JUDGMENT
K.K. Lahoti, J.
1. Plaintiff has filed present appeal challenging the judgment and decree passed by the Court below by which her suit for declaration and permanent injunction dismissed.
2. This appeal was admitted on 12-2-1992 on following substantial question of law:–
“Whether the appellant, as the daughter of Bhuriyabai wd/o Khushilal, would be entitled to a share in the suit property and would for that reason entitled to relief from the Court ?”
3. Learned Counsel for the appellant submits that apart from this two more substantial questions of law are involved in this appeal which are as under :—
(a) Whether in absence of a counter-claim, decree for possession in favour of defendant could be passed ? (b) Whether plaintiff, who is in possession, is entitled decree for permanent injunction against her forcible dispossession, or she could protect her possession until evicted lawfully ?
4. The appellant submits that both the Courts below have found that the appellant is in possession of the land. The possession of the appellant is long and for a considerable period, she is in possession of disputed land. Even if it is held that the father of the appellant Khushilal died prior to 1956 but her mother died in the year 1971 and being the daughter of Bhuriya Bai she was entitled to share in the property. Learned Counsel for the appellant also submits that in view of the fact that she is in possession, decree for permanent injunction ought to have been passed in favour of the appellant. Apart from this learned Trial Court without any counter claim in written statement has granted decree for delivery of possession in favour of defendant which is not sustainable under the law. In view of the aforesaid, this appeal deserves to be allowed and suit of appellant be decreed.
5. Learned Counsel for respondent supported the decree on the ground that appellant will not get any right in the property, after the death of her father Khushilal. The Courts below have rightly dismissed the suit and found that the respondent is entitled for possession.
6. To appreciate the contention raised by the learned Counsel for the parties it is necessary to state facts of this case.
7. Appellant filed a suit for declaration and permanent injunction against respondent, on the ground that defendant No. 2 Halke and defendant No. 3 Saraswati Bai are real brother and sister of appellant. Father Khushilal was owner of agricultural land total area 8.94 acres at Village Mudiakheda Tehsil Budhni District Sehore. Respondent No. 2 is blind since birth. Appellant married to one Udairam with a condition that Udairam will live with her father as Gharjamai and will take care of the agricultural land. On this plaintiff alongwith her husband was residing with her father and was taking care of agricultural land and also maintaining respondent No. 2. Khushilal during his life time, in this regard Khushilal, in the presence of Panch gave Khasra No. 177 area 3.46 acres to plaintiff and her husband. It was in lieu of services rendered by them and remaining land was given to respondent Halkeprasad. This arrangement was accepted by Halkeprasad, Though, Khushilal also wrote a letter in this regard in favour of the appellant, but it is lost. After the death of Khushilal appellant is maintaining respondent Halkeprasad but there was some dispute with him and he started residing separately. Defendant No, 1 to grab the land of defendant No. 2 has got transferred all the lands of defendant No. 2 in his name by a sale deed. No consideration was paid to defendant No. 2. This sale deed was executed on 6-7-1981. The appellant moved an application before the Tehsildar for recording her name over the land. This was allowed on 3-10-1981 in respect of survey No. 177 area 3.46 acres. As the aforesaid land was sold by Halkeprasad in favour of Madanlal, the suit was filed for declaration and permanent injunction. It is prayed that the sale deed executed by defendant No. 2 in favour of defendant No. 1 be declared null and void and plaintiff be declared as Bhumiswami and permanent injunction be issued against defendant restraining him to interfere in her possession.
8. Defendant contested the suit on the ground that Khushilal had not given the land to the appellant or her husband. The averments of plaint that land of Survey No. 177 areas 3.46 acres was given to the plaintiff in lieu of the service rendered by her and her husband to Khushilal was also denied. The defendant took a plea that he has purchased the land from defendant No. 2 by paying Rs. 7,000/- on 6-7-1981 and sale deed was executed by defendant No. 2 in his favour and he is in possession of the land, the suit of plaintiff is liable to be dismissed.
9. The Trial Court framed the issues and after recording the evidence recorded findings that the plaintiff is in possession of the suit land, but Khushilal died prior to 1956 and she is not entitled to any property of Khushilal and only defendant No. 2 succeeded the entire property, and the suit was dismissed. But Trial Court in Paras 14 and 16 of the judgment directed that plaintiff is not entitled to remain in possession of the land on the contrary defendant is owner of the land and is entitled for possession. In the circumstances, while dismissing the suit of the appellant Court below has granted decree against the plaintiff in respect of Survey No. 177 area 3.64 acres of Village Mudiakheda.
10. Learned Counsel for the appellant submitted that there was no counter claim in the case nor the defendant has prayed in the written statement that the defendant No. 1 be handed over the possession of the land, such relief was not asked. The Trial Court erred in granting such relief. The appellant has proved her possession over the land. In the circumstances, appellant is entitled for decree for permanent injunction against the respondent No. 1 not to interfere with her possession till he evicts the appellant by taking recourse of law. He is pressing only this point and in support of this, learned Counsel for the appellant relies on Nair Service Society Ltd. v. K.C. Alexander (AIR 1968 SC 1165).
11. There is substance in the contention of appellant. The Court below has recorded finding that the Khushilal died prior to 1956 and appellant being the daughter of Khushilal will not get any right in the property but she is in possession of the land. This finding has been recorded by the Trial Court in Para 11 of the judgment, but in Para 13 the Trial Court without any counter claim or asking relief directed that the defendant is entitled for possession from the plaintiff as she has no right over the land. This finding cannot be sustained under the law. The Lower Appellate Court has only considered the factum of the title before it. Defendant has not filed any cross objection/suit claiming possession of the land. In these circumstances, the direction of the Trial Court in favour of the defendant is wholly unwarranted, though defendant is free to take recourse of law for taking possession of the land. But without any counter claim or counter suit, the Court below erred in issuing such direction in favour of defendant No. 1. In the circumstances, the judgment and decree passed by the Court below directing the delivery of the possession to the respondent No. 1 is set aside and it is directed that respondent No. 1 will not interfere in possession of the appellant over, land Survey No. 177 area 3.46 acres at Village Mudaikheda till he evicts the appellant by lawful steps.
12. With the aforesaid modification, this appeal is allowed partially. Suit of appellant is decreed partially for permanent injunction against respondents as indicated in Para 12 of judgment, rest suit is dismissed, with no order as to cost.