RAKESH KUMAR GARG, J. - (1.) THIS is plaintiffs' second appeal challenging the judgment and decree of the trial Court dated 31.07.2012 whereby their suit for permanent injunction restraining the defendant -respondent from dispossessing them from the land in dispute was dismissed. Further challenge has been made to the judgment and decree dated 16.12.2013 of the first appellate Court whereby their appeal filed against the aforesaid judgment and decree of the trial Court was also dismissed.
(2.) AS per the appellants, they are holding the suit property since long time. Initially, the suit property had Kacha houses but over a period of time they have built Pucca houses and now their families live in the suit property. They do not intend to create any construction or Rasta on the property in question, however, due to inimical attitude of few villagers and mutual rivalry, a false and frivolous complaint has been made against them and now the defendant was threatening to dispossess them and interfere in their peaceful possession. Upon notice, defendant -respondent appeared and filed written statement raising various preliminary objections. On merits, it was submitted that the plaintiffs were not having any right, title or interest in the suit property which was a vacant plot and under the garb of this suit, the appellants want to grab the suit property. Moreover, despite status quo ordered by the Court, they have constructed pillars. It was further averred that as per the site plan submitted by them, there is an open space which is owned by Gram Panchayat which is meant for Gurudwara and thus, the suit is liable to be dismissed. No replication was filed to the averments made in the written statement. On the basis of the pleadings of the parties, the following issues were framed by the trial Court: (1) Whether the plaintiff is entitled to a decree for permanent injunction, as prayed for? OPP (2) Whether the suit is not maintainable in the present form, as alleged in the written statement? OPD (3) Relief. While dismissing the suit, the trial Court under issue No.1 observed as under: "14. Here in the instant case, the plaintiff has alleged that the plaintiff is in possession of suit property from a long time and the said property is their ancestral property in which their families are living for a period of more than 50 years. However, during the proceedings of the instant case, it has come on record that said land was purchased by plaintiffs from Inder Singh in 1982 which is not disputed by the plaintiffs either and the respective sale deed has also been placed on record. Moreover, the plaintiffs have failed to place on record any map as available with Patwari or at Tehsil office to prove the dimensions of said plot as claimed by them in their plaint. There are two documents on the file which are at variance. One is Ex.PW4/1 as placed on record by the plaintiff which they got prepared by an architect, who was examined as PW4 and he categorically stated in his cross -examination that during the preparation of the site map the house of plaintiff was still under -construction though PW1 categorically stated that the house was fully constructed at the time of preparation of site plan. Another is Ex.D1, site map got prepared by defendants, which shows that plaintiffs have encroached upon piece of land and has built a disputed wall over it. 15. It is pertinent to mention that the dimensions shown in the site plan do not match with the dimensions given in the judgment dated 18.04.2002 as well as not even with dimensions shown in hibbanama dated 09.03.2006 nor with the dimensions in the sale deed dated 25.08.1982. 16. As such, plaintiff has not been able to prove that the disputed property is the same as mentioned in hibbanama and sale deed placed on record. The dimensions mentioned in the sale deed, hibbanama and site plan are at variance. The contention of the plaintiff that a decree be passed in accordance with the dimensions mentioned either in the Ex.PY judgment dated 18.04.2002 placed on record or on the basis of the hibbanama holds no good as the decree has been specifically asked for on the basis of the site plan placed on the file by the plaintiffs. The dimensions in the site plan are shown to be more than as mentioned in the documents relied upon by the plaintiff. Moreover, it is pertinent to mention that a relief cannot be granted which has not been specifically asked for. 17. As plaintiff has failed to substantiate his case with any substantive evidence on record with regard to the identity and dimensions of the suit property, this issue is decided against the plaintiff and in favour of the defendant."
(3.) AGGRIEVED from the aforesaid judgment and decree of the trial Court, the plaintiffs filed an appeal before the first appellate Court, which was also dismissed. While dismissing the appeal, the first appellate Court observed as under: "15. Be that as it may be, even if, we assumed that the appellants -plaintiffs are in possession of the suit property, the question comes what is their status and source of possession over the suit property even if they are treated as trespassers and then as to whether they are entitled for a decree of injunction against forcible dispossession as projected by the counsel for the appellants -plaintiffs while relying upon State of U.P. versus Maharaja Dharmender Prasad Singh, 1989 AIR (SC) 997 and Krishna Ram Mahale (Dead) by his legal representatives Versus Mrs. Shobha Ram Venkat Rao, 1989 (4) SCC 131 (SC). 16. However, after going through both the authorities and case file, it comes out that in both these cases, the suit land was leased to the plaintiffs and after the expiry of the lease, owner tried to take forcible possession and on those facts, it was held that owner has no right to dispossess such a plaintiff except in due course of law. Thus, it was apparent that initial possession of the plaintiff in both the cases was not illegal and unlawful. Rather they came in possession of the suit property on account of a lease deed and thus, they were not the rank trespassers but a person whose lawful possession turns into unlawful on expiry of lease or license and obviously, such a person cannot be dispossessed except in due course of law. However, in the present case, we are confronting with a party, who is a guilty of suppression of true and material facts and then who is proved to be rank trespasser over the suit property without any lawful means or lawful status as the suit property was never leased out or licensed to the appellants -plaintiffs in any manner. On the contrary, they trespassed the same illegally under the garb that their own plot is situated just adjacent to the suit property. If it is so, the appellants -plaintiffs are trespassers of the second category, where their possession is illegal from the very beginning and as such, they cannot seek the equitable relief of injunction in order to protect their illegal acts especially when they are also guilty of suppression of true facts. As such, both these authorities relied upon by the learned counsel for the appellants -plaintiffs is of no help. Thus, it is held that learned lower Court has rightly declined the injunction to the plaintiffs and there is nothing to interfere with the findings of the trial Court in this regard." ;