Point of Law: Subsection (2) of Section 40 of Specific Reliefs Act provides that no relief for damages shall be granted under this section unless plaintiff has claimed such relief in his plaint.

JUDGMENT :

SATYEN VAIDYA, J.

1. By way of instant appeal, appellants have assailed judgment and decree dated 12.5.2008, passed by the learned District Judge, Mandi, District Mandi, H.P. in Civil Appeal No. 28 of 2007, whereby judgment and decree dated 20.1.2007, passed by learned Civil Judge (Junior Division) Court No. 1, Mandi, in Civil Suit No. 35 of 2004 was affirmed.

2. Parties hereafter shall be referred by the same status as they held before learned trial Court. Predecessor-in-interest of the appellants was plaintiff and respondents were the defendants.

3. The suit land comprised in khata No. 23/20, khatauni No. 34, khasra No. 3176/2688/2451, measuring 2-13-0 bighas, situated at Mohal Kummi, Illaqua Balh, Tehsil Sadar, District Mandi, H.P was joint between plaintiff, defendant No. 1 and other co-sharers. Defendant No. 1 had acquired a share,in the suit land, to the extent of 0-2-2 bighas by way of purchase from plaintiff. The other co-sharers had also purchased their respective shares in the suit land from plaintiff and had raised constructions thereon.

4. Plaintiff filed a suit for permanent prohibitory injunction, seeking thereby to restrain the defendants from digging and raising construction upon any part of the suit land till its partition and separation. It was also prayed that in case defendants succeed in raising the construction during pendency of the suit, same be ordered to be demolished and suit land be restored to its original vacant position through mandatory injunction. Plaintiff filed the suit on 14.7.2004 alleging inter-alia that defendants without getting their share partitioned had started raising construction w.e.f. 4.7.2004. It was also alleged that the construction being raised by defendants was on land which was in excess of their share.

5. Defendants contested the suit. It was submitted that defendant No. 1 had purchased the land from plaintiff. As per defendants, the plaintiff had sold about fifteen biswas of land out of the suit land to various persons, who had already raised their respective buildings. The defendants further maintained that plaintiff had entered into an agreement to sell with them and had handed over the specific portion out of the suit land to them. The sale deed was finally executed and registered between the parties on 8.7.1996. Defendants had raised the construction during 1996-97, which was complete in all respects before filing of suit.

6. On the basis of pleadings of the parties, the learned trial Court framed following issues:

“1. Whether the defendants are raising construction over the valuable portion of joint suit land as alleged? OPP

2. Whether the plaintiff is entitled for the relief of mandatory injunction, as prayed for? OPP

3. Whether the plaintiff is stopped from filing the present suit by his own act and conduct? OPD

4. Whether the suit is bad for non-joinder of necessary parties as alleged? OPD

5. Whether the suit of the plaintiff is not maintainable? OPD

6. Relief.”

All the issues were decided in negative and the suit of the plaintiff was dismissed. Learned trial Court held that the plaintiff had failed to identify the land on which, the defendants had raised construction. As per learned trial Court, without demarcation, such fact could not be proved. It was also held that the plaintiff could not prove that defendants had raised construction after filing the suit. Another factor that weighed with learned trial Court was that the plaintiff had already sold different parcels of land to different persons out of the suit land and such persons had raised their respective buildings. Since the plaintiff had not objected the construction raised by other purchasers of plots of land from plaintiff without partition of land, he could not legitimately question the right of defendants to raise construction.

7. Plaintiff assailed the judgment and decree passed by learned trial Court in First Appeal under Section 96 of the Code of Civil Procedure but remained unsuccessful. Learned Lower