BALIA, J. - (1.) THIS is a defendant's second appeal who has been unsuccessful in both the courts below.
(2.) BRIEF facts giving rise to the second appeal may be stated. Smt. Ghisi Bai wife of Ghisa Lal filed a suit against the present appellant Mohan Lal on 5. 3. 1986, on the averments that the plot in question belongs to her husband Ghisalal as an allottee of State Government in 1975. During her husband's absence, she was in possession of and looking after the plot in question. According to the plaint allegation on 2. 03. 1986, the defendant has started digging foundation from east to west and has constructed about 6 feet wall on the eastern side of plot and she is apprehending that by completing the construction, the defendant wants to include the plot in boundary of his house and deprive the plaintiff of its possession. For the present purpose, para 3 of the plaints and the relief claimed by plaintiff's is hereby reproduced below: *********** The defendant denied that the plot belongs to Ghasi Lal and claimed his own ownership and possession. The trial court found that the plot in question belongs to plaintiffs husband and plaintiff continued to be in possession of it, under issue No. 1. Issue no. 3 relating to the defendant's ownership and his continued possession was decided against him. The defendant raised a plea that plaintiff was dispossessed before filing of the suit hence suit for mere injunction was not maintainable. The trial court held that in para (1) (B) of the relief, the plaintiff has claimed possession and therefore, this plea of the defendant is not acceptable. The trial court was also of the view that separate relief for possession was not necessary where the plaintiff was dispossessed during pendency of suit and in that event court had power to grant relief for possession. The another contention which was raised before the trial court by the defendant was that the suit property belongs to husband of the plaintiff and plaintiff was not entitled to maintain the suit in her own name. This issue was also decided against the defendant and the suit of the plaintiff was decreed and decree for possession and injunction was granted in favour of the plaintiff. Aggrieved with the judgment and decree of the trial court dated 19. 5. 1988, the defendant preferred appeal before the Addl. District Judge, Bhilwara. Before the appellate court, the finding about the fact that the defendant has tress-passed over the plot in dispute and raised construction over it , was not disputed. However, the defendant raised the same contentions before the First Appellate Court that suit for injunction could not have been maintained in absence of a relief for possession and that suit in the name of Ghisi Bai was not maintainable when the title of the property vested in her husband. On both the contentions the findings of the trial court were affirmed and appeal was dismissed. The decree passed by the trial court was maintained.
(3.) AGGRIEVED with the aforesaid judgment and decree, defendant has preferred this second appeal. This Court issued a show cause notice, why the appeal be not admitted and allowed. This is how, this appeal has come up for final disposal today. I have heard learned counsel for the parties. Learned counsel for the appellant in the first instance, raised the contention that from the reading of the plaint it is apparent, that plaintiff was dispossessed at least to the extent, the foundation was dug and wall was constructed on the eastern side of the plot on the date of filing of the suit and therefore, in the absence of any prayer for possession no suit could have been filed for mere injunction. ;