JUDGMENT
Tarun Agarwala, J.
1. This is a plaintiffs second appeal. The plaintiff filed a suit for permanent injunction alleging that he was the owner and in possession of plot Nos. 485 and 486. portions of which, were in the municipal limits. It was alleged that one Raghunath Sahai had filed Original Suit No. 113 of 1978 against the Municipal Board and the plaintiff with regard to the same plots in question and, in this suit, an issue with regard to the ownership of the plots was framed. This suit was dismissed against Sri Raghunath Sahai and the Court held that the plaintiff was the owner and in possession of plot Nos. 485 and 486. It was also alleged that the appeal filed by Sri Raghunath Sahai was also dismissed. The plaintiff therefore, contended that apart from being in possession for more than 12 years, a judicial pronouncement had also been given in his favour by a Court holding him to be the owner and in possession of the plots in question. The plaintiff alleged that in a portion of plot No. 485, the defendant Municipal Board had started throwing garbage and was trying to dispossess the plaintiff. Consequently, the present suit was filed in which the plaintiff prayed for the following reliefs:
(A) That the defendant, its agents and employees be restrained by a decree of permanent injunction from interfering in the peaceful possession of the plaintiff and in making constructions over Khasra plot No. 485, Khatauni No. 353 measuring 9 biswa pukhta Khatauni No. 138 measuring 8 biswa pukhta and Khasra plot No. 486, Khatauni No. 138 measuring 3 biswa pukhta enclosed by letters ABCD, DCEF shown by red colour in the site plan given at the foot of the plaintiff, situated in Budaun in any manner whatsoever.
(B) That the defendant be restrained from destroying the bajra and chari crops standing in some portions of Khasra plot Nos. 485 and 486 and from filling with mud the foundations after removing the bricks on the disputed plots itself or its servants or agents in any manner.
(C) That an injunction be issued against the defendant, its agents and employees to remove the Ghura illegally placed by it within the time fixed by the Court, failing the same be got removed by the Court at the expense of the defendants.
(D) If the plaintiff be found out of possession on any portion of the disputed plots the possession may also be awarded by ejecting the defendant.
(E) Cost of the suit be awarded.
2. The defendants contested the suit and filed his written statement contending that the defendants are the owners and in possession of the plots in question by adverse means. The defendants alleged that they had perfected their title by being in adverse possession for more than 12 years. The defendants further alleged that they had been throwing garbage in the said plot for several years and that the plaintiff was never in possession of the said plots. The defendant further alleged that suit No. 113 of 1978 filed by Sri Raghunath Sahai, was a collusive suit, and in any case, the decision in the said suit had no bearing with the rights of the answering defendants nor was it binding upon them. The defendants also alleged that the suit was not maintainable in a civil court and that the plaintiff should have filed the suit before the revenue court.
3. The trial court, after framing as many as nine issues and after considering the evidence brought on the record, decreed the suit. The trial court held that the plaintiff was the owner and in possession of the plots in question. The trial court further found that the plaintiff did not make any attempt to dig any foundation in July 1983. The trial court further found that the judgment in Original Suit No. 113 of 1978 was decided inter se between the parties and therefore, was binding upon them. The trial court further found that the defendants did not acquire any right over the property by way of adverse possession and that the suit was not barred under Section 326 of the Municipalities Act for want of previous notice and that the suit was maintainable before the civil court and that the plaintiff was not required to seek a suit for declaration before the revenue court. It may also be stated here that before the trial court, the plaintiff had abandoned relief No. (c) as claimed by him in the plaint, namely, that if the plaintiff was found to be out of possession then the possession may be awarded by the Court after ejecting the defendants.
4. Aggrieved by the decree of the trial court, the defendants filed an appeal, which was allowed and the judgment and decree of the trial court was set aside and the suit was dismissed. The appellate court found that since the plaintiff was not in possession of the land in suit and in the absence of claiming a relief for possession, the suit for injunction was not maintainable and therefore, the trial court had no jurisdiction to decide the matter. The appellate court further held that the plaintiff was not a bhumidhar or the owner of the plots and was also not in possession of the plots in suit, as admittedly, the plaintiff had been dispossessed by the throwing of the garbage on the plots in question by the defendants. The appellate court held that the suit was basically one of possession. The plots in question was an agricultural land and therefore, the suit was not maintainable in a civil court and that a declaratory suit was required to be filed under Section 229B of the U.P. Zamindari Abolition and Land Reforms Act. While arriving at this finding, the appellate court relied upon a decision in Janeshwar Prasad and Ors. v. Smt. Bismilla Begum and Ors. 1985 ALJ 325, wherein it was held that a suit for recovery or possession of an agricultural plot, the relief could only be given by a revenue court under Section 229B of the U.P. Zamindari Abolition and Land Reforms Act. The trial court further held that since the relief of possession was not claimed and the plaintiff was found to be out of possession, a suit for permanent injunction could not be filed and therefore the suit was not maintainable. The lower appellate court came to the conclusion that the plaintiff was not in possession since the defendants were placing garbage on a portion of plot No. 486. The lower appellate court further found that a notice under Section 326 of the Municipalities Act was mandatory and the suit could not be filed without giving a notice to the defendants as contemplated under Section 326 of the Municipalities Act, and therefore, on this account the suit was not maintainable. The lower appellate court also found that the plaintiff had failed to prove the ownership of the plots in question and had not disclosed the source of ownership in his plaint and therefore, the certified copy of the sale deed could not be taken into consideration nor was admissible in evidence. The lower appellate court further discarded the certified copy of the sale deed on the ground that the original sale deed should have been filed. The lower appellate court also held that the judgment in suit No. 113 of 1978 appeared to be collusive and therefore, the said judgment was not binding on the defendants. The appellate court further found that the suit could not be filed by the plaintiff, as he had transferred the property in question in favour of his sons and therefore, the sons were the persons, who in fact, could have filed the suit.
5. Aggrieved by the decision of the appellate court, the plaintiff had filed the present second appeal which was admitted on the following substantial questions of law, namely:
(i) Whether the lower appellate court could allow the Civil Appeal No. 103 of 1984 on the basis of a third case not pleaded by either of the parties?
(ii) Whether the finding of the lower appellate court that the earlier suit in respect of declaration of title of the disputed plots was a collusive one is perverse and based on no evidence at all?
(iii) Whether a Court can grant a relief which is, though not sought for, lesser than the relief sought?
6. Apart from the aforesaid questions of law, the learned Counsel for the plaintiff-appellant further prayed that the following substantial questions of law should also be framed by the Court, namely:
(iv) whether a notice under Section 326 of the Municipalities Act, was necessary and was required to be issued by the plaintiff to the defendants in the facts and circumstances of the case.
7. Heard Sri B.N. Agarwal, the learned Counsel for the appellant assisted by Sri Sanjay Agarwal, advocate and Sri Pawan Kumar Srivastava, the learned Counsel holding the brief of Sri Manish Nigam, the learned Counsel for the defendants.
8. Before this Court, during the course of the hearing of the appeal, the learned Counsel for the appellant filed misc. application dated 10.7.2007 praying that he may be permitted to abandon relief No. (c) as claimed in the plaint, namely:
(c) That an injunction be issued against the defendant, its agents and employees to remove the Ghura illegally placed by it within the time fixed by the Court, failing the same be got removed by the Court at the expense of the defendants.
9. The plaintiff-appellant submitted that during the pendency of the appeal, the garbage thrown by the defendants on the plot in. question had been removed and therefore, there was no necessity for the plaintiff to pray for this relief as the same had become infructuous. Consequently, this Court under Order XXIII, Rule 1 read with Section 151, C.P.C. allowed the application and permitted the plaintiff-appellant to abandon relief (c) of the plaint.
10. In view of the aforesaid, it is clear that the plaintiffs relief for the removal of the garbage from the plots in question as well as the relief of possession, has been abandoned. The moot question which arises for consideration is, whether in the absence of claiming a relief for possession, a suit for injunction was maintainable in a civil court or not? In my opinion, a simplicitor suit for injunction is maintainable before a civil court and can be filed under Section 9, C.P.C. If the plaintiff was threatened by the defendants in any form by way of dispossession or by way of trespass, nuisance, etc., it is always open to the plaintiff to approach the civil court and seek a relief of permanent injunction against the defendant. The plaintiff has to show that he was the owner and in possession and establish his title and possession, upon which, the civil court would be duty bound to grant a relief for injunction. The finding of the appellate court, that since a relief for possession was not claimed, the suit was not maintainable before a civil court, is patently erroneous. It is settled law that the civil court has jurisdiction to try a suit of a civil nature except those which are expressly or impliedly excluded under Section 9, C.P.C. The provisions of law which seeks to oust the jurisdiction of a civil court needs to be strictly construed. Section 331 of the U.P. Zamindari Abolition and Land Reforms Act, has been the subject of a series of pronouncement of the High Courts as well as of the Supreme Court, as to the circumstances and the nature of the suit in which it exclusively operates.
11. In Janeshwar Prasad and Ors. v. Smt. Bismilla Begum and Ors. 1985 ALJ 325, the Supreme Court reversed the judgment of the High Court, which was relied upon by the lower appellate court and held, that “the view given by the High Court did not lay the correct proposition and that the suit was maintainable before the civil court.”
12. In State of Andhra Pradesh v. Manjeti Laxmi Kantha Rao , the Supreme Court held:
The normal rule of law is that civil courts have Jurisdiction to try all suits of civil nature except those of which cognizance by them is either expressly or impliedly excluded as provided under Section 9 of the Code of Civil Procedure but such exclusion is not readily inferred and the presumption to be drawn must be in favour of the existence rather than exclusion of jurisdiction of the civil courts to try civil suit. The test adopted in examining such a question is (i) whether the Legislature intent to exclude arises explicitly or by necessary implication, and (ii) whether the statute in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it. In Dhulabhai v. State of Madhya Pradesh , it was noticed that whether a statute gives finality to the orders of the special Tribunals jurisdiction of the civil courts must be held to be excluded if there is an adequate remedy to do what the civil courts would normally do in a suit and such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.
13. In Shyam Dhar v. XIth Additional District Judge, Allahabad and Ors. 2004 (3) AWC 1889, this Court held:
that a suit for permanent injunction in respect of an agricultural land is still maintainable before a civil court.
14. In Rameshwar and Brajesh v. VIIth Additional District and Sessions Judge, Deoria and Ors. 2002 (2) AWC 1137, the Court while holding that the suit was cognizable by a civil court held that much would depend on the allegation in the plaint and the relief clause.
From a perusal of the aforesaid judgments, it is clear that the averments contained in the plaint and the relief claimed by the plaintiff was crucial to decide the Jurisdiction of a civil court. The plaintiff claimed that he was the owner and in possession of the plots in question. The fact that a portion of the plot is an agricultural land is immaterial to decide the jurisdiction of the civil court. The crucial fact is, that the plaintiff had claimed the relief restraining the defendants from interfering in his possession and from destroying the crops standing on the said plot. Once it is alleged that the plaintiff is in possession and was also the owner of the plots in question, the suit was clearly maintainable. The lower appellate court, while dealing on this aspect of the matter, had not correctly appreciated the facts involved in the case. The lower appellate court had presumed that the plaintiff was not in possession on the strength of the allegations made by the plaintiff, namely, that the defendants are throwing garbage on a portion of the plot and therefore, presumed that the plaintiff had been dispossessed.
15. In my opinion, the mere fact that the defendants had thrown garbage on a portion of the land does not mean that the plaintiff had been dispossessed permanently from the land in question. Take a case where a washerman/dhobi dries the clothes in an open field belonging to someone else. Does it mean that the washerman/dhobi is in possession of the said land. Does it mean that the owner of the land has been dispossessed? In my opinion, it is only a trespass. The entry made by the washerman on the land in question for the purpose of drying the clothes does not mean that the owner of the land had been dispossessed. Similarly, throwing garbage amounts to a trespass and is also a nuisance and does not mean that the person has been dispossessed permanently from the land in question. No finding has been given that the defendants had been throwing garbage on the plot in question for a long time. If such a finding, of throwing garbage for a long period, had been given by the courts below may be a different conclusion about the possession of the plaintiff could be arrived at, but in the absence of any evidence, to show that the garbage was being thrown for a long period of time, this Court is of the firm opinion, that the plaintiff had not been dispossessed from the land in question. Consequently, the plaintiff having been found to be in possession and alleged to be the owner, the suit was clearly maintainable. The finding of the lower appellate court, that the plaintiff was not in possession is patently perverse.
16. On the question of ownership, the lower appellate court had ousted the plaintiff on the ground that the plaintiff did not plead in his plaint specifically about the source of his ownership nor pleaded about the execution of the sale deed in his favour. The lower appellate court, also held that the certified copies of the sale deed could not be relied upon nor was it admissible in evidence, since specific pleadings had not been made by the plaintiff in his plaint.
17. In my view, the approach adopted by the lower appellate court, is patently perverse and is against the provisions of Order VI, Rule 2, C.P.C. which is quoted hereunder:
Order VI, Rule 2. Pleading to state material facts and not evidence.–(1) Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be powered.
(2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.
(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.
18. A perusal of Order VI, Rule 2, C.P.C. indicates that the pleadings should contain only a statement in a concise form of the material facts on which a party relies for his claim. In the present case, the plaintiff in paragraph-5 of the plaint has pleaded the following:
The plaintiff is the bhumidhar and owner in possession over the property in suit for more than 12 years.
In my opinion, this pleading is precise, concise and is in accordance with the provisions of Order VI, Rule 2, C.P.C. The plaintiff alleges that he is the bhumidhar, owner and in possession for more than 12 years. These are the crucial facts, which are essential for his ownership and possession. How the plaintiff is the owner or in possession is required to be proved by the plaintiff by way of evidence. So far as the ownership is concerned, the plaintiff had proved by way of filing a certified copy of the sale deed executed in his favour. It was not necessary for the plaintiff to state in his plaint that he was the owner on the basis of a sale deed. It was sufficient for the plaintiff to allege in his Plaint that he was the owner.
19. In Smt. Sushila Devi v. Smt. Jasoda Bai and Ors. 1981 ALJ 263, in a suit for possession involving a dispute with regard to the ownership of a platform in a house, the Court held that it was sufficient for the plaintiff to plead that he was the owner and was in possession of the platform in his plaint which was in accordance with the provisions of Order VI, Rule 2, C.P.C. The Court held:
In order to substantiate her claim, the plaintiff relied on the sale deed dated November 30, 1955 executed by Pooran Chand jointly in her favour and in favour of Shanti Devi. It has been observed by the Court of appeal that the said sale deed had not been specifically pleaded in the plaint, and, as such it was not open to the plaintiff to rely on the same. This observation of the Court of appeal is not sustainable in law. Order VI of the Civil Procedure Code deal with pleadings generally. Rule 2 of the said Order lays down that every pleading shall contain and contain only, a statement in concise form of the material facts on which the party pleading relied for his claim or defence, as the case may be, but not the evidence by which they are to be proved. Rule 3 of the said order further lays down that the forms prescribed in Appendix A to the Civil Procedure Code shall as far as possible, be adhered to. The sale deed dated November 30, 1955, referred to above, was in the nature of evidence and it should not have been pleaded by the plaintiff. The alleged shortcoming in the plaint pointed out by the court of appeal was actually not a defect and no presumption could have been drawn against the plaintiff on that account.
The aforesaid judgment is squarely applicable to the present case and fortifies the view taken by me. Consequently, the lower appellate court was not justified in holding that the plaintiff was unable to prove his source of title and further committed an error in holding that the sale deed could not be considered in evidence.
20. The finding of the lower appellate court that in the absence of the original sale deed having not been filed, the certified copy of the sale deed filed by the plaintiff was not admissible in evidence nor was properly proved is patently erroneous. The plaintiff in his statement had categorically stated that the original sale-deed had been misplaced. This statement has not been disbelieved nor denied by the defendants. Consequently, in view of Section 65 (f) read with Section 79 of the Evidence Act, the certified copy of an original document is admissible as a secondary evidence. The Court shall presume every document purporting to be a certified copy of a document to be admissible in evidence.
In view of the aforesaid, this Court finds that the certified copy of the sale deed was admissible in evidence, a perusal of which, clearly indicates that the plaintiff was the owner of the plots in question. It is therefore, clear that the plaintiff was the owner and in possession of the land in question and therefore, even if a portion of. the land was an agricultural land in nature, nonetheless, the suit was clearly maintainable in a civil court. The revenue court had no jurisdiction to try the suit.
21. This leads to the question as to whether the suit could have been filed without serving a notice to the defendants contemplated under Section 326 of the Municipalities Act, which reads as under:
326. Suits against (Municipality) or its officers.–(1) No suit shall be instituted against a (Municipality), or against a member, officer or servant of a (Municipality), in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of two month next after notice in writing has been, in the case of a (Municipality), left at its office, and, in case a member, officer or servant, delivered to him or left at his office or place of abode, explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left.
(2) If the (Municipality), member, officer or servant shall before action is commenced, have tendered sufficient amends to the plaintiff, the plaintiff shall not recover any sum in excess of the amount so tendered, shall also pay all costs incurred by the defendant after such tender.
(3) No action such as is described in Sub-section (1) shall, unless it is an action for the recovery of immovable property or for a declaration of title thereto, be commenced otherwise than within six months next after the accrual of the cause of action.
(4) Provided that nothing in Sub-section (1) shall be construed to apply to a suit wherein the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the commencement of the suit or proceeding.
22. The lower appellate court without construing the provisions of Sub-section (4) of Section 326 concluded that a notice was required to be issued by the plaintiff before filing a suit for injunction. Sub-section (4) clearly indicates that a suit for injunction could be filed even without giving a notice contemplated under Sub-section (1) of Section 326. In view of the clear provision namely, Sub-section (4) of Section 326, it is clear that a suit for injunction could be filed against the Municipal Board without giving a notice.
23. This Court after perusing the statements of the parties and the material brought on the record, finds that the lower appellate court had transgressed its jurisdiction and gave a finding on the basis of surmises and conjectures and proceeded on presumptions which was not part of the pleadings, for example, the lower appellate court held that the plaintiff was not the owner and that he had transferred the property in favour of his sons and therefore, the suit could not be filed by the plaintiff. The statement of P.W. 2, Rajesh has been perused by me in which he has categorically stated that his father was the owner of the property in question. He has nowhere stated that his father had transferred the property in question in favour of his sons. Further, the lower appellate court had given a finding that the judgment in suit No. 113 of 1978 was collusive in nature and was not binding on the defendants. The lower appellate court held that it was not clear from a perusal of the judgment that the defendant Municipal Board was a party in that suit or not.
24. In my opinion, this finding is patently perverse and against the pleadings. The plaintiff in his plaint had categorically stated that Original Suit No. 113 of 1978 was filed by Raghunath Sahai in which the Municipal Board was a defendant and, inspite of service, the Municipal Board did not file a written statement. There is no specific denial by the Municipal Board in the written statement to the effect that the Municipal Board was not a party. There is no denial that they did not file any written statement in that suit or that the said suit proceeded ex parte against them. Consequently, by only making a bald denial of the averments in the plaint, the defendants cannot escape their liability by merely alleging that the judgment in that suit was obtained collusively by the plaintiff in that suit with the plaintiff of this suit. From the record, it is clear that the defendants was a party in Original Suit No. 113 of 1978 and the decision given by the Court was binding upon the defendants.
25. In view of the aforesaid, this Court is of the opinion, that the judgment of the lower appellate court cannot be sustained and is therefore, quashed. The second appeal is allowed with costs. The question of law as framed by the Court is answered accordingly.