Back
2006 Supreme(Raj) 2141
Rajasthan High Court, Jaipur Bench
Honble NARENDRA KUMAR JAIN, J.
Gopal - Appellant
Versus
Raghuveer - Respondents
S.B. Civil Second Appeal No. 165 of 1984
Decided On : August 18, 2006
G.K. Garg with Sangeeta Sharma, for defendant- Appellant R.P. Agarwal for B.P. Agarwal, for Plaintiff- Respondent
Headnote:(a) C.P.C., Sec. 100 – Entitlement of respondent to contend at the time of hearing of appeal, admitted ex-parte and questions of law formulated in his absence that the appeal does not involve any substantial questions of law and the substantial questions of law so formulated are relating to question of fact only – Held – u/S. 100(5) C.P.C. the respondent can argue in such circumstances that the case did not involve the questions of law so framed. (Para 13)(b) C.P.C., Order 7 Rule 7 – Relief of be specifically stated – Whether in a suit for declaration and permanent injunction, relief of possession could be given without averment in the plaintiff? – Held – As per Order 7 Rule 7 of CPC it is necessary that every plaint shall state specifically the relief which the plaint claims either simply or in alternative, and it shall not be necessary to ask for general or other relief which may always be given as the court may think just to the same extent as if it had been asked for – Lower and appellate courts are empowered to mould relief and grant decree as required by merits of case – It is not necessary to make each and every prayer in the plaint but if main relief has been prayed for in the plaint then ancillary reliefs can always be granted by the Courts. (Paras 23 & 24)
(2). This Court, while admitting the second appeal on 7th of August, 1984, formulated the following questions of law:-
``1. Because the learned Court below made a mistake of law and gave perverse finding that since defendant could not prove that Bhoti had any other house in Helna, except the house in question, therefore, it is fully proved that the Gharghuda in the alleged will was in respect of the house in question.
2. Whether in a suit for declaration and permanent injunction relief of the possession could be given without averment in the plaint?
(3). Brief facts giving rise to this second appeal are that the plaintiff-respondent Raghuveer filed a suit for declaration and permanent injunction in the lower Court against defendant- appellant Gopal, wherein it was pleaded that Mst. Bhoti was aunt of the plaintiff. She executed a registered will dated 30.5.1975 in respect of her movable and immovable property in favour of the plaintiff. The description of the disputed property, i.e. piece of land, was given in para 4 of the plaint. It was further pleaded that the defendant has no right whatsoever in the property, in dispute. On 29.1.1976 the defendant started digging the foundation to raise construction of a house over the disputed piece of land, therefore, it became necessary for the plaintiff to file the present suit to declare that the disputed property belongs to the plaintiff and the plaintiff is the actual owner-in possession of the property, in dispute, and the defendant be restrained in the peaceful possession of the plaintiff and not to raise any construction over it. It was also pleaded that n injunction in mandatory form may also be issued directing the defendant to demolish the construction raised during the pendency of the suit.
(4). The defendant filed his written statement wherein he denied the contents of the plaint. It was pleaded that Mst. Bhoti did not execute any will dated 30.5.1975 in favour of the plaintiff and the same was not got registered. It was also pleaded that the property, in dispute is an ancestral property of the defendant and he is in possession of the same since the time immemorial, therefore, it was prayed that the suit of the plaintiff be dismissed.
(5). The learned lower Court, on the basis of the pleadings of the parties, framed six issues. Issue No. 1 is as to whether Mst. Bhoti was the owner of the property, in dispute, or not. Issue No. 5 is whether the property, in dispute, was ancestral property of the defendant. Issue No. 2 is in respect of execution of the will dated 30.5.1975 and whether the plaintiff is the owner of the disputed property on the basis of the said will. Both the parties leg their evidence in support of their cases. The learned lower Court, vide its judgment and decree dated 11.1.1983, decreed the suit of the plaintiff and declared that the plaintiff is the owner of the property, in dispute, and the defendant is not the owner of the property, in dispute. The defendant was directed to remove his `chhappar, articles as well as possession from the disputed property within a period of two months and to handover the possession of the same to the plaintiff. The defendant was also restrained by way of injunction not to interfere in the peaceful possession of the plaintiff and for not raising any further construction on it. The first appellate Court affirmed the finding of the lower Court in respect of all the issues and dismissed a
