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Madhuban And Another v. Phool Chandra And Another - SECOND APPEAL No. 615 of 2006 [2006] RD-AH 12042 (24 July 2006)


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                                                                               Court No. 24

Second Appeal No. 615 of 2006

Madhuban and  another.....................................................Appellants


Phool Chandra & another...............................................Respondents                                                          

Hon'ble Umeshwar Pandey, J.

Heard Sri Suresh Chandra Verma, learned counsel for the appellants-defendants and Sri M.K. Gupta representing the respondents-plaintiffs.

Respondents' suit for demolition and permanent injunction and in the alternative for the relief of partition was partly decreed by the trial court vide its judgment dated 17.12.2003 (Annexure-1 to the writ petition) for the relief of permanent injunction and part claim of demolition. Against that decree, the defendants-appellants did not prefer any appeal before the first appellate court, but the respondents-plaintiffs filed first appeal requesting for decretal of the entire suit. The appeal was allowed and after setting aside the judgment of the trial court a decree was passed for the removal of the entire encroachment done by the appellant over the plaintiffs' 1/3rd share in the disputed property. The entire encroachment was not directed to be removed and demolished  by the appellate court and only a very little part of the same was included by it in its decree for mandatory injunction of demolition.

The learned counsel appearing for the appellants, while arguing on the admission of this second appeal, has referred to the expression used in the operative portion of the appellate order stating that the suit as a whole is decreed. By this expression what the learned counsel has proposed to conclude is that the first appellate court has decreed the entire suit including the relief of partition claimed in the plaint. The learned counsel also tried to emphasise that the appellate court could not pass a decree of partition when the respondents-plaintiffs had given up his case before the trial court itself for the decree of partition.

In reply to the aforesaid, what has been submitted from the side of respondents-plaintiffs is that the relief claimed in the plaint for a decree of partition was in fact an alternative relief though not so specifically stated in the relief clause of the plaint. Referring to para 11-Ka of the plaint it has been emphasised that though the plaintiffs specifically do not claim the aforesaid relief of partition in the alternative in relief clause of the plaint, the pleadings of para 11-Ka of the plaint renders that relief nothing but a relief sought for in the alternative only.

As regards the aforesaid dispute raised by the learned counsel for the parties relating to the claim of relief of partition in the alternative, it is quite obvious that in para 11-Ka of the plaint which was incorporated by way of amendment later on along with the relief Aa-1, this relief was added to the plaint when the defendants-appellants disputed the alleged partition between the parties. The plaint itself speaks of a private partition between the parties as per the pleading given in para 9 of the plaint. This pleading of para 9 of the plaint has been disputed in the written statement. The private partition as alleged in the plaint was also disputed. It is in this view that the plaintiffs-respondents sought amendment in the plaint and thereby the relief of partition has been incorporated which is nothing but a relief in the alternative.

As regards the judgment impugned, it does state that the suit as a whole is being decreed, but then it does not specify any decree as to the relief of partition claimed in the plaint. Therefore, from the decree so passed by the first appellate court it cannot be said that the decree of partition claimed in the alternative, was also passed. The specific decree which has been passed by the first appellate court is that the whole encroachment allegedly done by the defendants has been directed for removal and demolition as claimed in the plaint. The trial court had decreed the relief of demolition over a very little portion of the alleged encroachment and had directed its removal. But the appellate court has directed by its decree the removal of the entire alleged encroachment and that is why the expression used in the operative portion of the judgment is that the suit as a whole was being decreed. If the principal relief is granted by a court and decree is passed in regard thereto, it is quite obvious that the relief claimed in the alternative of the main relief is never granted. Therefore, it is hereby observed that the appellate court instead of granting a decree for partition has only granted decree for demolition and permanent injunction and nothing more. Those reliefs which have been granted, have been so granted after full discussion of the evidence recorded by the trial court and the findings are purely factual findings which are not liable for interference within the scope of Section 100 C.P.C. in this second appeal.

The appeal is not worth admission and it is accordingly dismissed at the admission stage.




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