Siddhartha Varma, J. - (1.)This is a plaintiff's second appeal against the judgement and decree dated 2.3.1977. The plaintiff filed a suit for perpetual injunction restraining the defendants from interfering with their possession over the suit property and also for restraining the defendants from digging earth etc. from a certain portion of the property in dispute. They claimed title and possession over the property in dispute on the basis of the fact that it was in their possession since before the abolition of Zamidari and so it had vested in them as land appurtenant to their abadi under Sec. 9 of the U.P. Act No. 1 of 1951. They had claimed that despite the fact that the respondents defendants had never been in possession and had no concern over the disputed plot yet they were disturbing their peaceful possession. The Trial Court framed certain issues and while deciding issue no. 4, though it found that the plaintiff had been dispossessed from a certain portion of the property in dispute and that the defendants had established their possession over it, decreed the suit. That apart, the trial court granted the plaintiffs the relief of possession over such portions of the property from which they had been dispossessed. The First Appellate Court reversed the decision of the trial court chiefly on the ground that despite the fact that there was no relief for possession, the trial court had granted the same.
(2.)The plaintiff-appellant submitted that once it was found that the plaintiff was in possession at the time of the filing of the suit then dispossession during pendency of the suit could not disable the Trial Court from putting the plaintiff back in possession even if there was no prayer. In this regard, he placed reliance on 2006 AP 131 (Mir Bazlay Ali Vs. Jagirdar Nirkhy Mir Mahammad Ali) and AIR 1975 A 48 (Hari Nandan Agrawal and another Vs. S.N. Pandita and others) and has submitted that after filing of the suit the plaintiff's could always be put back in possession under Sec. 151 of the C.P.C., even when there was no prayer for being put back into possession.
(3.)In reply, the counsel for the respondent defendant has submitted that once the plaintiff was found to have been out of possession then he had to amend his plaint so as to include the relief of possession and only then could the suit have proceeded and consequently decreed for the relief of possession.