JUDGMENT
R.K. Nehru, J.
1. This Judgment disposes of R.S.A. Nos. 204 and 523 of 1993.
2. Two brothers, namely, Balbir Singh and Jagir Singh, filed civil suits bearing No. 271-1 of 27.5.88/23.5.90 and 270-1 of 16.5.88/90, respectively, for permanent injunction restraining each other from disturbing their exclusive possession over the plot in dispute measuring 12 marlas situate at village Manawan. Both these suits were dismissed by the trial Court on November 24, 1990 holding that neither of the parties was in exclusive possession of the disputed property and that they should be deemed to be in joint possession thereof by operation of law. Aggrieved against the Judgment and decree of the trial Court, both the brothers filed Civil Appeal No. 5 of 1991 and Civil Appeal No. 281 of 1990 respectively. The same were disposed of by the first appellate Court by a common Judgment dated November 13, 1992. The first appellate Court reversed the Judgment and decree of the trial Court in so far as it had dismissed Civil Suit No. 270-1 of 16.5.88/16.5.88/90 (giving rise to Civil Appeal No. 281 of 1990) but it decreed the suit filed by Jagir Singh (giving rise to Civil Appeal No. 5 of 1991) holding that he was in exclusive possession of the disputed property and was disposed by Balbir Singh (appellant in the appeals and plaintiff in Civil Suit No. 271-1 of 27.5.88/90) during the pendency of the suit. It accordingly passed a decree for mandatory injunction in favour of the plaintiff in Civil Suit No. 270-1 of 16.5.88/23.5.90 and directed the defendant in the suit, namely, Balbir Singh, to restore the possession to him. The Judgment and decree in Civil Suit No. 271-1 of 27.5.88/90 filed by Balbir Singh was affirmed. Balbir Singh has challenged the Judgment and decree of the first appellate Court through these two regular second appeals.
3. The questions arising for determination are whether the sole respondent (plaintiff in Civil Suit No. 271-1 of 16.5.88/23.5.90 and defendant in Civil Suit No. 271-1 of 25.5.1988/90) was in exclusive possession of the property in dispute and whether the first appellate Court was justified in passing a decree for mandatory injunction in his favour, more particularly when the relief was not claimed in the plaint.
4. The first appellate Court, on appraisal of the documentary and the oral evidence, came to the conclusion that the respondent was in exclusive possession of the plot in dispute at the time of filing the suit and that the appellant succeeded in recovering physical possession of the plot in dispute during the pendency of the suit. In arriving at this conclusion, it tool into consideration the admission of the appellant that he had been residing at Chandigarh for the last 10/12 years. It also took note of the fact that in previous litigation between the predecessor in interest of the parties and the plaintiff In Civil Suit No. 270-1 of 16.5.88/23.5.1990 (respondent in the appeals) and one Smt. Tej Kaur, the respondent had appeared as a witness in that suit and asserted his and his father’s exclusive possession over the disputed property. The finding arrived at by the first appellate Court is essentially a finding of fact based upon evidence and no fault can be found with it.
5. It is correct that the plaintiff-respondent has only sued for permanent injunction for restraining the appellant from interfering in his possession over the disputed property, but during the pendency of the suit he was dispossessed from the disputed property. The first appellate Court, as observed earlier, found on the basis of evidence that the plaintiff-respondent was in possession of the disputed property at the time of institution of the suit, viz. Civil Suit No. 270-1 of 16.5.88/23.5.1990 and that he was dispossessed during the pendency of the suit. In view of these findings, it was permissible for the first appellate Court to modify the relief under Order 41, Rule 33, Civil Procedure Code. If it had not modified the relief, it would have permitted the appellant, who had taken the law in his own hand by taking its forcible possession, to retain the same. The first appellate Court was justified in modifying the relief and passing a decree for mandatory injunction in favour of the plaintiff-respondent and directing the appellant to restore the possession to the respondent.
6. For the reasons stated above, these appeals fail and are dismissed. No order as to costs.
