# Lakhraj & Ors v. Chandar & Ors - **Citation:** (2016) 4 ILRA 45 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-04-04 - **Bench:** Pramod Kumar Srivastava - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lakhraj-ors-v-chandar-ors-43651 - **Pages:** 5 ## Text 4 All. Lakhraj & Ors. Vs Chandar & Ors. 45 respondent authority shall consider and shall do the needful to decide the same in the light of aforesaid observations as well as the observations of the Hon'ble Apex Court in the above cited judgments within two months. 10. According, this Special Appeal is disposed of. ---------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 04.04.2016 BEFORE THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J. Second Appeal No.- 1287 Of 1988 Lakhraj & Ors. ...Appellants Versus Chandar & Ors. ...Respondents Counsel for Appellants: S.K. Verma, Siddhartha Varma Counsel for Respondents: M.A. Zaidi, Abbas Zaidi, O.P. Chaurasia, R.S. Ram HELD Where ownership of the disputed property is proved in favour of the plaintiff, mere illegal possession of the defendant does not defeat the plaintiff's right to recover possession, particularly when adverse possession is not established. A suit initially filed for permanent injunction can validly result in a decree for delivery of possession, if facts on record establish that the plaintiff is the true owner and the defendant is in unauthorized possession. Order XLI Rule 33 CPC confers wide discretionary power upon the appellate court to pass such decree or order which ought to have been passed, even if: no appeal or cross-objection has been filed by the successful party, and the relief ultimately granted was not expressly decreed by the trial court. The appellate court can mould the relief in favour of the respondent to ensure complete justice, provided the foundational facts are proved and the relief flows naturally from the pleadings. Absence of a specific prayer for possession is not fatal, where: 46 INDIAN LAW REPORTS ALLAHABAD SERIES ownership of the plaintiff is established, defendant's possession is found illegal, and the plaint contains an alternative prayer such as "any other relief". Technical objections regarding the form of relief cannot override substantive justice, especially where denial of possession to the rightful owner would perpetuate illegality. Once the first appellate court records a clear finding that: the plaintiff is the owner, and the defendant has failed to prove adverse possession, the plaintiff is entitled to recovery of possession as a natural legal consequence. Exercise of power by the first appellate court under Order XLI Rule 33 CPC directing the defendant to hand over possession is legal, justified, and does not suffer from jurisdictional error. The substantial question of law framed in the second appeal is answered in the affirmative, i.e., in favour of the plaintiff and against the defendants. The second appeal is dismissed, and the judgment and decree of the lower appellate court are affirmed. (Delivered by Hon'ble Pramod Kumar Srivastava, J.) 1. In original suit no 244/1982 (Chandar & others v. Lakhraj & others), the case of plaintiffs was that they are owner in possession of disputed abadi land detailed at the foot of plaint, but defendants are unauthorizedly trying to interfere in their possession, therefore, they have filed suit for permanent injunction and for relief of restraining the defendants from interfering in their possession of disputed land. In alternative, plaintiffs had sought relief that if it appears that any possession of defendant is found over disputed hut then possession of same be delivered to plaintiffs. 2. The defendants had filed written statement denying the plaint averment and pleaded that plaintiffs are neither owner nor in possession of disputed property. The disputed property was ancestral and it had come in share of defendants after partition. The defendant no.-1 and his family in use of occupation of disputed land. Plaintiffs have been watching the possession of defendants over disputed property, but they have not opposed it, and not objected the defendants, therefore, their suit is barred by principle of estopple and acquiescence, and is liable to be dismissed. 3. After affording opportunity of hearing to the parties, the Court of Munsif, Ghazipur has passed the judgment dated 3.2.21984 by which plaintiffs' suit was decreed and defendants were restrained from interfering in possession of plaintiffs over disputed land. 4 All. Lakhraj & Ors. Vs Chandar & Ors. 47 4. Aggrieved by the judgment of first appellate court civil appeal no. 39/1984 (Lakhraj & others v. Chandar & others) was preferred by defendants of original suit, which was heard and dismissed by the judgment dated 22.4.1988 of 3rd Additional District Judge, Ghazipur. First appellate court had also appreciated the evidence of the parties and held that disputed land belong to ownership of plaintiffs but it is in possession of defendant Lakhraj. The first appellate court has also gave specific finding that it is not proved that defendant Lakhraj had possession of disputed property for more than 12 years or has perfected any right by an adverse possession, therefore, appeal of defendants should be admitted. First appellate court has also held that its finding of trial court is not proper that defendant no. 1 is not in possession of disputed property. First appellate court had held that the possession of defendants is illegal, and at the time of dismissing the first appellate court had exercised its power under Order-41 Rule-33 CPC and amended the judgment and decree of trial court with direction that relief of permanent injunction granted by the trial court was confirmed, but defendants were directed to handover their possession over disputed property within two months. Aggrieved by this judgment of trial court and first appellate court, present second appeal has been preferred by defendants of original suit. 5. Second appeal was admitted with following substantial question of law : "Whether on the finding recorded by the first appellate court about the possession of defendants over the land in dispute, could be plaintiffs suit be decreed in terms of the relief claimed in the plaint ?" 6. Learned counsel for the appellant contended that trial court had decreed the suit only for the relief of permanent injunction and not for the relief of mandatory injunction delivery or possession. No appeal or cross-objection was filed by the plaintiffs/ respondents against the said judgment for seeking relief of possession. In such circumstances, it was legally not possible for first appellate court to exercise powers under Order-41, Rule-33 CPC. He contended that unless the appeal or cross-objection is allowed no relief can be granted to respondents, therefore judgment of first appellate court is erroneous and liable to be set aside. 7. Learned counsel for the respondent contended that ownership of plaintiffs over disputed property has been proved by the trial court and has been confirmed by the first appellate court. The findings of two courts below in that regard has become final. In this situation, plaintiffs/respondents is always entitled to retain possession of property of his title. He contended that first appellate court had rightly has exercised its jurisdiction order Rule-33 of Order-41 CPC and passed the directions which are not erroneous, therefore, appeal should be dismissed. 8. There had been concurrent and acceptable finding of fact that disputed land belonged ownership of plaintiffs but it is in possession of the defendant Lakhraj. The first appellate court has also given specific finding that it is not proved that defendant Lakhraj had possession of disputed property for more than 12 years or has perfected any right by an adverse possession, therefore defendant cannot acquired any right on basis of alleged such possession. Since it has been proved that the plaintiff is owner of disputed property and defendant has no right over it. therefore the 48 INDIAN LAW REPORTS ALLAHABAD SERIES defendant appellant cannot oppose the right of plaintiff respondent to acquire possession of such property. But point to be considered is that as to whether appellant can get relief in proceeding initiated for prohibitory injunction, in absence of actual possession. 9. The question is as to whether in present matter the plaintiff-appellant can get such relief. In plaint of the plaintiff-appellant alternative 'any other relief' was sought. Whether he could be granted relief of recovery the possession and whether such relief may be granted to appellant in first appeal is the point to be considered. 10. Order 41, Rule 33 CPC read as under: "33. Power of Court of Appeal - The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstandng that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees: Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to made such order." 11. This provision makes it clear that the appellate court has power to pass any decree which ought to have been passed. In present matter it is proved that plaintiffs are the owner of disputed property, therefore they are entitled to take over this possession. 12. Conventionally, this relief is sought in every plaint that if the plaintiff is found entitled for any relief, it may be granted to him. Conventionally this issue is generally framed in every suit that to what relief, if any, plaintiff is entitled. The purpose of these two practices is that if the plaintiff is found entitled for any relief, then the Court should and may grant such relief, without going into minor technicalities. It comes within inherent jurisdiction of the Court. In present matter also the plaintiff had prayed for grant of any relief, to which he is found entitled; and also issue was framed by the trial Court as to what relief, plaintiff is found entitled. In the present matter it is found that plaintiff-respondent being owner of disputed property is entitled for recovering its possession. Therefore, he is entitled for the decree to that effect. Apart from it, as discussed above, this is a fit case where the powers of Court under Rule 13 of Order 41 C.P.C should be exercised. The impugned judgment of lower appellate Court is not infirm or erroneous, which is confirmed. Accordingly the above mentioned substantial question of law is decided in affirmative, against appellant and in favour of plaintiff-respondent. 4 All. Lok Prahri Through General Secretary Vs Union Of India & Ors. 49 13. The only substantial question of law has been decided against appellant, and in favour of respondent. The other points relating to matter in dispute and the relief sought has already been decided in favour of the respondents. In these circumstances this second appeal is, hereby, dismissed. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 20.04.2016 BEFORE THE HON'BLE DR. DHANANJAYA YESHWANT CHANDRACHUD, C.J. THE HON'BLE RAJAN ROY, J. Misc Bench No.- 1620 Of 2004 Lok Prahri Through General Secretary ...Petitioner Versus Union of India & Ors. ...Respondents Counsel for Petitioner: S N Shukla Counsel for Respondents: B B Saxena, Arpit Kumar, Ashok Nigam, Asit Kumar Chaturvedi, CSC, Pratyush Tripathi, Raj Bahadur The present writ was instituted by a society registered under the Societies Registration Act, 1860, seeks to challenge the constitutional validity of the amendments made by Parliament to the Salary, Allowances and Pension of Members of Parliament Act, 19541. The petitioner has challenged the validity of the provisions by which Parliament has legislated to provide for pension and for the grant of facilities to former members of Parliament. Court held that the grant of family pension to the spouse or dependent of a former member of Parliament is a matter of legislative policy. There is no constitutional prohibition on Parliament adopting such a measure of social security for its former members. The nature and extent of payment are not such as would implicate the vice of arbitrariness under Article 14. The introduction of a provision for the grant of a family pension is in the nature of a social welfare measure intended to provide a sense of security to a spouse or dependent of a member of Parliament who has died. The expression 'dependent' has been defined by Section 2 (aa). List of Case Cited 1. Common Cause Vs Union of India AIR 2002 SC 199 (Delivered by Hon'ble Dr. Dhananjaya Yeshwant Chandrachud, C.J. & Hon'ble Rajan Roy, J.)