A suit for possession and injunction without seeking declaration with regard to the title of the suit plot is not maintainable in the eye of law, when the title of the plaintiffs is not clear.

1. - The first appeal filed under Section 96 of CPC by the appellants defendants arises out of the judgment and decree dated 18.07.1995 passed by the Additional District Judge No.3, Jaipur City, Jaipur (hereinafter referred to as 'trial Court') in Civil Suit No. 24/1995 whereby, the trial Court has decreed the suit of the plaintiffs-respondents seeking possession and mandatory injunctions in respect of the suit property.

2. The short facts giving rise to the present appeal are that the respondents-plaintiffs had filed the suit seeking possession of the suit property as well as for the mandatory injunction alleging inter-alia that the suit plot situated at Madhav Nagar Colony, opposite Durgapura, Railway Station was purchased by the plaintiffs from the defendant No.4 Madhav Nagar Grih Nirman Sahkari Samiti Limited, Jaipur and that the appellants-defendants taking undue advantage of the absence of the respondents- plaintiffs had encroached upon the said land and put up illegal construction thereon. According to the respondents-plaintiffs, they had also given notice to the appellants-defendants for handing over the possession of the said plot, however, the appellants did not hand-over the possession and hence, the suit was filed. The said suit was resisted by the appellants-defendant Nos. 1 and 2 by filing written statement denying the allegations made in the plaint and further contending inter alia that the suit plot was allotted to the said defendants by Tagore Nagar Girh Nirman Sahkari Samiti Limited on 20.07.1986 and that the said society had also handed over the possession of the said plot, on which the said defendants had put up the construction. It was also contended that the dispute raised by the respondents-plaintiffs being covered under Sections 75 and 137 of Rajasthan Cooperative Societies Act, the civil court had no jurisdiction to entertain the suit. The defendant-respondent No. 4 Madav Nagar Grih Nirman Sahkari Samiti Limited, Jaipur had also filed the written statement contending inter alia that the suit plot was allotted by the said society to the plaintiffs and the possession thereof was also handed over to the plaintiffs :

3. The trial Court from the pleadings of the parties had framed the following issues:-

"1- vk;k okni= ds [k.M la[;k&1 esa of.kZr Hkw[k.M ek/ko x'g fuekZ.k lgdkjh lfefr dk Fkk tks oknh dks fnukad 30-10-74 dks vkoafVr fd;k x;k gSA

2- vk;k oknh us mijksDr Hkw[k.M ds d'f"k :ikUrj.k 'kqYd o mi foHkktu 'kqYd tek djk;s gSa] ;fn gkWa rks nkos ij izHkkoA

3- vk;k izfroknh la[;k&1 o 2 us oknxzLr Hkw[k.M ij vukf/kd'r dCtk dj fy;k gS vkSj oknh izfroknh dks csn[ky djk ikus ds vf/kdkjh gSA

4- vk;k oknh LFkk;h fu"ks/kkKk dks lgk;rk ikus ds vf/kdkjh gSa ;fn gkWa rks fdl dnjA

5- vk;k oknh 200@& :0 ekgokj dh nj ls oklykr ikus ds vf/kdkjh gSaA

6- vk;k U;k;ky; dks nkok lquus dk vf/kdkj ugha gSaA

7- lgk;rkA"

4. The trial Court considering evidence on record and the submissions made by the learned counsels for the parties, decreed the suit of the respondents-plaintiffs directing the appellants-defendants No. 1 and 2 to remove the construction put up by them on the plot and hand over the possession of the suit plot to the plaintiffs, vide the judgment and decree dated 18.7.1995. Being aggrieved by the same, the appellants-defendants have preferred the present appeal.

5. It has been sought to be submitted by the learned counsel Mr. S.G. Gupta for the appellants that suit of the respondents-plaintiffs for possession and mandatory injunction without seeking declaration in respect of the suit property was not maintainable in the eve of law. He further submitted that there was variance in the pleadings and evidence led by the plaintiffs so far as handing over of the possession of the suit property was concerned. He also submitted that the appellants were allotted the suit plot by Tagore Nagar Girh Nirman Sahkari Samiti Limited as per the allotment letter and the respondents-plaintiffs had no right over the suit p