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Madhya Pradesh High Court · body

2009 DIGILAW 850 (MP)

KANAKLATA v. SUBHADRA

2009-07-23

U.C.MAHESHWARI

body2009
Judgment ( 1. ) THE appellants/defendants, being aggrieved by the judgment and decree dated 21. 4. 07 passed by the District Judge Betul in Civil Appeal no. 1-A/07 whereby affirming the judgment and decree dated 31. 3. 06 passed by Civil Judge Class-I Betul in Civil Original Suit No. 48-A/05, decreeing the suit of the respondents No. 1 to 5 for declaration and perpetual injunction with respect of the agricultural land described in the plaint, granted an additional relief of possession of the disputed land beyond the pleadings in favour of the respondents under Section 151 of the CPC, have filed this appeal. ( 2. ) THE facts giving rise to this appeal in short are that respondents No. 1 to 5 herein filed the suit for declaration and perpetual injunction against the appellants with respect of the land bearing Survey No. 2 area 2. 023 hectare, situated in village Durgapur Chopna, Tehsil Shahpur District Betual. As per averments of the plaint the respondents/plaintiffs being natives of such village are residing there while the appellants/defendants are residing illegally in such village. Long back before forty years the Rehabilitation department had allotted the disputed land to one Manoranjan Sarkar, the father-in-law of respondent No. 1 Subhadra, whose name was also recorded as Bhoomi Swami in the records of rights and since then he was cultivating the same land upto his death on 4. 3. 92. Thereafter it was mutated in the name of the respondents. As per further averments, the appellants and their predecessors were working as laborers of the respondents on such land, but in the year 2003, they started claiming themselves to be the owner of such land, on which, some dispute took place between them. Subsequent to it, in the year 2004, the appellants, contrary to the rights of respondent No. 1, forcefully tried to cultivate the same. It is also alleged that the appellant being residents of West Bengal, are not citizens of India that is why no land has been alloted to them either for rehabilitation or for agricultural purpose. But by taking advantage of the simplicity of the respondents, the appellants want to keep their possession forcefully over such land. In such premises, the aforesaid suit was filed by the respondents. ( 3. But by taking advantage of the simplicity of the respondents, the appellants want to keep their possession forcefully over such land. In such premises, the aforesaid suit was filed by the respondents. ( 3. ) IN the written statement of the appellants, by denying the averments of the plaint, it is stated that treating them to be the displaced persons, they have been rehabilitated by the Union of India vide order dated 6. 2. 81 on the disputed land of such village. In such premises, the averments of the plaint challenging their citizenship, are denied. In addition, it was stated that the proceeding initiated at the instance of the respondents for their removal has been rejected by the Rehabilitation Department. It is also stated that the disputed land was allotted to the appellants by the aforesaid rehabilitation Department of the Central Government. With these averment, the prayer for dismissal of the suit is made. ( 4. ) RESPONDENT No. 6 State of Madhya Pradesh was proceeded ex-parte in the trial court while the Rehabilitation Department (defendant No. 5) did not file any written statement, on which, its right to file the written statement was closed on dated 22. 12. 05. ( 5. ) AFTER casting the issues and recording the evidence, on appreciation of the same, the suit of the respondents has been decreed by the trial court declaring them to be the Bhumi Swami and title holder of the disputed land and in pursuance of it by issuing the perpetual injunction, appellants were restrained to interfere in their possession with respect of the disputed land. It is noted that no relief with respect of possession was granted in favour of the respondents by the trial court. Such judgment and decree was challenged by the appellants under Section 96 of the CPC before the first appellate court. On consideration, by affirming the decree of the trial court, the appeal was dismissed but simultaneously by invoking the provision of section 151 of the CPC, an additional relief for possession, is also granted in favour of the respondents, on which, the appellants have come forward to this court with this appeal. ( 6. ) THIS court admitted the present appeal vide order dated 16. 7. ( 6. ) THIS court admitted the present appeal vide order dated 16. 7. 2008 only on the following substantial question of law :- "whether the appellate Court erred in granting decree for possession in favour of plaintiffs/respondents while such prayer was not made by the plaintiffs and the plaintiffs had not amended the plaint seeking relief of possession from the appellants ?" ( 7. ) SHRI P. S. Das, learned counsel of the appellant, after taking me through the pleadings of the plaint and the other records of the case said that it is apparent from para-21 of the plaint that the suit of the respondent no. 1 was filed only for declaration and perpetual injunction and not for the relief of possession with respect of the disputed land and in such premises, the suit with respect of possession was neither considered nor decided by the trial court. Even in the first appeal, the prayer clause of the plaint for the relief of possession is neither amended nor any application in this regard was filed by the respondents. In the lack of such prayer in the plaint, the appellate court did not have any jurisdiction to grant such relief in favour of the respondents beyond the pleadings. In any case, in the absence of any cross-objection in the appeal of the appellants, no such prayer could be considered by the appellate court. He also argued that decree for possession could not be passed contrary to the pleadings of the plaint by invoking the provision under Section 151 of the CPC. According to his submission, such section could not be invoked for granting any relief if the substantive provision for granting relief is available under the statute. He also placed his reliance on some reported decisions in this regard. In such premises, he prayed to answer the aforesaid question in favour of the appellants. ( 8. ) HAVING heard the counsel, I have carefully gone through the record of the trial court and also perused the impugned judgment. Before proceeding further, as ready reference, I would like to mention here para-21 of the plaint the prayer clause. The same reads as under : -. . . (Other Language Omited ). . . ( 9. ( 8. ) HAVING heard the counsel, I have carefully gone through the record of the trial court and also perused the impugned judgment. Before proceeding further, as ready reference, I would like to mention here para-21 of the plaint the prayer clause. The same reads as under : -. . . (Other Language Omited ). . . ( 9. ) ON perusing the aforesaid prayer, it is apparent that the impugned suit was filed only for declaration and perpetual injunction and not for the relief of possession with respect of the disputed land. I have not found any application of amendment in the record of the trial court showing that at any point of time, the respondents made effort to amend and insert the relief of possession. As such, the relief of possession was never claimed by the respondents either before the trial court or in the subordinate appellate court. Even in pendency of the first appeal of the trial court no such application tamend the prayer clause of the plaint for possession was filed by the respondents. Accordingly, the prayer for possession of the disputed land was not under consideration before the appellate court. ( 10. ) IT appears from the impugned judgment that without any pleading or the prayer regarding possession in the plaint of the respondents, only on some whims, while affirming the decree of the trial court and dismissing the appeal, by invoking the provision of section 151 of CPC, the suit of the respondents was additionally decreed for possession and mesne profits as mentioned in sub para 2 and 3 of para-19 of the impugned judgment. It is apparent on the record that such decree passed in favour of the respondents by the appellate court is beyond the pleadings. ( 11. ) IT is settled proposition of the law that beyond the pleadings of the suit, no prayer can be accepted by the court as laid down by the Apex Court in the matter of Union of India Vs. E. I. D Parry (India) Ltd.- (2000) 2 SCC 223 in which it was held as under :- "4. The suit was filed. . . . . . . . . . . . . In the absence of the pleading to that effect, the trial court did not frame any issue on that question. E. I. D Parry (India) Ltd.- (2000) 2 SCC 223 in which it was held as under :- "4. The suit was filed. . . . . . . . . . . . . In the absence of the pleading to that effect, the trial court did not frame any issue on that question. The High Court of its own proceeded to consider the validity of the rule and ultimately held that it was not in consonance with the relevant provisions of the Railways Act, 1890 and consequently held that it was ultra vires. This view is contrary to the settled law that a question, which did not form part of the pleadings or in respect of which the parties were not at variance and which was not the subject matter of any issue, could not be decided by the court. The scope of the suit was limited. The pleadings comprising of the averments set out in the plaint and the defence put up by the present appellant in their written statement did not relate to the validity of the rule struck down by the High Court. The High court, therefore, travelled beyond the pleadings in declaring the rule to be ultra vires. The judgment of the High Court, therefore, on this question cannot be sustained. " The aforesaid question is also answered by this court in the matter of municipal Corporation, Indore and another Vs. RETD. Col. Anil KAK and another- 2003 (3) MPLJ 379 . Thus, it is revealed from the aforesaid discussion that without any prayer of pleadings in the plaint, the decree for possession of the disputed land has been passed by the appellate court in favour of the respondents No. 1 to 5. The same is not sustainable. ( 12. ) I am of the considered view that where the sufficient provisions for initiating the proceeding for possession or for amendment in the suit in this regard, are available under the substantive law then by invoking section 151 of the CPC, no such relief can be granted by the court in favour of either of the parties. ( 12. ) I am of the considered view that where the sufficient provisions for initiating the proceeding for possession or for amendment in the suit in this regard, are available under the substantive law then by invoking section 151 of the CPC, no such relief can be granted by the court in favour of either of the parties. Granting the decree for possession the substantive law is well in existence, hence in the absence of the pleadings or the prayer in the plaint for possession of the disputed land, the suit of the respondents could not be decreed for such relief by invoking the provision under section 151 of the CPC by the appellate court. ( 13. ) MY aforesaid view is fully fortified by the decision of the Apex Court in the matter of National Institute of Mental Health and Neuro Sciences, appellant v. C. Parameshwara, Respondent. AIR 2005 SC- 242 in which it was held as under :- "12. In the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal reported in ( AIR 1962 sc 527 ), it has been held that inherent jurisdiction of the Court to make orders ex debito justitiae is undoubtedly affirmed by section 151, CPC, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive. In the present case, as stated above, section 10, CPC has no application and consequently, it was not open to the high Court to bye-pass section 10, CPC by invoking section 151, CPC. " ( 14. ) IN view of the aforesaid, passing the decree of possession by the appellate court beyond the pleadings, is apparently perverse, and the same is not sustainable, hence by answering the substantial question of law accordingly in favour of the appellants, by allowing this appeal, the judgment and decree passed by the appellate court with respect of possession and mesne profits in sub para 2 and 3 of para 19 of the impugned judgment are hereby set aside, while the remaining part of the such judgment and decree, affirming the judgment and decree of the trial court, are hereby affirmed. The appeal is allowed to the extent indicated above. The appeal is allowed to the extent indicated above. In the facts and circumstances of the case, there shall be no order as to the cost. Decree be drawn-up accordingly.