- (1.) THIS is a defendant's appeal against judgement and decree dated 28-11-1969 passed by Civil Judge, Azamgarh in Civil Appeal No. 483 of 1966.
(2.) THE subject-matter of dispute is some bamboo clumps and a few trees. THE case of the respondent was that these trees and bamboo clumps were planted by his ancestor, that he was the owner of the said bamboo clumps and trees, that the appellant created trouble in his possession, that there took place proceedings under S.145, Cr. P.C. between the parties which ended in favour of the appellant, and that, therefore, he was compelled to file a suit for permanent injunction restraining the appellant from interfering with his possession. THE respondent claimed decree for permanent injunction only. THE appellant contested the suit that she was owner of the bamboo clumps and the trees, that the respondent had no concern with them and that relief claimed was hit by S.42 of the Specific Relief Act. The Munsif, Azamgarh, who tried original Suit No. 320 of 1963 clearly held that the respondent's ancestor had planted the bamboo clumps and the trees, that the respondent was the owner of the trees etc., that the appellant had no concern with the same, that the respondent ceased to be in possession from the date of the decision of the case under Section 145 Cr. P.C. that the Sub-Divisional Magistrate had not given cogent reasons to come to the conclusion that the appellant's ancestor was in possession of the trees and the bamboo clumps on 27-2-1963, the date of the preliminary order, that he was unable to place reliance on the judgement of the Magistrate on the point of possession of the appellant and that as the respondent was forbidden by order dated 30-9-1963 passed under Section 145 Cr. P.C. case from interfering with the appellant's possession, the respondent was not entitled to the relief of injunction in view of the provisions of Section 42 of the Specific Relief Act. The lower appellate Court agreed with the trial Court on the question of title and possession of the respondent. He clearly concluded that the respondent was in possession up to the date of the passing of the preliminary order under Section 145 Cr. P.C. The lower appellate Court then considered the legal position with regard to the applicability of Section 42 of the Specific Relief Act and came to the conclusion that the suit for permanent injunction only was maintainable. Consequently the lower appellate Court restrained the appellant from interfering with the possession of the respondent.
(3.) THE learned counsel for the appellant firstly urged that as the respondent had not claimed possession in the suit, the mere suit for injunction was not maintainable. As the present suit was filed in October, 1963, the provision of old Specific Relief Act, 1877, will be applicable. Section 42 of the old Act provided that any person entitled to any legal character or to any right as to any property may institute a suit and the court main its discretion make therein a declaration that he is so entitled and the plaintiff need not file any such suit asking for any further relief. This general provision is subject to a proviso that no court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title omits to do so.;