIOUSLY, therefore, the learned Addl. Commissioner has erred in law and failed to exercise the jurisdiction vested in him by dismissing the suit only because the appellant had been dispossessed from the suit land during the pendency of the suit. When it was so clear to him that the respondents had dispossessed the appellants notwithstanding the temporary injunction having been granted by the learned trial court against them and flouted the authority thereof, he should have, even if he did not like to exercise his inherent powers under sec. 151 C. P. C. , asked the appellant to amend his plaint so as to seek a relief for possession also and given him an opportunity of doing the same and not dismissed the suit summarily as he has been pleased to do. The appellant could do no more than file a suit for injunction and seek and obtain a temporary injunction as soon as he found his possession invaded or threatened. If the respondents even then acted in a way to flout and disregard the authority of the court and law, it was for the court to deal with them and not let them reap the benefit of their unlawful action. The learned trial court did take note of this and acted quite correctly. the learned Addl. Commissioner, however, failed to make a proper appreciation of these circumstances. He too should have given serious consideration to these circumstances and acted in a way to subserve the ends of justice and not to let them be defeated, by mere technicalities of law.