JUDGEMENT

This first appeal has been filed by the appellant/defendant challenging the judgment and decree dated 31.01.2005 passed by 9th Additional District Judge, Jabalpur in Civil Suit No.66-A/04 whereby learned trial Court decreed the suit of the respondent 1/plaintiff filed initially for permanent injunction and thereafter, by way of amendment, relief of possession after removal of construction of house raised by defendant 1 was also sought.

2. In short, the facts of the case are that the respondent 1/Gulab Chandra Jain initially instituted a suit for permanent injunction with regard to land khasra no.353 area

0.08 hectare situated in Village Kundam with the allegations that the defendant 1 after taking possession over the disputed land is trying to dig foundation as shown in red ink in the plaint map as A,B,C,D and upon protest, she did not care. Thereafter, by way of amendment, the plaintiff amended the plaint and contended that in the light of denial of title made in the written statement, it has become necessary for the plaintiff to seek declaration of his title and the defendant 1 has no right to raise any construction on the land and the plaintiff is entitled to get possession from the defendant 1. By amending para 6 of the plaint, plaintiff valued the suit for declaration of title at Rs.51,000/-, for permanent injunction Rs.200/- and for mandatory injunction, suit was valued for Rs.300/-. By making further amendment in para 6(b), it is alleged that the defendant 1 has raised construction during the suit and valued the suit for this relief for Rs.51,000/-.

However, no relief of declaration of title over the land in question has been claimed and only the relief of possession of the land after removal of the construction of house was claimed. It is also clear that in the entire plaint, no averment has been made with regard to purchase of land by plaintiff-Gulab Chandra Jain from Jharru and Lagna vide registered sale deed dated 21.10.1975 (Ex.P/1) and in para 1 of the plaint, title has been claimed on the basis of revenue entry/khasra of the year 1993-94 (Ex.P/3), in which name of Gulab Chandra Jain is recorded over survey no.353 area 0.08 hectare. Similar entries are Ex.P/5 and P/6.

3. The defendant/appellant appeared and filed written statement denying the plaint allegations and contended that defendant has not raised any construction over the land of plaintiff but she is in possession of the land of her ownership and plaintiff is not entitled for any declaration and she has also not raised any construction during the pendency of suit and plaintiff is not entitled for decree of mandatory injunction or of possession. The suit has been filed just to harass the defendant, who is a widow and poor lady. It is contended that before 9th Civil Judge Class-I, Jabalpur, Commissioner/Tahsildar Kundam submitted its report, in which it has been observed that the land of survey no.362/2 area 0.19 hectare is recorded in the name of defendant and she is in possession.

As such, the defendant contended that the plaintiff is not entitled for any relief.

4. On the basis of pleadings, learned trial Court framed four issues on 14.02.2003 and later on three additional issues were also framed on 07.12.2004 and recorded evidence led by the parties. Thereafter, learned trial Court has vide its judgment and decree dated 31.01.2005 held that the plaintiff is owner of disputed land khasra no. 120 (old no. 353) area 0.08 and during pendency of the suit the defendant has taken possession and raised construction. Consequently, learned trial Court held that the plaintiff is entitled for possession of the land after removal of construction of house.

5 . Learned counsel for the appellant submits that the learned Court below has committed illegality in holding the plaintiff to be owner of the suit land Khasra no.120 (new no.353) area 0.08 hectare whereas the plaintiff purchased land khasra no. 120 area 0.057 hec