- (1.) THIS second appeal under Section 100 CPC is directed against judgment and decree dated 19.08.2013 passed by Additional District Judge, Sumerpur, whereby, the appeal filed by the respondents against judgment and decree dated 09.12.2010 has been allowed and suit filed by the appellant has been dismissed. The facts in brief may be noticed thus: the appellant - plaintiff filed a suit for permanent and mandatory injunction against the respondents with the allegation that the plaintiff was in possession of plot No. 23 Nai Abadi, village Ramnagar, regarding which, Patta was issued on 23.04.1961; on 05.09.2003 when plaintiff went to the said plot, the defendants were raising construction on plot No. 24 and threatened to take possession of plaintiff's plot as well; a notice was got issued on 06.09.2003 from the counsel; whereafter, on 09.04.2003 the defendants started raising construction and have raised a 5 ft. high wall; the plaintiff was the owner of the said plot and the defendants have no right to raise construction; it was prayed that by way of permanent injunction, the defendants be restrained from interfering in the possession and the wall marked A to B be removed.
(2.) THE suit was resisted by the defendants and it was claimed that the space where the construction has been raised belong to the defendants. The trial court framed five issues; on behalf of the plaintiff - three witnesses were examined and six documents were exhibited; on behalf of the defendants ­ five witnesses were examined and two documents were exhibited. After hearing the parties, the trial court came to the conclusion that the defendants have raised a 5 ft. wall on the plot belonging to the plaintiff and the plea raised by the defendants regarding the plot belonging to Kan Singh was decided against the defendants and, consequently, decreed the suit, whereby, the defendants were restrained from raising any construction and interfering with plaintiff's possession; further they were also directed to remove the construction within a period of two months. Feeling aggrieved, the defendants filed first appeal. The first appellate court came to the conclusion that as per the case set up by the plaintiff, the defendants were in possession of plaintiff's plot of land and without seeking possession, the plaintiff could not have sought the permanent and mandatory injunction qua the piece of land, which was in possession of the defendants and, consequently, dismissed the suit filed by the plaintiff. It is submitted by learned counsel for the appellant that the appellate court fell in error in dismissing the suit filed by the plaintiff; the suit for permanent and mandatory injunction without even seeking possession of the suit property was maintainable and the appellate court clearly fell in error in holding the same against the plaintiff.
(3.) I have considered the submissions made by learned counsel for the appellant and have gone through the judgments as well as the record of both the courts below. From a perusal of the plaint and the relief sought therein, it is apparent that the plaintiff came out with the case that the defendants have trespassed on the plaintiff's land and have raised construction of a 5 ft. high wall and, consequently sought mandatory injunction for removal of the wall as well as a permanent injunction against the defendants not to interfere in his possession; the averments made in the plaint alongwith site map filed therewith clearly indicated that the defendants had already raised construction of the wall and, therefore, were in possession of the land, which was claimed by the plaintiff to be belonging to him and which fact was found by the trial court in his favour.;