V. M. Deshpande. J. - Challenge is set up in this second appeal to the judgment and decree passed in Regular Civil Appeal No.386/2011 delivered by learned District Judge-17, Nagpur wherein learned Judge of the appellate Court reversed the judgment and decree dated 03.06.2011 passed in Regular Civil Suit No.1132/1989 delivered by learned 19th Jt. Civil Judge Junior Division, Nagpur.
2. Initially, a suit for declaration and permanent injunction was filed by respondent/plaintiff against the original defendant, Pralhad Yadav alias Pralhad Ramsare Pali. The said suit was registered as Regular Civil Suit No.1132/1989. During the pendency of the said suit, defendant Pralhad expired. Therefore, appellants in this second appeal were brought on record.
Parties in this appeal will be referred to by their original positions in the suit.
3. By filing the suit, the plaintiff contended that the suit house was originally belonging to one Baliram Bhagwandin Pardesi. He inducted the plaintiffs father as tenant in one portion of the house. The plaintiff is in occupation and possession of the house bearing municipal Corporation House No. 1243/0-3 (Old) 536 (New) near Hanuman Mandir, Gokulpeth, Nagpur. The plaintiffs father was inducted as tenant by Baliram in the year 1947. Baliram died on 23.10.1981. He was not having any near relatives and as such he was residing in one room in the suit premises alone during his lifetime.
4. The plaintiff used to reside along with his father in the suit house during the lifetime of plaintiffs father. Plaintiffs fatherdied on 29.09.1984 and after his death, the plaintiff continued his possession in the suit house.
It is also stated that the plaintiffs father and another tenant by name Bhagwan Pardeshi used to pay corporation taxes since their landlord Baliram was not paying the corporation taxes. Consequently, the suit house was put for auction by corporation authorities for not paying the taxes. Therefore, ultimately, the plaintiffs father and another tenant Pralhad Pardeshi deposited the entire amount and saved the house from public auction. Both of them continued to pay taxes regularly thereafter.
5. Baliram died intestate. In the year 1982 i.e. after one year of death of Baliram, original defendant Pralhad came to the suit house and alleged that he is the son of maternal uncle of Baliram. Attempts were made to evict the plaintiff from the suit house forcibly and without following the due process of law. Therefore, a complaint was lodged with Police Station, Ambazari. Since a portion of suit house occupied by the plaintiff became very dilapidated, on 13.04.1989, the plaintiff approached to the corporation authorities for grant of permission to carry out necessary repairs. The corporation authorities gave permission vide notice dated 16.05.1989 and allowed the plaintiff to carry out repairs. While carrying out the necessary repairs to the suit house, original defendant started continuous obstruction. Consequently, plaintiff was required to file a suit for declaration and injunction.
Along with the suit, plaintiff also filed an application under Order XXXIX Rule 1 and 2 read with Section 151 of the Code of Civil Procedure (CPC) for grant of temporary injunction with following prayers:
(i) Grant exparte temporary injunction in favour of the plaintiff and against the defendant restraining him personally, his agents, servants, attorneys or through anybody else from interfere into, enjoyment and possession of the plaintiff and also to carry out repairing work of the suit premises as per notice dated 16.5.1989 issued by authorities of the Corporation under Section 189 (1) of the City of Nagpur Municipal Corporation Act, pending final decision of the case and on issuing show cause notice and on hearing both parties, confirm the same.
(ii) Grant any other relief deemed fit and proper in awarding justice to the plaintiff."
6. The application was contested by original defendant.
The learned trial Court, on 31.05.1989, allowed the application for temporary injunction. It would be useful to reproduce hereinbelow the operative portion of the said order:
ORDER
Application Exh.-5 is allowed. The defendant or anybody through him is hereby restrained from interfering into the enjoyment and possession of the plaintiff except due process of law and also restrained from interfering to carry out repairing work of suit premises as per notice dated 16.5.1989 issued by the Corporation Authority pending final decision of this suit. 2. Parties to bear their own costs.
Date: 31.05.1989 Sd/-
10th Jt. Civil Judge Junior Division, Nagpur.
7. The suit was resisted by original defendant Pralhad by filing his written statement. The written statement is at Exh.-27. The defendant denied the claim of the plaintiff. Plaintiffs tenancy was also denied. As per the defendant, he being the son of maternal uncle of deceased Baliram, he inherited the suit house. Therefore, his name was recorded in revenue records. In short, it was the case of the defendant that plaintiff is stranger and has no right over the suit house. Therefore, prayer for dismissal of the suit was made.
8. During the pendency of the suit, the suit house came to be demolished by officer of the Nagpur Municipal Corporation on 12.03.1991. Based on this cause of action, the plaintiff filed a separate suit under Section 6 of the Specific Relief Act on 22.03.1991 for possession. The said suit was registered as Regular Civil Suit No.710/1991. On 06.01.1996, plaintiff filed an application under Order VI Rule 17 of the CPC for amendment of plaint (Exh.-46), by which subsequent event dated 12.03.1991 was sought to be incorporated in the plaint with consequential prayer. On 10.09.1996, the said application (Exh.-46) was allowed by the learned Judge of the trial Court. Consequently, the plaint was amended. The amended prayer was for grant of mandatory injunction. It would be useful to reproduce the said prayer:
"1-a. Grant mandatory injunction in directing the defendant to construct residential premises on the suit site which was standing on the date prior to 12.03.1991 and maintain status quo ante prior to 12.03.1991 i.e. prior to demolition by corporation authorities at his costs. If the defendant failed to carry out the said construction within three months from the date of the order/decree, the plaintiff be put to in possession of the suit site of the tenanted premises and reconstruct the same at its original stage at the costs of the defendant."
9. On rival pleadings, the learned Judge of the trial Court framed in all ten issues. Thereafter, the parties to the suit entered into witness box and adduced their oral as well as documentary evidence to substantiate their respective claims. The learned 10th Civil Judge Junior Division dismissed the suit on 03.06.2011. It would be useful to reproduce hereinbelow the issues and findings recorded by the trial Court against each of them as under:
| Sr. No. | ISSUES | FINDINGS |
| 1 | Whether the father of the plaintiff was the tenant of late Baliram and the tenancy was inherited by the plaintiff | Affirmative |
| 2 | Whether the defendant lawfully inherited the suit property after the death of Baliram | Negative |
| 3 | Whether the replacement of padpa wall by constructing a brick wall amounts to new construction | Affirmative |
| 4 | Whether the plaintiff by the order dated 16-05-1989 has carried out only repairs in the suit premises | Negative |
| 5 | Whether the suit premises was visited by any officer of N.M.C. prior to 12-03-1991 | Affirmative |
| 6 | Whether the suit is bad on the ground of principle of merger and in the absence of any cause of action | Negative |
| 7 | Whether the suit has become infructuous in view of filing of R.C.S.No.710/1991 and in view of non existence of the suit house and in view of cancellation of notice dated 16-05-1989 | Negative |
| 8 | Whether the suit is barred by limitation | Negative |
| 9 | Whether the plaintiff is entitled for the relief as prayed for | Negative |
| 10 | What order & decree | As per final order |
Thus, findings on issue nos. 1, 2, 6, 7, 8 and 9 were recorded in favour of the plaintiff. As such, the learned Judge of the trial Court accepted the claim of the plaintiff that father of the plaintiff was tenant of late Baliram and tenancy was inherited by the plaintiff. At the same time, the learned Judge of the trial Court negatived the claim of defendant Pralhad that he lawfully inherited the suit property after death of Baliram.
10. Being aggrieved by judgment and decree dated 03.06.2011 dismissing the suit, plaintiff filed an appeal under Section 96 of the CPC before the appellate Court. The said appeal was registered as Regular Civil Appeal No.386/2011. Though, issues were answered in the negative against the defendant, they were not challenged before the appellate Court.
11. Having heard the parties to the appeal, the learned Ad hoc District Judge-1, Nagpur was pleased to allow the appeal and decreed the suit by passing the decree as under:
"ORDER
i. Regular Civil Appeal is allowed.
ii. Impugned judgment and decree dated 03-06-2011 passed in Reg. Civil Suit No. 1132/1989 by 19th Jt. Civil Judge Junior Division, Nagpur is set aside.
iii. The defendants are directed to compensate to the plaintiff to construct residential premises on the suit site which was standing as on 12-03-1991.
iv. Decree be drawn up accordingly.
v. R&P be sent back immediately.
vi. Copy of order be sent to the trial Court for information.
vii. Reg. Civil Appeal No. 386/2011 is disposed of accordingly.
Judgment is dictated, delivered and pronounced in an open court.
Nagpur Sd/-
Dated: 01 -03-2017 Ad hoc District Judge-1 & Addl. Sessions Judge, Nagpur
12. On 29.03.2017 i.e. after pronouncement of the aforesaid judgment and decree, the plaintiff filed an application under Section 152 read with Section 151 of the CPC contending therein that some reliefs are not incorporated in the judgment/ operative order though in the judgment, finding is recorded in favour of the plaintiff. The said application was registered as MANRJE No.12/2017. The said application was contested by the appellants/defendants and after hearing the defendants, on 03.05.2017, the said application was allowed and the decree and operative order was corrected as follows.
i. Regular Civil Appeal is allowed.
ii. Impugned judgment and decree dated 03-06-2011 passed in Reg. Civil Suit No. 1132/1989 by 19th Jt. Civil Judge Junior Division, Nagpur is set aside.
iiii. The defendants i.e. legal heirs of Pralhad Yadav have no locus standi to interfere into the peaceful possession and enjoyment of the suit premises which was in occupation and possession of the plaintiff.
iv. The defendants are directed to compensate to the plaintiff to construct residential premises on the suit site which was standing as on 12-03-1991.
v. If the defendants failed to compensate to the plaintiff for the construction of the residential house on the suit premises within a period of two months, in that case, the plaintiff has a right to construct the residential premises on the suit premises and the plaintiff shall have a right to recover expenses of the construction of the house premises from the defendants.
vi. The defendants or his agents or the servant or attorney or acting on their behalf have no right to disturb the peaceful possession and enjoyment of the plaintiff over the suit premises.
vii. Decree be drawn up accordingly
viii. R&P be sent back immediately
ix. Copy of order be sent to the trial Court for information.
x. Reg. Civil Appeal No. 386/2011 is disposed of accordingly.
Nagpur Sd/-
Dated: 03-05-2017 District Judge-17 & Addl.
Sessions Judge, Nagpur
13. Being aggrieved by the appellate Court's verdict, the present second appeal is filed.
On 16.08.2017, in the present second appeal filed by original defendants, this Court (Coram: A.S. Chandurkar, J.) issued notices on the following substantial questions of law:
"Whether in a suit for perpetual injunction the first appellate Court could have directed the appellants to reconstruct the premises for the respondent, particularly when the substantive suit for possession filed by the respondent against the appellants, the officers of the Nagpur Municipal Corporation and the subsequent purchaser Smt. Malti Shairey was dismissed "On the same day, interim relief was also granted. On 08.08.2018, another substantial question of law was formulated which reads thus:
"Whether the judgment in Regular Civil Appeal No.386/2011 contains sufficient reasons for granting the reliefs as per operative order as modified on 03.05.2017"
14. On 05.12.2018, this Court (Coram: Rohit B. Deo, J.) passed an order on considering nature of the dispute, the second appeal can be finally decided and thereafter record and proceedings were summoned. Accordingly, record and proceedings were received in this Court.
15. I have heard Mr. Shareef, learned counsel for the appellants/defendants and Mr. Sadavarte, learned counsel for respondent/plaintiff in detail and also perused the entire record with their able assistance.
16. Learned counsel for appellants/defendants would urge that the judgment and decree passed by learned lower appellate Court is not in consonance with the provisions of Order XLI Rule31 and Order XX Rule 4 (2) of the CPC. He submits that Regular Civil Suit No.710/1991 was dismissed. He submitted that the plaintiff thereafter challenged the judgment and decree in Regular Civil Suit No.710/1991 by filing appeal but the same was disposed of as not maintainable. Based on this fact, learned counsel for appellants/defendants submits that respondent/plaintiff is not entitled to the relief which has been granted by impugned judgment. It is also his submission that the suit is also barred in view of the provisions of Order II Rule 2 of the CPC. Lastly, he prayed for remand of the matter for fresh consideration at the hands of the learned lower appellate Court. In support of his submissions, learned counsel for the appellants placed reliance on the following authorities :
(i) 2017 (11) SCALE 163 (Kanailal and others .vs. Ram Chandra Singh and others)
(ii) 2011 (5) Mh.L.J. 312 (Uttar Pradesh Avas Evam Vikas Parishad. vs. Sheo Narain Kushwaha and others)
(iii) 2014 (4) Mh.L.J. 760 (Bhaskar S/o Narayan Khandare and others .vs. Ramesh S/o Bhimrao Ghogre and others)
(iv) 2012 (3) Mh.L.J. 310. (Barners School and another .vs. Arzoo Allan Baker)
(v) C1999) 5 SCC 590 [LQ/SC/1998/1064] (Hope Plantations Ltd. .vs. Taluk Land Board, Peermade and another.)
(vi) (2013) 1 SCC 625 [LQ/SC/2012/762] . (Virgo Industries (Eng.) Pvt. Ltd. .vs. Venturetech Solutions Pvt. Ltd.)
17. Per contra, learned counsel for respondent-plaintiff supported the impugned judgment and decree. He submitted that the first substantial question of law is outside the ambit of the facts of the case. It is his submission that the grounds taken in the appeal are not in conformity with the pleadings. He submits that dismissal of suit under Section 6 of the Specific Relief Act is not having any consequence and/or is inconsequential because on the date of passing of the decree dated 03.06.2011, the suit house was not in existence and therefore there was no question of placing plaintiff in possession. It is his submission that the decree in Section 6 Specific Relief Act has no bearing in respect of the decree in the present suit inasmuch as scope of said suit is very limited it being summary in nature. Any finding recorded in such a suit cannot operate as res judicata. He then submits that modification in the judgment pursuant to the order dated 03.05.2017 is based on the findings which were already recorded by the first appellate Court and no change was made in the finding. It is submitted that the finding as recorded by the Court below in respect of the status of the plaintiff as tenant is based on the appreciation of the plaintiffs evidence available on record. He submits that action of demolition of the suit house is in breach of order dated 31.05.1989 and therefore, the appellants/defendants cannot be permitted to take advantage of their own wrong. He then submitted that appellants/defendants did not raise challenge to the issues which were answered against them. On this submission, he prayed for dismissal of the appeal. In support of his submission, he placed reliance on the following authorities.
(i) 2014 (2) All MR 120 (Sudhir S/o Namdeorao Sonone .vs. Dr. Panjabrao Smurti and another)
(ii) AIR 1996 Bombay 389 (Hind Rubber Industries Pvt. Ltd. .vs. Tayebhai Mohammedbhai Bagasarwalla and others)
(iii) 2014 (6) ALL MR 465 (SC) (M/s Shaha Ratansi Khimji and Sons .vs. Proposed Kumbhar Sons Hotel P. Ltd. and others.)
(iv) AIR 2000 Calcutta 32. (Priya Brata Maity.vs. State of West Bengal)
(v) AIR 2004 SC 4609 [LQ/SC/2003/1276] (Rame Gowda (D) byLRs .vs. M. Varadappa Naidu (D) by LRs and another)
(vi) AIR 1992 GUJRAT 155 (Trikamlal Manilal Shah .vs. Musamiya Isam Haiderbux Razvi)
(vii) C2015) 9 SCC 755 [LQ/SC/2015/857] (Nandkishore Lalbhai Mehta .vs. New Era Fabrics Pvt. Ltd. and others)
(viii) 2008 (2) All MR 205 (Balabhai Associates .vs. Municipal Corporation of Gr.Bombay)
(ix) AIR 2010 Karnataka 70 (Ashok Kumar Chowan & anr .vs. A.G. Anwar AH & Anr.)
(x) 2014 (2) Mh.L.J. 150 (Mohd. Mehtab Khan and others .vs. Khushnuma Ibrahim Khan and others)
(xi) C2002) 3 SCC 137 [LQ/SC/2002/272] . (S.R.Ejaz .vs. T. N. Handloom Weavers Co-operative Society Ltd.)
(xii) C2004) 4 SCC 664 [LQ/SC/2004/465] . (Sanjay Kumar Pandey and others . vs. Gulbahar Sheikh and others)
18. It is a pristine principle of law that each case has to be looked into on the basis of its factual situation. Admittedly, the parties to this appeal are fighting this legal battle since 1989 i.e. for almost three decades. In view of the special feature of this case, I am of the considered opinion to decide the controversy involved in this appeal finally by taking aid of Section 103 of the CPC, which empowers the High Court to decide question of facts in second appeal, if the evidence on record is sufficient to determine any issue necessary for final disposal of the appeal. Though it has not been determined by the lower appellate Court or by the Court of first instance and the lower appellate Court.
19. In order to decide the first substantial question of law, it would be apposite to refer to Section 6 of the Specific Relief Act, which reads thus:
"6. Suit by person dispossessed of immovable property:
(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought-
(a) after the expiry of six months from the date of dispossession; or
(b) against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof."
Language of Section 6 (4) clearly stipulates, nothing contained in said provision would bar any person from suing to establish, by way of an appropriate suit, his title to the property as was subject matter of the suit seeking repossession thereof.
20. In other words, Section 6 of the Specific Relief Act is the only provision to be invoked to put back full possession of a person dispossessed illegally of a property that he was proved to be in possession regardless of the fact that whether he/she was the owner of the said property or not.
Thus, the only thing to be seen in such a suit is that the person who has instituted the said suit is actually proved to be in possession of the property and that he has filed the said suit within a period of six months from his/her having been illegally dispossessed therefrom.
21. I have gone through the judgment dated 03.06.2011 passed in Regular Civil Suit No.710/1991 under Section 6, which was placed for my perusal. Having gone through the findings recorded in the said suit, it is apparent that the controversy which was examined by the Court below is restricted to the arena of Section 6 of the Specific Relief Act and relief was claimed only on the ground that the plaintiff therein has failed to prove dispossession from the premises therein within six months prior to the date of presentation of the plaint. However, interestingly, the trial Court has recorded a specific finding that the plaintiff herein was in possession of the suit premises within six months prior to the date of filing of the suit. Further, relief to the plaintiff appears to have been declined on the principal ground that the suit house has been demolished by the Nagpur Municipal Corporation and therefore the possession of the house which is not in existence cannot be restored. In my view, no adverse observations were made by the trial Court in the judgment in the suit under Section 6 of the Specific Relief Act especially in regard to the possession of the plaintiff over the suit house.
22. Admittedly, the respondent/plaintiff has set up a specific case that on the date of filing of the suit in question i.e. Regular Civil Suit No. 1132/1989, he was in possession of the suit house and the said fact is not disputed by appellants/defendants as can be seen from the reply Exh.-8 to the application for injunction. The plaintiffs claim is that he is in possession of the suit house in the capacity of tenant and in order to substantiate his claim of tenancy he led evidence in the form of oral as well as documentary evidence. Learned Judge of the trial Court in paragraph nos.42 to 44 has rightly observed that the plaintiffs claim about the tenancy is substantiated in view of the documents Exh.-71 to 76 and 83 to 85. Though, learned Judge of the appellate Court did not touch to the said aspect, in my considered view, there is sufficient evidence on record that the respondent/ plaintiff has duly proved his claim about the tenancy over the suit house.
23. Nowhere appellants/defendants have brought on record how the plaintiff is in possession of the suit house especially when possession of the respondent/plaintiff is not denied by appellants/defendants. Further, there is no evidence on record in respect of determination of tenancy of father of the plaintiff as well as the plaintiff. In that view of the matter, I have no hesitation to record a finding that on the date of filing of the suit in question, the plaintiff was in possession of the suit house in the capacity of tenant.
24. The preposition of law in respect of possession is well settled even if there is no title to support it. It will not be appropriate for any person to take law in his own hand and to dispossess a person in actual possession without taking the course of law. A useful reference can be made to the observations of the Hon'ble Apex Court in the case of Krishna Ram Mahale (Dead) by His Lrs vs. Mrs. Shobha VenkatRao, reported in AIR 1989 SC 2097 [LQ/SC/1989/394] in which it is observed that it is well settled law that where a person is in settled possession of the property, even on assumption that he had no right to remain on the property, he cannot be dispossessed by owner of the property except by recourse of law.
25. In the case in hand, appellants/defendants have even failed to prove their ownership over the suit premises as rightly observed by the learned Judge of the trial Court by holding that the appellants had failed to prove that they have inherited the suit property after the death of Baliram. The status of the respondent/ plaintiff being tenant of the suit property is substantiated by sufficient material adduced on record.
26. Submission of learned counsel for respondent/plaintiff is well merited that even after destruction of the building and lease property, tenancy right continues to exist between the parties. A useful reference to the judgment in Hind Rubber Industries Pvt. Ltd. (supra) clearly clinches the issue in favour of the respondent plaintiff. It would be appropriate to refer that the said view of this Court in Hind Rubber Industries Pvt. Ltd. (supra) was affirmed by the Hon'ble Apex Court in M/s Shaha Ratansi Khimji and Sons (supra). Therefore, I have no hesitation to hold that in absence of any evidence in respect of the determination of the tenancy of the plaintiff, there cannot be a leverage to the appellants/defendants to oppose the relief of mandatory injunction only on the ground that the structure is lost or demolished, especially when same has been demolished during the pendency of the suit and when the order of injunction was in operation.
27. Having regard to the discussion made as above, I am of the view that proceedings under Section 6 of the Specific Relief Act, in any event, cannot be termed as substantive suit and therefore any finding recorded in the judgment in the suit filed under Section 6 of the Specific Relief Act cannot operate as res judicata. Thus, only dismissal of Section 6 suit does not disentitle the respondent/plaintiff from the relief of mandatory permanent injunction, especially when nothing adverse is observed about settled possession of plaintiff on the date of filing of suit which gives rise to the present second appeal. Thus, I am of the considered view that the first question of law will have to be answered against the appellants/defendants.
28. An another question of law was framed in this appeal on 08.8.2018, which deals with the aspect which has surfaced in the matter after the decree was modified by the appellate Court on 03.05.2017.
In the preceding paragraphs of this judgment, I have already reproduced the operative part of the judgment delivered by the first Appellate Court on 01.03.2017 together with the modification to it in pursuance to the order dated 03.05.2017 in MANRJE No. 12/2017 passed by the first Appellate Court.
29. In order to answer this issue, it would be useful to reproduce Section 152 of the CPC.
"Section 152 - "Amendment of judgments, decrees or orders"
Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties."
30. On a perusal of Section 152 of the CPC, it is apparent that the same empowers the Court to correct its own error in a judgment and decree/order from any accidental slip or omission. The principle behind the said provision is "Autus Curiae Neminem Gravabit" which means nobody shall be prejudiced by an act of the Court.
31. Here, it would be useful to refer to the observations of the Hon'ble Apex Court in paragraph 14 of the judgment in Lakshmi Ram Bhuyan vs. Hari Prasad Bhuyan reported in AIR 2003 SC 351 . which reads thus:
"14. In our opinion, the successful party has no other option but to have recourse of Section 152 of Civil Procedure Code which provides for clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission being corrected at any time by the Court either on its own motion or on the application of any of the parties. A reading of the judgment of the High Court shows that in its opinion the plaintiffs were found entitled to succeed in the suit. There is an accidental slip or omission in manifesting the intention of the Court by couching the reliefs to which the plaintiffs were entitled in the event of their succeeding in the suit. Section 152 enables the Court to vary its judgment so as to give effect to its meaning and intention. Power of the Court to amend its orders so as to carry out the intention and express the meaning of the Court at the time when the order was made was upheld by Bowen L.J. in re Swire; Mellor V.Swire, (1885) 30 Ch. D. 239, subject to the only limitation that the amendment can be made without injustice or on terms which preclude injustice. Lindley L.J. observed that if the order of the Court, though drawn up, did not express the order as intended to be made then "there is no such magic in passing and entering an order as to deprive the Court of jurisdiction to make its own records true, and if an order as passed and entered does not express the real order of the Court, it would, as it appears to me, be shocking to say that the party aggrieved cannot come here to have the record set right, but must go to House of Lords by way of appeal"
Having regard to the aforesaid proposition quoted, I am of the considered view that the decree has to contain the conclusion based on the statements or the findings given by the learned Judge in the judgment.
32. Reverting to the facts of this case, admittedly, no change or modification has been made in the judgment and the only change which was effected was in its operative part. Both the Courts below as well as this Court has recognized the status of the respondent/plaintiff as a tenant and it is also concluded that on the date of filing of the suit in question, the respondent/plaintiff was in possession of the suit premises. Further, there is no evidence on record which remotely suggests that the tenancy of the respondent/plaintiff was determined at any point of time. In the teeth of the findings recorded hereinabove, there cannot be any iota of doubt that the respondent/plaintiff is entitled for relief of mandatory injunction. Once the relief of mandatory injunction is granted in favour of the respondent/plaintiff, I do not think that the judgment of the first Appellate Court lacks any reasoning and modified operative order is without any finding. The directions given in clauses (iii) to (vi) of the operative order are consequential in nature for the relief of mandatory injunction. Accordingly, the substantial question is answered against the appellants by holding that the judgment in Regular Civil Appeal No. 386/2011 contains sufficient reasons for granting relief as per the operative order as modified on 03.5.2017.
33. On re-evaluation of the conspectus, both factually and position of law, I am of the opinion that this second appeal deserves to be dismissed and accordingly, it is dismissed. Needless to mention, interim order stands vacated. No order as to costs.
