Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 254 (MP)

PHULA BAI v. KRISHNA

2009-02-20

U.C.MAHESHWARI

body2009
Judgment ( 1. ) THIS Appeal is directed by the appellant/plaintiff being aggrieved by the judgment and decree dated 24. 1. 94 passed by the Ilnd addl. District Judge to District Judge, Sagar in Civil Appeal No. 8-A/91 dismissing her Appeal by maintaining the judgment and decree dated 5. 7. 91 passed by Civil judge Class-I in Civil Original Suit No. 30-A/84 whereby her suit for declaration and injunction, was partly dismissed. ( 2. ) THE Appellant/plaintiff herein filed the suit for declaration and injunction against the respondents declaring hex to be the exclusive owner of disputed wall with a prayer restraining the respondents to interfere her enjoyment of such wall. As per averments of the plaint, the appellant purchased a house with some land including the disputed wall situated at village Chandpur, Tehsil Rehti in consideration of Rs. 975/- from its earlier owner Purushottam vide sale deed dated 27. 6. 61. Since then, he is in possession of such house and the disputed wall. Subsequently, respondents No. 1 and 2 and one Khilona Bai sold their adjoining house with the aforesaid wall, to respondent No. 3 Roopchand vide sale deed dated 6. 1. 82. It is further pleaded that respondent No. 1 and 2 did not have any legal right to sale the aforesaid wall measuring 34 feet in length. Such wall is also shown in the map annexed with the plaint. It is further stated that the sale deed dated 6. 1. 82 executed in favour of respondent No. 3 did not confer any right to respondents and the same is not binding against the right of the appellant. After knowing the aforesaid fact, a notice dated 15. 1. 82 was given by the appellant to respondent No. 3 and, in continuation of it, to protect his interest, the impugned suit was filed by the appellant. ( 3. ) IN the written statement of the respondent No. 3, it is stated that he purchased the aforesaid house along with the disputed wall. The appellant does not have any right or title over such wall. The same was constructed 20 years ago by one kashi Ram Sahu thereafter on such wall, an open courtyard is constructed by him. The appellant did not have any legal right to file the aforesaid suit for the relief as prayed. ( 4. The appellant does not have any right or title over such wall. The same was constructed 20 years ago by one kashi Ram Sahu thereafter on such wall, an open courtyard is constructed by him. The appellant did not have any legal right to file the aforesaid suit for the relief as prayed. ( 4. ) AFTER framing the issues by the trial court, the evidence was recorded. On appreciation of the same, the suit of the appellant was decreed by trial court in part holding the disputed wall to be the common wall of the plaintiff and defendant no. 4 (respondent No. 3 herein) with further declaration that the appellant is the owner of half portion of the width of such wall and taking into consideration that the disputed wall was a common wall, by referring the prayer of perpetual injunction, as prayed, the respondent No. 3 was only restrained from causing any injury to the disputed wall at the side of the appellant. ( 5. ) AGAINST partly dismissal of the suit, the appellant approached the Subordinate appellate court with a prayer to decree his entire suit. On consideration, the appeal was dismissed by holding that even on assuming that the disputed wall is belonging to the appellant, the respondent No. 3 had a right to easement of necessity over such wall as per provision of Section 13 (a) and its illustration (j) of the Easement Act, on which, the appellant has preferred this second appeal. ( 6. ) THE appeal was admitted vide order dated 8. 9. 94 on the following substantial question of law:- "whether the lower appellate Court committed an error in granting relief basing on easement of necessity without basis for such a claim in the pleadings or evidence ?" ( 7. ) SHRI B. P. Sharma, learned counsel for the appellant assailed the impugned judgment on the aforesaid question, saying that no case with respect of easementry right was put forth by the respondents in the courts below. ) SHRI B. P. Sharma, learned counsel for the appellant assailed the impugned judgment on the aforesaid question, saying that no case with respect of easementry right was put forth by the respondents in the courts below. In the lack of, such pleadings in the written statement or, any evidence in that regard, specially when no counter claim or cross appeal was filed by respondent No. 3 then, in the suit or appeal of the appellant, the appellate court did not have any jurisdiction to grant any relief or make any observation on the basis of easementry right in favour of respondent No. 3. In such premises, he said that the appellate court committed error in holding right to easement of necessity in favour of respondent No. 3. In such premises, such approach of the appellate court is not sustainable and prayed to answer the aforesaid question in his favour, by allowing his appeal. ( 8. ) ON the other hand, Ms Nirmala Raikwar, learned counsel for the respondents, responded the aforesaid arguments saying that the findings of the appellate court with respect of the easement is based on appreciation of the evidence led by the parties and also is in conformity with law. It does not require any interference at this stage. She further said that the findings of the appellate court regarding dismissal of the suit being concurrent findings of both the courts on facts, the aforesaid question is not covered under Section 100 (4) of the CPC and in such premises, she prayed for dismissal of this appeal. However, after perusing the written statement, she fairly conceded that neither the pleadings regarding easement of necessity with respect of the disputed wall has been specifically pleaded nor any counter appeal or. cross objection in that regard was preferred by respondent No. 3. ( 9. ) HAVING heard the counsel, after perusing the record along with the judgment of the courts below, I am of the considered view that this appeal deserves to be allowed and the findings of the appellate court holding the right of easement in favour of respondent No. 3 is liable to be set aside. ( 10. ) AFTER holding the disputed wall to be the common wall of the appellant and the respondent NO. ( 10. ) AFTER holding the disputed wall to be the common wall of the appellant and the respondent NO. 3 by the trial court, each of them was declared to be the owner of half of its width of their side, on which, the appellant preferred the appeal with a prayer to decree his entire suit declaring him to be the owner of entire wall and also for perpetual injunction restraining the respondents from any interference in his right of wall. Such findings of the trial court are based on different sale-deeds filed by the parties to prove their respective title and the pleadings. I have not found any pleading with respect of right to easement of necessity, either in the plaint or the written statement. In such premises, it is apparent that it was nobodys case that any question of right of easement was involved in the case tried by the trial court. It is noted that in any of the sale deeds produced by the parties and marked on the record, i have not found the averments showing that either of the party was the exclusive owner of such disputed wall. It appears that considering such sale deeds and, in the light of the available evidence, the trial court concluded the matter by declaring the wall to be common wall of the parties and they have equal right of ownership in it. ( 11. ) ON filing the appeal, the same pleadings of the parties were before the appeal court and neither party has amended their pleadings in pendency of the appeal. In such premises, the appellate court was bound to decide the appeal on the basis of the pleadings and the evidence available in the record. Beyond the pleadings of either of the parties, the appellate court did not have any jurisdiction to consider and decide the matter. It is undisputed fact on record that neither party has pleaded the case of easement or claimed any right on such ground, therefore, in the lack of such claim or prayer, the appellate court could not have decided the case by making some observations on such grounds. It is settled preposition of the law that in the absence of the pleadings even if the evidence is adduced on record then such evidence could not be looked into for giving any relief to either of the parties. It is settled preposition of the law that in the absence of the pleadings even if the evidence is adduced on record then such evidence could not be looked into for giving any relief to either of the parties. Contrary to this principle, the appellate court has committed grave error in granting the relief to the respondent No. 3 on the ground of easementry right. Such question is answered by the Apex Court in the matter of Ravinder Singh Vs. Janmeja Singh and others- 2000 8 SCC 191 in which it was held as under :- 7. "the election petition is. . . . . . . . . . . . . . . It is an established proposition that no evidence can be led on a plea not raised in the pleadings and that no amount of evidence can cure defect in the pleadings. " ( 12. ) IN the aforesaid premises, the approach of the appellate court holding right of easement in favour of respondent No. 3, is apparently contrary to, and also, against the settled proposition of law. The same is not sustainable, therefore, the aforesaid question is answered accordingly holding that the appellate court has committed grave error in granting the relief on the ground of easement of necessity in favour of respondent No. 3. ( 13. ) SO far the other question raised by the respondents counsel that the aforesaid question is not covered by Section 100 (4) of the CPC hence the same could not be treated to be a substantial question of law is concerned, it is suffice to say that the case which was neither placed before the trial court nor appellate court by either of the parties and was also not the case of any of the parties even then if such relief is granted in favour of the respondents, contrary to record and under violation of the existing law then such question could not be treated to be the question of fact. It being purely substantial question of law is covered under section 100 (4) of the CPC. ( 14. ) IN view of the aforesaid answer of the substantial question of law, this appeal is allowed and the observation and the findings given, by the appellate court with respect of the right to easement of necessity in favour of respondent no. It being purely substantial question of law is covered under section 100 (4) of the CPC. ( 14. ) IN view of the aforesaid answer of the substantial question of law, this appeal is allowed and the observation and the findings given, by the appellate court with respect of the right to easement of necessity in favour of respondent no. 3 are hereby set aside, while, in the available circumstances, the other findings of the appellate court regarding dismissal of the Appeal are hereby affirmed. In pursuance of it, the impugned judgment and decree passed by the appellate court is hereby modified till the aforesaid extent while the other findings of it are hereby affirmed. In the facts and circumstances of the case, there shall be no order as to costs. Decree be drawn-up accordingly. ( 15. ) THE appeal is allowed as indicated above. Appeal allowed.