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Madhya Pradesh High Court · body

2008 DIGILAW 171 (MP)

Ramrani w/o Govind Singh v. Durga Bai

2008-01-31

A.K.SHRIVASTAVA

body2008
JUDGMENT The defendants have filed this Second appeal assailing the impugned judgment and decree passed by the learned Additional District Judge, Khurai in Civil Appeal No. 44-A of 1992 allowing the appeal of plaintiffs and thereby decreeing their suit which was dismissed by the trial Court vide its judgment dated 28.8.1992 passed in Civil Suit No. 19-A of 1988. 2. In brief the case of plaintiffs as borne out from his plaint is that they filed a suit for declaration of Bhumiswami right and injunction in respect to certain agricultural land which is subject-matter of the suit and the description whereof is mentioned in the plaint. In para-2 specific pleading of the plaintiffs is that since 1971 they are in possession of the suit property as owner in the knowledge of defendants and their predecessors and, therefore, they have acquired Bhumiswami right on the suit property on the basis of adverse possession. Since, defendants are threatening to dispossess the plaintiffs from the suit property, a decree of perpetual injunction has been sought by the plaintiffs. 3. The defendants-appellants refuted the plaint averments by filing joint written statement. The Trial Court thereafter framed necessary issues and issue No. 2 was framed in respect to acquisition of Bhumiswami right by adverse possession. The trial Court after recording the evidence while deciding issues 1 and 2 from para 8 to 18, specifically held in para -12 that plaintiffs have come forward on the basis of specific plea of adverse possession and not on the basis of title and since no evidence has been led by them on the point of adverse possession, on the contrary, they have led evidence on title that how they are title holder of the suit property and derived their title, their suit cannot be decreed and eventually dismissed the suit. 4. The appeal which was filed by the. plaintiffs has been allowed by the impugned judgment and decree and their suit has been decreed. 5. In this manner this second appeal has been filed. This Court on 16-3-1994 admitted the second appeal on the following substantial question of law: "Whether the First Appellate Court was right in reversing the judgment and decree of the Trial Court and in granting decree to the respondents by holding that they have prescribed the title by adverse possession?" 6. In this manner this second appeal has been filed. This Court on 16-3-1994 admitted the second appeal on the following substantial question of law: "Whether the First Appellate Court was right in reversing the judgment and decree of the Trial Court and in granting decree to the respondents by holding that they have prescribed the title by adverse possession?" 6. The contention of Shri Ashish Shroti, learned counsel for the appellants-plaintiffs is that since no evidence has been led by the plaintiffs in order to prove their plea of adverse possession, therefore, the learned First Appellate Court erred in substantial error of law in decreeing the suit of the plaintiffs. The contention of the learned counsel is that specific pleadings of the plaintiffs in their plaint is that they have acquired the Bhumiswami right by way of adverse possession and if that would be the position they cannot shift over at the time of adducing the evidence that they have derived and acquired Bhumiswami right by way of partition. 7. Per contra, Shri A. K. Jain, learned counsel for the respondents argued in support of the impugned judgment. 8. Having heard the learned counsel appearing for the parties, I am of the view that this appeal deserves to be allowed. Regarding substantial question of law 9. On going through the plaint averments particularly paragraph 2, this Court finds that the specific plea of plaintiffs is that they have acquired right, title and interest in the suit property by way of adverse possession and they are in continuous possession of the suit property since 1971 as Bhumiswami in the knowledge of the defendants. Nowhere in the plaint the story of so-called partition has been set up and there is no whisper in this regard in the entire plaint. The defendants by filing written statement denied the plaint averments and also denied the pleadings of the plaintiffs in respect to adverse possession. Eventually the trial Court specifically framed issue No. 2 whether plaintiffs have acquired Bhumiswami right by way of adverse possession. As there is no pleadings in respect to the title that plaintiffs have derived title in the suit property on account of partition no issue in that regard was framed. 10. Eventually the trial Court specifically framed issue No. 2 whether plaintiffs have acquired Bhumiswami right by way of adverse possession. As there is no pleadings in respect to the title that plaintiffs have derived title in the suit property on account of partition no issue in that regard was framed. 10. Original plaintiff is Bhogiram who died during the pendency of the suit, as a result of which Malkhan Singh, Badibahu and Smt. Ramkali who are his legal representatives were brought on record. Since original plaintiff Bhogiram died before entering into the witness box, his son Malkhan Singh who was substituted as plaintiff No. 1 was examined. In his testimony nowhere plaintiff Malkhan Singh has stated that original plaintiff Bhogiram or even he acquired right, title and interest in the suit property on the basis of adverse possession. As a matter of fact the evidence of plaintiffs in order to prove the plea of adverse possession is totally silent. An altogether a new case has been putforth and has been set up in the evidence of Malkhan Singh that on account of partition, the suit property fell in the share of his father (original plaintiff Bhogiram) and therefore plaintiffs have become the Bhumiswami. Thus, the plea of adverse possession which was set up in the plaint and was specifically pleaded and in respect of which issue No. 2 was framed, had at all not been proved by the plaintiffs and they have set up an altogether different case in the evidence that by way of partition the suit property fell in the share of original plaintiff Bhogiram which has not at all been pleaded in the plaint. The Supreme Court in the case of Messrs. Trojan and Co. vs. R. M. N. N. Nagappa Chettiar, AIR 1953 SC 235 in para-22 has specifically held that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint the Court is not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative ease. Thus, the case of deriving title in the suit property on account of partition is totally lacking from the pleadings and the decision cannot be passed outside the pleadings. Thus, the case of deriving title in the suit property on account of partition is totally lacking from the pleadings and the decision cannot be passed outside the pleadings. The pleadings in the plaint of plaintiffs is acquiring Bhumiswami right by adverse possession and to prove this pleading no evidence has been led by the plaintiff. 11. The decision of Trojan and Co. (supra) has been further placed reliance by the Supreme Court in Kashi Nath vs. Jaganath, (2003) 8 SCC 740 . In para 17 the Apex Court has held thus :- "17. From the judgments of the Trial Court, First Appellate Court and the High Court it is clear that there was no consistency so far as the claim regarding the adoption is concerned, particularly as to who and at what point of time it was made. The High Court has taken great pains to extract the relevant variations to indicate as to how it cut at the very root of plaintiffs claim. As noted by the Privy Council in Siddiqui Mohammad Shah vs. Saran and ors., AIR 1930 PC 57 and M/s Trojan and Co. vs. R. M. N. N. Nagappa Chettiar, AIR 1953 SC 235 when the evidence is not inline with the pleadings and is at variance with it and as in this case, in virtual self contradiction, adverse inference has to be drawn and the evidence cannot be looked into or relied upon. Additionally, as rightly, submitted the conclusion whether there was adoption is essentially one of fact merely depending upon pure appreciation of evidence on record. This position has been stated in several decisions of this Court; e.g., Rajendra Kumar vs. Kalyan (dead) by Lrs., 2000(8) SCC 99 and Raushan Devi vs. Ramji Sah and ors., 2002(10) SCC 205. Consequently, no exception could be taken to the well-merited findings concurrently recorded by the courts below, with which the High Court also rightly declined to interfere on the facts and circumstances of this case." 12. It is well settled that the decision of a case cannot be based on grounds outside the plea of parties, and that the case which is pleaded that has to be found and appellate court cannot make out a new case which is not pleaded. (See Siddu Venkappa Devadiga vs. Smt. Rangu S. Devadiga and others, AIR 1977 SC 890 para 8). 13. (See Siddu Venkappa Devadiga vs. Smt. Rangu S. Devadiga and others, AIR 1977 SC 890 para 8). 13. Learned First Appellate Court has decreed the suit of the plaintiffs holding that they have acquired adverse possession on the suit property which is not based on any evidence because in the evidence altogether new plea that plaintiffs have derived the title on the suit property by way of partition has been set up, which is altogether lacking in the pleadings. 14. The substantial question of law is thus answered that the learned First Appellate Court was not right in reversing the judgment and decree of the trial Court and in granting decree to the respondents by holding that they have prescribed the title by adverse possession and the finding is based on no evidence. 15. Resultantly, the appeal succeeds and is hereby allowed. The judgment and decree passed by the First Appellate Court is set aside and that of trial Court dismissing the suit of the plaintiffs is hereby restored. Counsel fee Rs. 2000/- if pre certified. Appeal allowed.