Judgement Key Points

Sharma, J—This is an appeal against the appellate judgment and decree of the learned Civil Judge, Sojat in a suit for perpetual injunction and damages against the defendant respondents. The Plaintiffs suit was that certain plots had been let out by him to the defendants No. 2 to 7 and they were irrigated by a well known as Kirawa on the nutskirts of the village Siryari. The defendants executed a deed of release in favour of the plaintiff on Baisakh Sudi 15th Smt. 2005. In accordance with that release deed, he handed over possession of the plots and the well in dispute to the plaintiff. The defendants, however, subsequently interfered with the irrigation of the plots in dispute from the well in dispute. It was prayed that the defendants be restrained by a perpetual injunction from interfering with the plaintiffs irrigation of the filed from the well in dispute and that Rs. 20/- be awarded by way of damages. This suit was filed in the court of the Munsiff, Sojat on the 31st of May, 1949.

2. The defendants filed a written statement. All the defendants, excepting Krishna defended the suit. They denied having executed any deed of release in favour of the plaintiff and having made over possession of the plots and the well to the plaintiff. Learned Munsiff framed several issues and parties production their evidence. During the pendency of the suit, the plaintiff applied for amendment on the 9th of March, 1951 praying that the prayer for possession of the property in dispute be added in the plaint. Learned Munsiff found the application for amendment very much belated. He consequently rejected the application for amendment and proceeded to decide the suit on the plaint, as it stood. He found that from the evidence, it was proved that the plaintiff was not in possession of the property in dispute. On this ground alone, he refused the prayer for injunction as well as for damages. As regards the execution of the deed of release, he held that it had been executed by the defendant.

3. The plaintiff went in appeal and the application for amendment was pressed before the lower appellant court also. Learned Civil Judge, who heard the appeal, does not appear to have been inclined to reject the prayer for amendment on the ground of its having been made late, but he maintained the order of dismissal on the application on the ground that if the amendment prayed for be made, the jurisdiction of the civil courts would be ousted. On the evidence, he held, that the plaintiffs were not in possession of the property in dispute and consequently held that the suit for injunction only was not maintainable in the circumstances of the case. The judgment of the learned Civil Judge is dated the 12th of December, 1953 and it is against this judgment and decree of the learned Civil Judge that the plaintiffs have come in second appeal.

4. I have heard Shri Manakmal on behalf of the plaintiff appellants and Shri Kishore Singh on behalf of the defendants respondents.

5. Mr. Manakmal at first argued that the finding of both the lower courts that the plaintiff was not in possession of the property in dispute was erroneous. This argument of his cannot be sustained as both the courts have given a finding of fact on a consideration of evidence and therefore, this could not be justified in reversing the concurrent finding of the lower courts in this respect.

6. Mr. Manakmal next argued that even though the plaintiff be not in possession of the property in dispute, the suit for injunction was maintainable. He referred to a ruling of the Bombay High Court in the case of Fakirbhai Bhagwandas vs. Maganlal Huri-bhoi (1) and another of the Madras High Court in the case of Muthayyan Swami Natha Sastrial vs. S. Narayan Swami Sastrial (2). I have gone through these rulings and find that they are not helpful to the plaintiff. In the Bombay Case (1), it was held that:—

"It is not necessary for the person claiming injunction to prove his title to the suit land; it would suffice if he prov

Click Here to Read the rest of this document