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Tuesday, February 14, 2017

mere declaration without relief of recovery of possession was clearly not maintainable=The plaintiff, who was not in possession, had in the suit claimed only declaratory relief along with mandatory injunction. Plaintiff being out of possession, the relief of recovery of possession was a further relief which ought to have been claimed by the plaintiff. The suit filed by the plaintiff for a mere declaration without relief of recovery of possession was clearly not maintainable and the trial court has rightly dismissed the suit.=The decree of the High Court is also contradictory. The High Court has affirmed the findings that Defendant No. 1 is the owner of the Survey No. 188/1 and 188/3, whereas, by decreeing the suit for declaration and mandatory injunction the name of Defendant No. 1 is to be removed and replaced by plaintiff which is clearly erroneous and unsustainable. 38. In view of the above, judgment of the High Court cannot be sustained. The High Court committed an error in reversing the judgments of the trial court and the First Appellate Court. In result, the appeal is allowed and the judgment of the High Court is set aside and those of trial court and the First Appellate Court are restored.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.2342 OF 2017
                   ARISING OUT OF SLP(C)NO. 21587 OF 2014


EXECUTIVE OFFICER, ARULMIGU                             CHOKKANATHA SWAMY
KOIL TRUST
VIRUDHUNAGAR                                  .... APPELLANT

                                     VERSUS


CHANDRAN & ORS                         .... RESPONDENTS




                               J U D G M E N T

Ashok Bhushan, J.


      Leave granted

2.    The defendant has filed this appeal against judgment  of  the  Madurai
Bench of Madras High Court dated 22.01.2013,  by  which  judgment  the  High
Court while reversing the  judgment  of  trial  court  and  First  Appellate
Court, has decreed the suit of the plaintiff.
3.    The brief facts of the case are:

      The Respondent  No.  1,  who  shall  be  hereinafter  referred  to  as
plaintiff, filed Original Suit No. 33 of 2008 for the relief of  declaration
and mandatory injunction. Plaintiff's case in the plaint was  that  by  Sale
Deed dated 04.11.2007, he has purchased an area of  2  acres  and  73  cents
being part of  Survey No. 188. The entire Plot No. 188 (area 7 acres and  84
cents) is recorded in the name of Defendant No. 1. Mandatory injunction  was
prayed to be issued, directing the Defendant Nos. 4 and  5  to  correct  the
revenue records by entering the name of plaintiff in the suit property.  The
plaintiff's case was that the suit property belonged to one  R.  Padmanabhan
who vide Sale Deed dated 28th August, 1992 on his behalf and  on  behalf  of
his minor sons transferred 2 acres 72 cents area being part  of  Survey  No.
188 in favour of one Sanjay  Ramasamy,  correspondent  of  Annai  Velankanni
Women Teacher Training School. Sanjay Ramasamy executed a General  Power  of
Attorney in favour of one Bhaskaran on 31.10.2007 and it was  Bhaskaran  who
executed the  Sale  Deed  dated  04.11.2007  in  favour  of  the  plaintiff.
Plaintiff, further stated  that  when  he  went  to  Revenue  Tehsildar  for
issuance of patta in his favour, he came to know that it is in the  name  of
first Defendant. Consequently, the suit was filed, seeking  declaration  and
mandatory injunction.

4.    A written statement was filed by the  first  Defendant,  controverting
the plaint allegation. It was pleaded that plaintiff or his predecessors  in
interest were never the owner of the suit property.  The  Defendant  No.  1,
hereinafter referred to as Temple, has been the owner in possession  of  the
suit property whose name is also recorded in the  revenue  records.  It  was
pleaded that there is no such Survey No. as 188 in the  whole  village.  The
only available Survey Nos. as per the revenue records are 188/1,  188/2  and
188/3. The first Defendant is entitled to the Survey No.  188/1  and  188/3,
which are in possession and continuous enjoyment of  Temple  from  the  time
immemorial. The property register of the  Temple,  which  is  maintained  by
Special  Tehsildar,  Hindu  Religious  &  Charitable  Endowment  Department,
records the Temple as the owner of the property. Survey No. 188/2 is in  the
possession and enjoyment of one Janaki Ammal, who being  not  a  party,  the
suit is not maintainable and it is bad for mis-joinder  and  non-joinder  of
necessary party. The defendants numbers 2 to  4  have  adopted  the  written
statement of defendant No.1.

5.    Plaintiff, initially in the plaint, had claimed  for  the  reliefs  of
declaration and mandatory injunction for an area 2 ares 73 cents as part  of
Survey No. 188. Subsequently, the plaint was got amended by  the  plaintiff,
mentioning the suit property as Survey No. 188/3. The Plaintiff  in  support
of his case filed documentary as well as oral evidences of PW  1  to  PW  5.
The Defendant in support of his case has also filed documentary as  well  as
oral evidences of DW 1, Senior Accountant in defendant's temple.

6.    Trial court framed the following five issues:

"1.   Whether the plaintiff is entitled for the  relief  of  declaration  as
prayed for?

2.    Whether the plaintiff is entitled for mandatory injunction  as  prayed
for?”

3.    Whether the suit is bad for non joinder of necessary party?

4.    To any other relief?

Additional issue framed on 17.08.2010:

1.    Whether this suit is maintainable?”


7.    Trial court, while answering the issue  No.  1  to  4  and  additional
issue No. 1 held that Survey No.  188  further  has  been  sub-divided  into
Survey No. 188/1, 188/2 and 188/3. The trial court further held  that  there
is no explanation submitted by the plaintiff that how  he  has  got  amended
the Survey No. 188/3 in the original suit. It held that the  description  of
the  suit  property  is  not  correct.   It  was  also  held  that  name  of
Padmanabhan was never recorded in  the  revenue  records.  Patta  was  never
transferred in the name of Sanjay Ramasamy, who had no right  to  execute  a
General Power of Attorney in favour  of  Bhaskaran.  It  was  held  that  no
document has been produced to prove that Padmanabhan was in  possession  and
enjoyment of the suit property.  None of those persons, who  claimed  to  be
vendors have been examined. Finding was returned that  the  Survey  No.  188
was never in the name of Padmanabhan.

8.    It was held that  suit  property  belonged  to  Temple,  which  is  in
possession for a long time continuously. The trial court further recorded  a
finding that plaintiff had failed to prove, that property  belonged  to  the
plaintiff and it is  in  possession  hence  declaratory  reliefs  cannot  be
granted to the plaintiff and thereby suit is not maintainable.

9.    Answering the issue No. 6, trial court held that PW 1,  the  plaintiff
having deposed in his cross-examination, that survey No.  188/2  is  in  the
name of Janaki Ammal and she had sold the property to  some  other  persons.
The Janaki Ammal being necessary party who has not  been  impleaded  in  the
suit, the suit is hit by non-joinder of a necessary party.

10.   The plaintiff aggrieved by the judgment of the trial  court  filed  an
appeal. The  Appellate  Court  vide  its  judgment  dated  31.10.2011  after
reappraising the  entire  evidence  on  the  record  affirmed  the  findings
recorded by the trial court that plaintiff is not  the  owner  of  the  suit
property. The Appellate Court further held that on the date  when  plaintiff
purchased the property in 2007, Survey No. 188 was  already  sub-divided  in
188/1, 188/2 and 188/3. The vendors of the plaintiff  did  not  have  patta,
chitta and adangal of the suit property.

11.   The Appellate Court held that Survey No. 188/1  and  188/3  belong  to
Temple and  survey  No.  188/2  belongs  to  Janaki  Ammal  who  having  not
impleaded, the suit is bad for  mis-joinder  and  non-joinder  of  necessary
party. It was held that plaintiff  was  not  entitled  for  declaration  and
mandatory injunction.

12.   Aggrieved by the judgment of the Appellate Court,  second  appeal  was
filed by the plaintiff in the High Court. The High Court vide  its  judgment
and order dated 22.01.2013, allowed the second appeal by setting  aside  the
decrees of the trial court and Appellate Court respectively. The High  Court
although, set aside the decree of courts below  and  decreed  the  suit  but
directed the Defendant Nos. 4 and 5 to include the  name  of  the  plaintiff
after excluding the extent of property which  stands  in  the  name  of  the
first Defendant.

13.   The High Court in its judgment did not disturb  the  findings  of  the
courts below that Temple is the owner of 188/1 and 188/3  total  area  of  5
acres and 10 cents of land. The High Court, however, held  that  total  area
of 188 being 7 acres and 84 cents, plaintiff was entitled for the  remaining
extent of plot No. 188. Aggrieved by the judgment of the  High  Court,  this
appeal has been filed by the Defendant No. 1.

14.   Learned counsel for the appellant in support of appeal  contends  that
the High Court in  exercise  of  jurisdiction  under  Section  100  CPC  has
interfered with the concurrent findings of the  facts,  recorded  by  Courts
below that the plaintiff has failed to proof his title and possession.

15.   It is submitted that plaintiff having  himself  admitted  that  Survey
No. 188/2 stood in the name of Janaki Ammal and Janaki Ammal without  having
been impleaded, the suit of plaintiff was correctly dismissed by two  courts
below on the grounds of mis-joinder  and  non-joinder  of  necessary  party.
Further, the description of the property in the plaint was incorrect and in-
spite of the amendment of the plaint, no correction having been made in  the
sale deed, plaintiff could not have been  given  any  right  on  Survey  No.
188/3.

16.   The plaintiff  came  with  the  case  that  Padmanabhan  acquired  the
property through inheritance, but in  his  deposition,  it  is  stated  that
property was purchased by Padmanabhan. The property being never in the  name
of Padmanabhan in the records, there was no title vested in  the  plaintiff.
Defendant proved that Survey No. 188/1 and 188/3 having been in the name  of
Temple, no right could have been granted to the plaintiff.

17.   Learned counsel  for  the  respondent/plaintiff  submitted  that  High
Court has rightly set aside the judgment  and  decrees  of  the  two  courts
below. Plaintiff had proved his title to the  suit  property  by  virtue  of
Sale Deed dated 29.07.1974 Annexure R.1,  Sale  Deed  dated  28.08.1992  and
Sale Deed dated 04.11.2007. It is contended that title  of  Padmanabhan  was
fully proved by Sale Deed  dated  29.07.1974,  which  was  executed  by  one
Rajakambalam Sundara Rajan with regard to part of Survey No. 188  area  2.79
acres.

18.   We have considered the submission  of  the  learned  counsel  for  the
parties and perused the record. The trial court after considering  the  both
oral and documentary evidence brought on record, dismissed the suit  of  the
plaintiff by recording following findings:

(i) Plaintiff has failed to prove by producing any  document  to  show  that
Padmanabhan had any right and possession over the suit property.

(ii)  Survey No. 188/1 and 188/3 are in the name of  Defendant  No.  1,  the
Temple.

(iii) The suit property belonged to Defendant No. 1 and it is in  possession
for a long time continuously.

(iv)  Plaintiff in his suit  has  prayed  for  the  reliefs  of  declaration
without seeking the relief  for  the  possession  hence  the  suit  was  not
legally maintainable.

(v)   Plaintiff  cannot  be  granted  the  decree  of  the  declaration  and
mandatory injunction.

(vi)  Survey No. 188/2 being in the name of Janaki  Ammal,  she  having  not
been made party to the suit, suit was hit by the principle  of  non  joinder
of the necessary party.

19.   The Appellate Court, after adverting to documentary and oral  evidence
has confirmed the above findings. Appellate  Court  has  also  rejected  the
application  filed  by  the  plaintiff,  for   amending   the   plaint   for
incorporating  new  pleadings.  Appellate  Court  held  that  by  amendment,
plaintiff intends to fill up the gap and wanted to change the entire  nature
of the case, which cannot be permitted.

20.   The plaintiff came with the case in the suit that R.  Padmanabhan  was
the owner of the property,  who  transferred  it  to  in  favour  of  Sanjay
Ramasamy on whose General Power of Attorney Bhaskaran  has  transferred  the
property to the plaintiff by Sale Deed dated  04.11.2007.  Trial  Court  has
categorically recorded a finding that R. Padmanabhan was  never  a  recorded
owner of the property and no patta was issued in his favour.

21.   The plaintiff initially in the plaint has prayed  for  decree  for  an
area of 2.73 acres, as part of Survey No. 188. Sale  Deed  dated  04.11.2007
also mentions the suit  property  as  part  of  Survey  No.  188.  Plaintiff
himself has examined PW 4, A. Murugesan, Surveyor at Virudhunagar  District,
Collectorate Office. PW 4 in the statement has stated that  he  has  brought
the village revenue records for the year 1983  with  regard  to  Survey  No.
188/1, 188/2 & 188/3. It is useful to extract the statement of PW  4,  which
was to the following effect:
"I received summons from this Hon'ble court to depose  witness.   I  brought
Chinnamoopanpatti Village's revenue records for the year  1983  with  regard
to S. No.  188/1, 188/2 & 188/3. I am producing 1914 settlement.”


22.   From the above, it is clear that Sub Divisions 188/1,  188/2  &  188/3
were in existence at least  since  before  1983.  The  deeds  on  which  the
reliance has been placed by the plaintiff i.e. Sale Deed  dated  28.08.1992,
by which Padmanabhan is said to have transferred the property in  favour  of
Sanjay Ramasamy as well as General Power of Attorney  dated  31.10.2007  and
Sale Deed dated 04.11.2007 in the name of plaintiff, the  suit  property  is
not described by sub division rather it is mentioned as  part  of  Plot  No.
188. Although, plaintiff got his plaint amended by  amending  part  of  Plot
No. 188 as Survey No. 188/3 but Sale Deed being not for  Survey  No.  188/3,
both the trial court and the  Appellate  Court  have  rightly  come  to  the
conclusion  that  the  plaintiff  failed  to  correctly  describe  the  suit
property and it cannot be accepted that deeds claimed  by  him  referred  to
the suit property.

23.   Learned counsel for the respondent has laid much emphasis on the  Deed
dated 29.7.1974 executed by Sundara Rajan in  favour  of  Padmanabhan  which
has been brought on the  record  of  paper  book  at  page  No.104.  Learned
counsel  submits  that  said  sale  deed  clearly   proves  the   title   of
Padmanabhan over 2.79 acres of Survey No.188. The said deed has  been  filed
by the plaintiff-respondent as Exhibit A-14. The Deed  dated  29.7.1974  has
been specifically considered by the trial court in para 9 of  the  judgment.
The trial court has in its judgment noticed that  plaintiff  came  with  the
case in  the  plaint  that  suit  property  was  inherited  by  Padmanabhan,
however, he relied on Exhibits A-12 to A-14 with regard to which  there  was
no pleading in the plaint. In his deposition,  PW.1  admitted  that  “it  is
correct to say that without disclosing this  deed  in  the  plaint  I  filed
Exhibits A-12 to A-15”. When there  was no pleading in the plaint  regarding
 title of Padmanabhan  by  any  other  earlier  deed  except  the  claim  of
inheritance the trial court rightly discarded the Deed dated  29.7.1974.  It
is further relevant to note that plaintiff's application made for  amendment
of the plaint in the Appellate Court was  considered  and  rejected  by  the
Appellate Court. The evidence, with regard of which there  is  no  pleading,
has rightly been discarded by the trial court. Unless there  is  a  pleading
especially with regard to the source of title, the defendant of a  suit  has
no opportunity to rebut such pleading thus an evidence with regard to  which
there is no pleading can not be relied by the plaintiff for setting  up  his
title in a suit. Secondly, the deed dated 29.7.1974  referred  to   part  of
Survey No.188, whereas the suit was filed in 2007 by the plaintiff by  which
date the Survey No.188 was sub-divided as 188/1,  188/2,  188/3.  The  deeds
through which plaintiff  claims  title  i.e.  28.8.1982,  General  Power  of
Attorney dated 31.10.2007 and sale deed dated 05.11.2007  do  not  refer  to
any sub-division. The plaintiff although amended the schedule property  from
part of Plot No. 188 as Survey No.188/3 but he failed  to  prove  his  title
over  Plot  No.188/3.  We,  thus,  do  find  that  the  trial  court   after
considering the document dated  29.7.1974  held  that  plaintiff  failed  to
prove his title.

24.   As noted above, there was  categorical  finding  by  trial  court  and
First Appellate Court that Defendant No. 1 is the owner of Survey No.  188/1
(2 acres and 2 cents) and 188/3(2 acres and 88 cents).  In  the  documentary
evidence, filed by the defendant  both  the  aforesaid  sub  divisions  i.e.
Survey No. 188/1 and 188/3 were recorded as  the  Temple  property.  In  the
property records maintained by the Hindu Religious  &  Charitable  Endowment
Department also Survey Nos. 188/1 & 188/3  were  recorded  in  the  name  of
Temple. Extract of the property registered was produced  before  the  courts
below which was believed.

25.   The High Court, in its judgment has also accepted  that  the  Temple's
name is recorded for Survey Nos. 188/1 and 188/3.  The High  Court,  in  its
judgment had held that total extent of 188/1 and 188/3 is only 5  acres  and
10 cents, whereas, plot No. 188 is 7 acres 84 cents,  hence,  the  plaintiff
was entitled to the remaining extent. Following observations have been  made
by the High Court in Para 16:
"16. The first defendant has put forth its right, title  and  interest  over
the suit property by virtue of Exs. B1 to B3.  In Exhibits B1 to B3, it  has
been clearly stated that Sub Division Nos. 188/1 and 3 are standing  in  the
name of the first defendant and its total extent is 5 acre 10 cents. It  has
already been pointed out that the total extent of original  Survey  No.  188
is 7 acre 84 cents.  By virtue of Exs. B1 to  B3,  the  first  defendant  is
entitled to get only 5 acre 10 cents  and  in  the  remaining   extent,  the
first defendant cannot claim any right, title and interest.”


26.   Thus, the High court has also affirmed  the  findings  of  the  courts
below that Temple is entitled for Survey No. 188/1 and 188/3  i.e.  5  acres
and 10 cents land. In spite  of  the  aforesaid  findings,  the  High  Court
proceeded to decree the suit on the basis of  its  reasoning,  as  given  in
paragraphs 16 & 18 of the judgment. Para 18 of  the  judgment  of  the  High
Court is as below:
"18. Considering the fact that no document has been filed  for  the  purpose
of establishing that Survey No. 188/2 stands in the  name  of  Janaki  Ammal
and also considering that the first defendant is not the absolute  owner  of
the entire extent of old Survey No. 188 except 5 acre 10 cents of land,  the
Court can very well declare that the plaintiff is  the  owner  of  the  suit
property and since it is seen from Ex. A30 that the  entire  extent  of  old
Survey number stands in the name of first defendant,  the  ancillary  relief
of mandatory injunction can also be granted in favour of the plaintiff.”


27.   The High Court proceeded on the premise  that  no  document  has  been
filed for purpose of establishing that Survey No. 188/2 stands in  the  name
of Janaki Ammal and further, the High Court proceeded that  First  Defendant
being not absolute owner of the old Survey No. 188 except  5  acres  and  10
cents, the plaintiff is the owner of the rest of the property.

28.   Thus virtually, the suit has  been  decreed  by  the  High  Court  for
Survey No. 188/2, whereas, Survey No. 188/2 was admittedly recorded  in  the
name of Janaki Ammal, who was not impleaded in the suit nor any  relief  was
claimed against the Janaki Ammal or for Survey No.188/2.  In  this  context,
it is useful to refer to the evidence of Plaintiff himself i.e. PW 1. PW  1,
in his deposition before the court, has admitted the fact  that  Survey  No.
188/2 is in the name of Janaki Ammal and he has  not  initiated  any  action
against her nor she was impleaded in the suit. Following statement was  made
by the PW 1 in his statement:
"It is correct to say that S.No. 188/2 stands in the name of  Janaki  Ammal.
Now the said Janaki Ammal sold that property to third  person.  I  have  not
initiated any action to include Janaki Ammal as a party to this suit.”


29.   In view of the statement of the  plaintiff  himself  that  Survey  No.
188/2 is in the name of Janaki Ammal, the observations  of  the  High  Court
that no documentary evidence was filed for the purpose of establishing  that
Survey No. 188/2 stands in the name of Janaki Ammal are erroneous  and  mis-
placed. When Plaintiff himself admitted that Survey No.  188/2  is  recorded
in the name of Janaki Ammal, there was no basis for the High Court  to  come
to conclusion that plaintiff is entitled for the area  apart  from  5  acres
and 10 cents, which belonged to the Temple.

20.   As noted above, one of the issues framed, as to whether  the  suit  is
bad for non-joinder of necessary party. The said issue was answered  against
the plaintiff and it was held that suit is bad  for  non-joinder  of  Janaki
Ammal a necessary party, whose name was recorded against Survey  No.  188/2.
Without adverting to the said findings of the trial court and the  Appellate
Court, the High Court has erroneously decreed the suit of the plaintiff.

31.   There is one more reason due to which the judgment and the  decree  of
the High Court cannot be sustained. The trial  court  in  its  judgment  has
categorically recorded findings that the Defendant No. 1  is  in  possession
of the suit property. In para 10 following findings have  been  recorded  by
the trial court:
"From the oral depositions and exhibits produced on behalf of  defendant  1,
it is clearly found that the suit property belonged to defendant 1  Arulmigu
Chokkanatha Swamy Temple and it  is  in  its  possession  for  a  long  time
continuously.”

32.   One of the submissions made before the courts below, on behalf of  the
defendant, was that the suit for mere declaration  when  the  plaintiff  was
not in possession of the property, was not maintainable and hit  by  Section
34 of The Specific Reliefs Act, 1963, the plaintiff having  not  sought  for
recovery of possession.

33.   Trial court, after considering  the  aforesaid  submissions,  recorded
its conclusions in para 14 which is to the following effect:
"From the facts of above cited suit, plaintiff in this suit has  prayed  for
the relief  of  declaration  without  seeking  the  relief  of  recovery  of
possession and under these  circumstances,  it  is  clearly  seen  that  the
plaintiff is not entitled to get such relief. Therefore,  it  is  held  that
the suit is not maintainable legally.”


34.   Section 34 of the Specific Reliefs Act, 1963 provides as follows:

"Section 34. Discretion of court as to declaration of status  or  right.-Any
person entitled to any legal character, or to any right as to any  property,
may institute a suit against any person denying, or interested to deny,  his
title to such character or right, and the court may in its  discretion  make
therein a declaration that he is so entitled, and the plaintiff need not  in
such suit ask for any further relief:

      Provided that no court shall  make  any  such  declaration  where  the
plaintiff, being able to seek further relief  than  a  mere  declaration  of
title, omits to do so.
      .....      .....      ....”


35.   In the present case, the plaintiff having been  found  not  to  be  in
possession and having only sought for  declaratory  reliefs,  the  suit  was
clearly not maintainable and has rightly been dismissed by the trial  court.
 In this context the reference  is  made  to  the  judgment  of  this  Court
reported in Ram Saran and Anr. versus Smt.  Ganga  Devi,  AIR  72  SC  2685,
wherein para 1 & 4 following was stated:
"1. This is a plaintiffs' appeal by special leave. Ram  Saran  and  Raghubir
Saran, the plaintiffs are brothers. They jointly owned  suit  property  with
Chhabili Kuer widow of Lalita Prasad. After the death of  Chhabili  Kuer  on
February 8, 1971, Ganga Devi the defendant in the suit came forward  as  the
legal representative of Chhabili Kuer and got the mutation effected  in  her
name in the place of the deceased Chhabili Kuer.  In  1958,  the  plaintiffs
brought this suit for a declaration that they are the  sole  owners  of  the
suit properties. They did not claim possession either of the entire or  even
any portion of the suit properties.

4. We are in agreement with the High Court that the suit is hit  by  Section
42 of the Specific Relief Act. As found by the  fact-finding  Courts,  Ganga
Devi is in possession of some of the suit properties.  The  plaintiffs  have
not  sought  possession  of  those  properties.  They   merely   claimed   a
declaration that they are the owners of the suit properties. Hence the  suit
is not maintainable.”


36.   The plaintiff, who was not in possession,  had  in  the  suit  claimed
only declaratory relief along with  mandatory  injunction.  Plaintiff  being
out of possession, the relief  of  recovery  of  possession  was  a  further
relief which ought to have been claimed by the plaintiff. The suit filed  by
the  plaintiff  for  a  mere  declaration  without  relief  of  recovery  of
possession was clearly not maintainable and  the  trial  court  has  rightly
dismissed the suit. The High Court neither adverted to the above finding  of
the trial court nor has set aside the above reasoning  given  by  the  trial
court for holding the suit as not maintainable. The High Court  in  exercise
of its jurisdiction under Section 100  C.P.C. could not  have  reversed  the
decree of the courts below without holding that the  above  reasoning  given
by the courts below was legally unsustainable. We, thus,  are  of  the  view
that the High Court committed error in decreeing the suit.

37.   The decree of the High Court is also  contradictory.  The  High  Court
has affirmed the findings that Defendant No. 1 is the owner  of  the  Survey
No. 188/1 and 188/3, whereas, by decreeing  the  suit  for  declaration  and
mandatory injunction the name of Defendant  No.  1  is  to  be  removed  and
replaced by plaintiff which is clearly erroneous and unsustainable.
38.   In view of the above, judgment of the High Court cannot be  sustained.
The High Court committed an error in reversing the judgments  of  the  trial
court and the First Appellate Court. In  result, the appeal is  allowed  and
the judgment of the High Court is set aside and those  of  trial  court  and
the First Appellate Court are restored.

                                        …….…...........................J.
                                                 (RANJAN GOGOI)


                                       .….....…...........................J.
                                                   (ASHOK BHUSHAN)
NEW DELHI,
FEBRUARY 10, 2017.

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