Case Note & Summary
The case involves a second appeal arising from a property dispute. The respondents (original plaintiffs) filed Regular Civil Suit No.521/1986 before the Civil Judge Junior Division, Mapusa, claiming ownership of suit property surveyed under no.216/35 of village Saligao. They alleged that they were residing at Nagpur and had entrusted the property to the appellants' care. In 1975, they inducted a lessee, and later another person. On 20/07/1986, they were informed that the appellants placed a steel container in the suit property, and on 14/10/1986, appellant no.2 broke a portion of the compound wall, dug trenches, and demolished part of the western side. The respondents filed a suit for permanent injunction and mandatory injunction to remove the steel container, repair the compound wall, fill trenches, and remove loose stones, with an alternate prayer for damages. The trial court decreed the suit, and the first appellate court confirmed the decree. The appellants filed a second appeal, which was admitted on 9/10/2003 on substantial questions of law: (B) whether a suit for mandatory injunction could be construed as a prayer for restoration of possession, and whether a decree for restoration of possession could be passed without such prayer; (D) whether in a suit simpliciter for permanent injunction, there was any occasion to consider the plea of adverse possession when the suit was liable to be dismissed once the finding was recorded that possession was with the appellants. The High Court, after hearing arguments, allowed the appeal, holding that the suit was essentially for mandatory injunction and not for restoration of possession, and the courts below erred in granting relief of restoration of possession without a specific prayer. The court set aside the judgments and decrees of the lower courts and dismissed the suit.
Headnote
A) Civil Procedure - Mandatory Injunction vs. Restoration of Possession - Specific Relief Act, 1963, Section 38 - The suit was for mandatory injunction to remove a steel container, repair compound wall, and fill trenches, with an alternate prayer for damages. The court held that such a suit cannot be construed as a prayer for restoration of possession, and a decree for restoration of possession cannot be passed without a specific prayer to that effect. (Paras 2, 3)
B) Property Law - Adverse Possession - Limitation Act, 1963, Article 65 - In a suit simpliciter for permanent injunction, there is no occasion to consider the plea of adverse possession when the suit is liable to be dismissed once the finding is recorded that possession is with the defendant. (Para 2)
Issue of Consideration
Whether a suit for mandatory injunction seeking removal of a steel container, repair of compound wall, and fill up trenches with alternate prayer for damages could be construed as a prayer for restoration of possession, and whether a decree directing restoration of possession could be passed when there was no such prayer in the plaint.
Final Decision
The appeal is allowed. The judgments and decrees of the trial court and the first appellate court are set aside. The suit filed by the respondents is dismissed.
Law Points
- Suit for mandatory injunction cannot be construed as prayer for restoration of possession
- Court cannot grant relief not prayed for
- Adverse possession plea not maintainable in suit simpliciter for injunction
Case Details
2011 LawText (BOM) (10) 81
Second Appeal No.47 of 2003
Shri S.D. Lotlikar, Senior Advocate with Shri V. Menezes and Ms. V. Palyekar for Appellants; Shri J.E. Coelho Pereira, Senior Advocate with Shri V. Korgaonkar for Respondents
Mr. Eleuterio de Remedios (since deceased through legal heirs) and Mr. Eric Remedios
Mrs. Antoinetta Nazareth (since deceased) and others
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Nature of Litigation
Second appeal against concurrent decrees in a suit for permanent and mandatory injunction.
Remedy Sought
Appellants sought to set aside the judgments and decrees of the lower courts which granted restoration of possession without a specific prayer.
Filing Reason
The appellants challenged the decree on the ground that the suit was for mandatory injunction and not for restoration of possession, and the courts below erred in granting relief not prayed for.
Previous Decisions
The trial court decreed the suit, and the first appellate court confirmed the decree.
Issues
Whether a suit for mandatory injunction seeking removal of a steel container, repair of compound wall, and fill up trenches with alternate prayer for damages could be construed as a prayer for restoration of possession.
Whether a decree directing restoration of possession could be passed when there was no such prayer in the plaint.
Whether in a suit simpliciter for permanent injunction, there was any occasion to consider the plea of adverse possession when the suit was liable to be dismissed once the finding was recorded that possession was with the appellants.
Submissions/Arguments
Appellants argued that the suit was for mandatory injunction and not for restoration of possession, and the courts below erred in granting relief of restoration of possession without a specific prayer.
Respondents argued that the suit was maintainable and the decree for restoration of possession was justified.
Ratio Decidendi
A suit for mandatory injunction cannot be construed as a prayer for restoration of possession. A decree for restoration of possession cannot be passed without a specific prayer to that effect in the plaint. In a suit simpliciter for permanent injunction, there is no occasion to consider the plea of adverse possession when the suit is liable to be dismissed once the finding is recorded that possession is with the defendant.
Judgment Excerpts
Whether a suit for mandatory injunction seeking removal of a steel container allegedly placed by the appellants in the suit property, mandatory injunction to repair the compound wall and parapet wall and fill up trenches and to remove loose stones heaped in the suit property with an alternate prayer for payment of damages could be construed to be prayer for restoration of possession of the suit property, and whether a decree directing restoration of possession of the suit property, could be passed in favour of the respondents when in the plaint as filed there was no prayer for restoration of possession?
Whether in view of the suit being a suit simpliciter for permanent injunction and not for restoration of possession, there was any occasion for the Courts below to consider the plea of adverse possession of the appellants when the suit of the respondents was liable to be dismissed once the finding was recorded that the possession of the suit property was with the appellants?
Procedural History
The respondents filed Regular Civil Suit No.521/1986 before the Civil Judge Junior Division, Mapusa. The trial court decreed the suit. The appellants appealed to the first appellate court, which confirmed the decree. The appellants then filed Second Appeal No.47/2003 before the High Court of Bombay at Goa, which was admitted on 9/10/2003 on substantial questions of law. The High Court allowed the appeal on 17/10/2011.
Acts & Sections
- Specific Relief Act, 1963: Section 38
- Limitation Act, 1963: Article 65
