R.S.A No. 2916 of 2005 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A No. 2916 of 2005 Date of decision : December 17, 2008 Shanti Devi, ...... Appellant. through Mr.R.S.Mamli, Advocate v. Phoolo Devi (dead) through L.Rs and others ...... Respondents through Mr. Vikram Singh, Advocate CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J (Oral) This appeal has been filed against concurrent judgments of the Courts below decreeing the suit of the plaintiff for possession of the land in dispute along with a decree for use and occupation of the suit land. The dispute relates to the estate of one Nanha. The appellant is the daughter and respondent No.1 (since deceased), the daughter-in-law of his pre-deceased son in whose favour Nanha executed a Will. It is admitted that the respondents were dispossessed by the appellant in the year 1983 and that the appellant filed a suit for permanent injunction restraining the respondents from dis-possessing her except in due course of law, which was disposed of when respondent No.1 (who had even claimed them to be R.S.A No. 2916 of 2005 ::2:: owner of the property) made a statement that she would not dis-possess the appellant except in due course of law. Thereafter, the appellant filed another suit for declaration that the Will in favour of respondent No.1 had been cancelled. That suit was ultimately dismissed right up to this Court holding that the cancellation deed was forged. Thereafter, the respondent filed the present suit for possession and damages for use and occupation. Counsel for the appellant has argued two points. Firstly, it is asserted that the present suit is barred under Order 2 Rule 2 of the CPC. I do not see as to how the same can be held applicable. It is not the case of the appellant that respondent No.1 ever filed any earlier suit. However, the argument is that respondent No.1 should have filed a suit claiming this relief or should have filed a counter claim in the suit filed by the appellant. I see no warrant for this proposition of law. Order 2 Rule 2 of the CPC is applicable to those plaintiffs who do not claim full relief which is available to them. It can, in appropriate cases, be invoked against the defendants also but that would not be in the present case, since right from the beginning, respondent No.1 (defendant in the earlier suit) was claiming her ownership over the land in dispute. Learned counsel for the appellant has cited a judgment of this Court in Tilak Raj vs Baikunthi Devi and others, 2006(4) RCR (Civil) 536, wherein this Court held that fresh suit qua mis-described part of property is not competent. The facts in the present case are completely distinguishable, as shown above. With regard to mesne profit, learned counsel for the appellant has cited a judgment of the Rajasthan High Court in Amar Singh vs Ghanshyam and others, 2000(1) CCC 66 (Rajasthan) wherein it was held R.S.A No. 2916 of 2005 ::3:: that mesne profits cannot be ordered in a suit under Section 6 of the Specific Relief Act. The present is not a suit under the Specific Relief Act and, thus, the above judgment is not applicable to the present appeal. It is, thus, seen that for the last 25 years, the appellant has continued to be in illegal possession of the land belonging to the respondents. I find no justification for setting aside either the decree for possession or for damages for use and occupation of the suit land. Consequently, the appeal is dismissed with Rs.10,000/- as costs. ( AJAY TEWARI ) December 17 , 2008. JUDGE `kk'