Misconstruing the nature of the suit and wrongly assuming it to be a declaratory suit can lead to an incorrect judgment.

JUDGMENT :

N.V. Ramana, J.

In this appeal the unsuccessful defendant impugned the judgment and decree passed by the High Court of Jharkhand at Ranchi in second appeal in 273/2003 dt. 26.8.2004, [Ed.-Reported in 2004 (4) JLJR 421.] whereby the High Court has confirmed the concurrent findings of the courts below by decreeing the suit.

2. A close scrutiny of the plaint is necessary for adjudication of the dispute involved in the present appeal. The plaintiff has filed title suit no. 5 of 1992 on the file of the Munsif Court at Seraikella. In the plaint after the cause title, he stated that the suit is for declaration of title, confirmation of possession and permanent injunction and the suit is valued at Rs. 20,000/-. Then the plaint starts with the description of facts that the suit schedule property belongs to Raja Adithya Pratap Singh Deo of the estate of Seraikella and subsequently it is purchased by Kumar Subodh Singh by registered sale deed dated 24.8.1990, he in turn sold the suit schedule property to the plaintiff by way of registered sale deed dt. 21.10.1990 for a consideration of Rs. 20,000/- and ever since than he has been in possession of the property by constructing a residential building. The defendant has sent notice dated 4.1.1992 asking the plaintiff to quit and deliver vacant possession of the suit land and for payment of amount and further threatened the plaintiff to dispossess him from the land. Hence he came up with the present suit seeking the relief of permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiff.

3. The defendant has filed the written statement alleging that the suit is barred under the principles of waiver, estoppel, acquisition, under Section 38 of Specific Relief Act and on the ground of not impleading the proper and necessary parties to the suit, and also on the ground of not issuing the notice under Section 62 and 92 of the BSHB Act. Further it was stated that the mere suit for perpetual injunction without claiming any relief of declaration as to the entry in the record of right, declaration of title and for confirmation of possession, is not at all maintainable either in law or in facts. In fact, the plaintiff in the suit is indirectly seeking the declaratory relief which is not permissible.

4. It is further averred in the written statement that the plaintiff's vendor has no right and title to the property as the property is in possession of the defendant since 1965 and prior to that it was in possession of the State of Bihar. The property was acquired through land acquisition proceedings and possession was delivered way back in 1965 and hence sought dismissal of the suit.

5. We have gone through the judgment of the trial Court, 1st Appellate Court and the High Court. The Courts below have entertained the suit as if the suit is filed for declaration of title which is evident from the judgments wherein they have categorically observed that the Suit is for declaration of title, confirmation of possession and also for perpetual injunction. The trial Court has framed the issue with regard to the title and gave a finding that plaintiff has proved his title and possession over the suit land and constructed a house over the same, as there is interference, he has come up with the present suit, as such he is entitled to maintain the suit in the present form. The trial Court has framed several issues and held all the issues in favour of the plaintiff but only granted the relief of permanent injunction to the plaintiff. The unsuccessful defendant approached the Appellate Court and the appeal was dismissed. In the second appeal, the High Court also went ahead with the same assumption that it is a declaratory suit and dismissed the appeal by observing that both the Courts concurrently found that plaintiff has valid right, title and interest.

6. We have heard the learned counsel on either side and perused the material available on record. We a