IMPORTANT POINT
Even in absence of prayer for decree of declaration, suit simplicitor for injunction is maintainable when there is no cloud over ownership of subject property.

JUDGMENT

This civil second appeal is preferred against the judgment and decree dated 12.10.2018 passed by the learned Additional District Judge, Bhawanimandi, District Jhalawar (for brevity, “the learned Appellate Court”) in Civil Appeal No.04/2016 whereby, while dismissing the appeal, the judgment dated 31.08.2016 passed by the learned Civil Judge, Chaumahla, District Jhalawar (for brevity, “the learned trial Court”) decreeing the Civil Suit No.03/1997 filed by the respondents/plaintiffs (for brevity, “the plaintiffs”) for mandatory and permanent injunction, has been upheld.

2. The relevant facts in brief are that the plaintiffs filed a suit for mandatory and permanent injunction stating therein that they were under ownership and possession of the subject property comprising of a ‘Bada’ (open piece of land). It was alleged that in June 1988, the defendants have installed a gate towards its northern side raising construction of a wall without any authority of law. Therefore, the decree as aforesaid was prayed for.

3. The defendants in their joint written statement, denying the averments made in the plaint, submitted that defendant No.1 was in possession of the subject property for last about 50 years.

4. On the basis of pleading of the parties, the learned trial Court framed six issues including relief. After recording evidence of the respective parties, the learned trial Court decreed the suit vide judgment dated 31.08.2016. The

civil first appeal preferred there against by the appellants/defendants (for brevity, “the defendants”) has been dismissed by the learned Appellate Court vide judgment and decree dated 12.10.2018.

5. Assailing the impugned judgment and decree, learned counsel for the defendants submits that in absence of a prayer for decree of declaration, the suit simplicitor for injunction was not maintainable. He submitted that the suit was also not maintainable on account of non-impleadment of necessary parties. He, therefore, prays that the civil second appeal be allowed, the judgment and decree dated 12.10.2018 be quashed and set aside and the suit filed by the plaintiffs be dismissed.

6. Heard. Considered.

7. While deciding the Issues No.1 & 2, the learned trial Court has recorded a categorical finding that the plaintiffs were able to establish their ownership over the subject property inasmuch as it was purchased from its erstwhile owner Shri Shankar Lal by their ancestors Sohanraj Roopraj through a sale deed. The objection of the defendants as to the sale deed being unregistered and inadmissible in evidence, was negated on the premise that since sale consideration in it was less than Rs.100/-, it was not required to be registered under Section 54 of the Transfer of Property Act, 1882. The documents produced in this regard were presumed to be genuine being more than 30 years old and having been produced from proper custody. With regard to possession of the plaintiffs over it, relying upon the execution proceedings in the Execution Case No.118/2016 wherein, possession of the subject property was handed over to Shri Sohanraj, ancestor of the plaintiffs, it was held that they were in possession. While deciding Issue No.4 pertaining to non-maintainability of suit on account of non-impleadment of other co-owners of the property, a specific finding has been recorded that the suit for injunction could be brought even by any co-owner without impleading the other co-owners as parties. These findings have been affirmed by the learned Appellate Court re-appreciating the evidence on record. After going through the record of the case, this Court is satisfied that the findings are based on evidence led by the respective parties and the settled legal principles.

8. Contention of the learned counsel that

the suit for injunction was not maintainable for want of a prayer for decree of declaration is wholly misconceived. Since, there was no cloud over the ownership of the plaintiffs qua the

subject property, they were not requir