Point of Law: Civil Suit - Suit for injunction and declaration - Nature of claims made by both the parties against each others, the issue of possession cannot be decided without conducting an inquiry as to issue of title - Approach of the Trial Court cannot be said to be a judicious approach.

JUDGMENT :

Heard.

2. This is an appeal preferred by the defendant against the judgment and decree passed by the Court of Ad-hoc Additional District Judge, Washim on 04/02/2005. By the said judgment, the First Appellate Court allowed the appeal and decreed the suit. The defendant is restrained from interfering with the possession of the plaintiff over the suit land.

3. The Trial Court has dismissed the suit for the reason that plaintiff could not prove his possession over the suit land and also for the reason that simpliciter suit for permanent injunction is not maintainable. Whereas, the First Appellate Court reversed those findings and held that plaintiff is having better title than that of defendant. While admitting the appeal on 20/07/2005, this Court has framed following substantial questions of law:

“Whether the suit for permanent injunction without claiming the relief of declaration is maintainable in view of Section 34 of the Specific Relief Act, 1963?”

4. This substantial question of law was framed after hearing both the sides. In the regular course when the appeal had come up for hearing, learned Advocate for the respondent withdrew the power on 19/01/2021. This Court has issued notice to respondent. Though it was served, respondent had chosen to remain absent. Hence, this Court is left with no alternative but to hear the learned Advocate Shri Bhuibhar for the appellant. With his assistance, the record is produced. He relied upon three of the judgment.

5. His main thrust of argument is non-maintainability of the simpliciter suit for injunction. He mean to say that the plaintiff ought to have prayed for declaration considering line of defence taken in a written statement. For appreciating this objection, it will be necessary to understand few facts. From the pleadings of both the sides, the following facts emerge.

Plaintiff- Bhaurao is the son of one Shrawan. The said Shrawan was having a brother by name Shriram. He is the sole defendant. The name of their father is Govinda. The genealogical tree as follows:

Govinda (1978)

Shrawan (1993) Shriram

Bhaurao (Defendant)

(plaintiff)

Filing of the suit

6. The suit property is Gat No.64 admeasuring 0.59 R situated at village Singdoh, Taluka Manora, District Washim. The suit land is an ancestral property consisting of the shares of Govinda and his two sons Shrawan and Shriram. Prior to consolidation, the suit land was referred to as Survey No.101. Apart from that, there is also a land bearing Survey No.134. During the lifetime of father-Govinda, in the year 1976, there was an oral partition. The distribution as below:

Shrawan (father of plaintiff) Shriram (defendant) Govinda (father)

1.55 R from Survey No.134/2 1.20 RAJ SARATE

from Survey No.134/2 0.59 R from Survey No.101

Father Govinda expired in the year 1978. He was being looked after by his son Shrawan (father of plaintiff). Father-Govinda gave this 0.59 R i.e. suit land to Shrawan, father of plaintiff. This is the subject matter of the suit. When defendant tried to obstruct possession of plaintiff over suit in the month of June, 1995, plaintiff filed a suit for permanent prohibitory injunction.

Written Statement

7. The theory of oral partition is not accepted by defendant. According to him, he along with brother Shrawan and father-Govinda sold away 3 acres of land out of Survey No.134/2 to one Uttam Gawande. Remaining land remained joint till the lifetime of father-Govinda. After the death of father-Govinda, both the brothers have partitioned the land and 0.30 R from Survey No.101 i.e. Gat No.64 came to the share of defendant. He has tried to offer an explanation that the name of his brother Shrawan has appeared on 7/12 extract due to mistake while carrying out consolidation proceedings.

Outcome of suit

8. On the background of above pleadings, the Trial Court has framed the issues. Both the parties adduced oral as well as documentary evidence. The plaintiff examined himself. Whereas, the defendant examined himself and one Prith