Point of Law: Civil Law - Dismissal of suit for permanent injunction and restoration of possession in suit property - provision of order VII, Rule II(b) that a Court has to come to a finding that relief claimed has been undervalued, which necessarily means that Court is able to decide and specify proper and correct valuation of relief and, after determination of correct value of relief, requires plaintiff to correct his valuation within a time to be fixed by Court.

JUDGMENT :

1. This second appeal preferred by the appellant/plaintiff (now his Lrs.) was admitted for hearing on 26/08/2020 on the following two substantial questions of law :-

“1. Whether both the Courts below are justified in denying the relief of restoration of possession in favour of the plaintiff on the basis of Ex-D/1 allegedly executed by the plaintiff in favour of the defendants, by recording a finding which is perverse and contrary to the record ?

2. Whether both the Courts below are justified in dismissing the suit for want of Court fee ?”

[Parties will hereinafter be referred to as per their status given and ranking shown before the trial Court.]

2. The sole plaintiff – Murlidhar initially filed a suit for permanent injunction for restraining defendants from interfering with his possession in the suit property shown in Schedule 'A' appended with the plaint. Thereafter, during the pendency of the suit, by way of amendment in the plaint, he also inserted the relief of restoration of possession with respect to the suit property shown in Schedule 'B' appended with the plaint.

3. It is admitted position on record that plaintiff as well as defendants No. 1 to 3, all are descendants of same ancestors and the suit property has already been partitioned between the ancestors of plaintiff and defendants. The suit property was subjected to proceedings under Section 145 of CrPC at the instance of defendants No. 1 to 3 and ultimately, final order was passed by the Additional Session Judge, Raigarh.

4. It is the case of the plaintiff that he is the owner and title-holder of the suit property shown in Schedule 'A' of the plaint admeasuring 6.418 hectares on which defendants No. 1 to 3 have started creating illegal interference, as such, relief of permanent injunction be granted in his favour and he is also entitled for relief of restoration of possession on the suit property shown in Schedule 'B' of the plaint admeasuring 1.781 hectares.

5. Defendants No. 1 to 3 filed their written statement and took a specific stand that agreement to sale has been entered into by the plaintiff and defendant No. 1 on 01/07/2000 (Ex. D/1) by which plaintiff has agreed to alienate the suit property shown in Schedule 'B' of the plaint in favour of defendant No. 1, as such, plaintiff is not entitled for decree for possession in the suit property shown in Schedule 'B' of the plaint and his suit deserves to be dismissed.

6. Learned trial Court, after appreciation of oral and documentary evidence on record, held that though plaintiff is the owner and title-holder of the suit property shown in Schedule 'A' of the plaint, but he is not entitled for decree for possession in the suit property shown in Schedule 'B' of the plaint as he has already agreed to alienate the said suit property in favour of defendant No. 1 by virtue of agreement to sale dated 01/07/2000 (Ex. D/1) and accordingly dismissed the suit vide judgment and decree dated 28/02/2007 against which appellant/plaintiff preferred an appeal, but learned first appellate Court too affirmed the judgment and decree of the trial Court and dismissed the appeal vide impugned judgment and decree dated 07/10/2009. Feeling aggrieved, the appellant/plaintiff (now his Lrs.) has preferred the instant appeal which has been admitted by formulating two substantial questions of law which have been set out in the opening paragraph of the judgment.

7. Mr. R.N. Pusty, learned counsel for the appellant/plaintiff, would submit that both the Courts below have concurrently erred in relying upon Section 53-A of Transfer of Property Act, 1882 and holding that defendant No. 1 is entitled to retain possession over the suit property shown in Schedule 'B' of the plaint as necessary ingredients of Section 53-A are absolutely missing. He would also submit that there is no pleading of willingness and readiness on the part of defendant No. 1 and he never issued notice to get the sale deed (Ex. D/1) registered and he would rely upon the decisi