Jitender Singh & Ors v. Ramesh Kumar & Anr

1. The matter has been taken up today as 4.12.2013 was declared holiday on account ofelections.

2. This is a regular second appeal under Section 100 CPC against the order dated 20.4.2011 passed by the learned Additional Senior Civil Judge in R.C.A.No.4/2007.

3. I have heard the learned counsel for the appellants. It has been contended by the learned counsel that the only substantial question of law which arises for consideration is that the suit of the respondents/plaintiffs for permanent injunction itselfwas not maintainable inasmuch as the respondents/plaintiffs had not sought possession of the two rooms in respect of which the 2013:DHC:8599 f appellants/defendants were in possession.

4. In order to appreciate the contention ofthe learned counsel for the appellants, it will be pertinent here to give brief background ofthe case.

5. The respondents/plaintiffs filed a suit bearing No.935/2002 for permanent injunction only against the appellants/defendants. The case which was set up by the respondents/plaintiffs was that their father was the owner and in possession ofHouse No.RZ-46- A/1,New Raj Nagar, Palam Colony,New Delhi having total area of82 14 square yards. It is further alleged that sometime in 1990, two rooms constructed on the said plot ofland were given to the appellants/defendants being the sons of maternal uncle of the respondents/plaintiffs for the purpose ofliving. It has been stated that while staying at the suit premises in the two rooms, the present appellants/defendants erected obstruction in the passage of the house in question leading to the main road. Apart from this, the appellants/defendants demolished the two rooms and wanted to raise a fresh construction which necessitated filing of the suit. The present appellants/defendants contested the suit. A

6. On the pleadings of the parties, following issues were framed "1. Whether the plaintiff is entitled for permanent injunction asclaimedin theplaint? OPP

2. Relief."

7. After hearing the learned counsel for the parties, the learned trial court passed a restraint order in favour of the respondents/plaintiffs and against the appellants/defendants on 12.12.2006 stating that, firstly, the appellants/defendants can neither create obstruction in the user ofthe passageleading to the main road and secondly, that they shall not raise any fresh construction at the suit property.

8. Feeling aggrieved by the aforesaid judgment and the decree, the present appellants preferred an appeal being R.C.A. No.4/2007. After hearing the learned counsel for the parties, the first appellate court vacated the permanent injunction so far as the alleged obstruction in the passage leading to the main road is concerned. The reasons for vacating this permanent injunction was on account ofthe fact that the first appellate court observed that it had not been established before the trial court that there was a passage leading to the main road. So far as the other portion of the permanent injunction which was entailing a restraint on the appellants from raising any fresh construction is concerned,the permanent injunction was maintained.

9. Still notfeeling satisfied by the said partial rejection oftheir appeal, so far as the restraint order against raising fresh construction is concerned, it has been contended by the learned counsel that the suit itselfwas not maintainable as no possession was given.

10. I am afraid that the respondents/plaintiffs were not entitled or necessarily compelled,,to retrieve the possession from the appellants in respect ofthe suit property. It is only when a party seeks a declaration that the consequential relief in terms of Section 34ofthe Specific ReliefActthat the consequential reliefis to be claimed. In the instant case,there was no declaration which was sought by the respondents/plaintiffs and consequently, the question ofseeking retrieval ofthe possession,did not arise.

11. I do not find that the submission which is made by the learned counsel for the appellants raise any question oflaw much \l less substantial question oflaw. Accordingly,the appeal is totally misconceived and the same is dismissed. The trial court record be sent back.

DECEMBER 05,2013 'AA' ^K.SHALI,J, ■'1