V.N.Khare - (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. The defendants respondents contested the suit and filed written statement. In the written statement it was alleged that the defendants-respondents Ghasita and Ali Jan were owners in possession of the said land and the trees, cattle trough hand pipes, Kotha and the fodder cutting machine on the said land belonged to Ali Jan and Ghasita. It was also alleged that Ali Jan and Ghasita were in possession of the land in suit since long time and it has been settled in their favour under section 9 of the U. P. Act no. 1 of 1951. They alleged that the defendants Ali Jan and Ghasita were coming down in possession of the land for about 10 years before the Zamindari Abolition and the suit for permanent injunction filed by the plaintiff was not maintainable. The learned Munsif Muzaffarnagar held that the plaintiff-appellant was Bhumidhar of the disputed plot but defendants were in possession over the said plot of land. Learned Munsif held that since the relief for delivery of possession had not been claimed the suit for permanent injunction was not maintainable, he, therefore, dismissed the suit by judgment and order dated 16th October 1978. The plaintiff appellant (Asha Ram) filed an appeal against the aforesaid judgment and decree of the learned Munsif dismissing the suit. A cross-objection was filed by the defendants against the finding of the learned Munsif holding the plaintiff-appellant to be Bhumidhar of the said plot of land. The Civil Judge by judgment and order dated 13th July 1979 dismissed both appeal and the cross objection filed by the plaintiff and the defendants respectively. The learned Civil Judge in his judgment affirmed the findings of the learned Munsif and the view taken by his for dismissing the plaintiff appellant's suit. It is against this judgment and decree that the present second appeal and cross-objection have been filed.
(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. Learned counsel for the appellants pressed these two points before me, and argued that the plaintiff appellant having been found by both the courts as Bhumidhar of the land in dispute, the suit for injunction could not have been dismissed as not maintainable. He argued that there was no equally efficacious relief which could have been obtained by the plaintiff- appellants by any other usual mode or proceedings.;