JUDGMENT 1. The plaintiff has taken the shelter of this Court by filing his second appeal under section 100 CPC against the judgment of reversal passed by learned First Appellate Court since the suit which was decreed by learned Trial Court has been reversed by the said Court. 2. The facts necessary for disposal of this second appeal lie in narrow compass. A suit was filed by plaintiff for restoration of possession on the basis of title as well as for cancellation of sale deed executed by defendant No. 1 Kaluram in favour of defendants No. 2 to 4 and further it be declared that the order passed by the Revenue Court in case No. 7A/46-88-89 decided on 7.9.1989 is not binding on plaintiffs. 3. According to the plaintiff, the suit property is agricultural land, the description whereof has been mentioned in the plaint. The suit property was being possessed by him till 1988-89. However, in the year 1989 the plaintiff gave the suit land to defendant No. 1 who is his real brother to cultivate it and it was agreed between the parties that whenever the plaintiff will ask to deliver the possession, the defendant No. 1 Kaluram will deliver the possession to him. Since the plaintiff and defendant No. 1 are real brothers, no agreement was made in writing. It is the further case of plaintiff that defendant No. 1 became dishonest as a result of which he filed an application before Nayab Tehsildar on 31.12.1988 under section 190/110 of the M.P. Land Revenue Code, 1959 (in short the ‘Code’) stating himself to be the occupancy tenant of plaintiff and prayed to mutate the land in his favour, although, he (defendant No. 1) was possessing the suit property with the permission of plaintiff and he cultivated the suit land only for one year. Earlier plaintiff appeared in the proceedings before the Nayab Tehsildar on some dates but on being told by Nayab Tahsildar that the proceedings have been closed, by signing the order-sheet the plaintiff went away but defendant No. 1 by playing fraud obtained an ex parte order in his favour which assailed by the plaintiff by filing an appeal before the Sub Divisional Officer as soon as he came to know of passing of the order passed by Nayab Tahsildar. The Sub Divisional Officer on 4.09.1992 dismissed the appeal being time barred, hence present suit has been filed for restoration of possession on the basis of title. 4. The plaintiff has also pleaded that after obtaining ex parte order from Nayab Tehsildar and getting his name mutated in the revenue record, in order to take undue advantage and by jeopardizing the right of plaintiff, he (defendant No. 1) sold the suit property to defendants No. 2 to 4 which was not in the knowledge of the plaintiff. Indeed, plaintiff came to know about the factum of alienation of the suit property only on 29.3.1993 when he obtained the certified copy of the revenue record. Hence by arrying the purchasers also as defendants No. 2 to 4 he has filed the present suit and also prayed a relief of declaration that the sale deed dated 23.10.1989 is not binding upon the plaintiff. The other reliefs which I have mentioned herein above have also been sought by the plaintiff. 5. The defendants filed a joint written statement and denied the plaint averments. According to them, a valid order was passed by Nayab Tehsildar in favour of defendant No. 1 holding him that he has become occupancy tenant and thereafter he had become Bhumiswami by operation of law and validly the suit property has been sold by defendant No. 1 to defendants No. 2 to 4 and it has been prayed that the suit be dismissed. A plea of limitation has also been taken in the written statement that suit of plaintiff is time barred. 6. The learned trial Court framed necessary issues and after recording evidence of the parties decreed the same holding the suit to be within time. The defendants filed first appeal which has been allowed by the impugned judgment and decree and the suit of plaintiff has been dismissed. 7.In this manner this second appeal has been filed by the plaintiff Baboolal who had died during the pendency of this appeal and the present appellants are his LRs. 8. This Court on 15.07.1998 has admitted the second appeal on the following substantial questions of law :- 1. 7.In this manner this second appeal has been filed by the plaintiff Baboolal who had died during the pendency of this appeal and the present appellants are his LRs. 8. This Court on 15.07.1998 has admitted the second appeal on the following substantial questions of law :- 1. “Whether the appellate Court below erred in dismissing the suit of the appellant-plaintiff even when the Court held that respondent No. 1 was not sub-tenant and did not acquire right of occupancy tenant of Bhumiswami in the land?” 2.”Whether the finding of the appellate Court below that the respondents No. 2 to 4 are bona fide purchasers is totally irrelevant and contrary to the pleadings of the parties?” 9. By advancing his argument on substantial question of law No. 1, it has been contended by Shri Athawale, learned counsel for the appellant that both the Courts below have concurrently found that defendant No. 1 did not become the occupancy tenant since the land in question was not given on lease and because it was not on lease, therefore, the question of holding the land on the basis of unathorized lease would not arise and if that would be the position, certainly the occupancy right would not confer in defendant No. 1 and eventually he would not become the Bhumiswami of the suit property. It has been further put forth by learned counsel for the appellant that what was the arrangement between the plaintiff and the defendants when the property in question was delivered to the defendant No. 1 was best in the knowledge of defendant No. 1 because he has come forward with a case that the land in question was given to him on lease which was in contravention to section 168 (4) of the Code and because the defendant Kaluram who was the best person to throw sufficient light on this point, did not dare to appear in the witness box therefore adverse inference should be drawn against him. 10. By addressing substantial question of law No. 2, it has been put forth by learned counsel for the appellant that if it is held that defendant No. 1 Kaluram did not acquire occupancy tenancy right by virtue of unauthorized lease and eventually he became the Bhumiswami, the other defendant who are stepping into the shoes of defendant No. 1 Kaluram being purchasers, would be out of Court. Learned counsel by inviting my attention of para 24 of the impugned judgment submitted that altogether a new case has been built up by the learned First Appellate Court holding that defendant No. 1 sold his share to defendant No. 2 to 4 which was nobody’s case and therefore it was not in the province of learned First Appellate Court to make out a new case which was neither pleaded nor proved by any of the parties. 11. Further it has been convassed by learned counsel for the appellant that because the present suit is not for specific performance of contract therefore the finding of learned First Appellate Court holding that defendants 2 to 4 are bond fide purchasers, this dictim would not be applicable in the present case. On these premised submissions, it has been put forth by learned counsel that this appeal be allowed and by setting aside the impugned judgment and decree passed by the learned First Appellate Court, the judgment and decree passed by the learned Trial Court be restored. 12. Combating the aforesaid submission put forth by learned counsel for the appellant, Shri A.S. Garg, learned senior counsel assisted by Shri Aditya Garg argued in support of the impugned judgment. Learned counsel has invited my attention to para 22 of the impugned judgment and submitted that having failed to seek relief of declaration of Bhumiswami right, the suit of plaintiff is not maintainable and was incomplete and, therefore, the learned First Appellate Court did not err in dismissing the suit. By putting a deep dent on the submission put forth by learned counsel for the appellant, it has been submitted by Shri Garg, learned senior counsel for the respondent that because defendant No. 1 Kaluram became occupancy tenant since the land in question was given to him by the plaintiff on lease which was in contravention to section 168 (4) of the Code therefore, firstly he became occupancy tenant and thereafter by operation of law and he became Bhumiswami and therefore the suit of plaintiff should be dismissed. Learned senior counsel further submitted that the findings of learned First Appellate Court in that regard that defendant no. 1 Kaluram did not become the occupancy tenant has been challenged by him by filing cross objections before this Court. Learned senior counsel further submitted that the findings of learned First Appellate Court in that regard that defendant no. 1 Kaluram did not become the occupancy tenant has been challenged by him by filing cross objections before this Court. Hence, it has been put forth by learned senior counsel for the respondents that this appeal sans substance and the same be dismissed. 13. Having heard learned counsel for parties, I am of the view that this appeal deserves to be allowed. Regarding Substantial Question of Law No. 1 14. On bare perusal of the judgment passed by the learned Trial Court, this Court finds that while deciding the issues which were framed it was categorically held that defendant No. 1 Kaluram did not acquire occupancy tenancy right on the suit property. The finding of learned trial Court has been affirmed by learned First Appellate Court in para 16 of the impugned judgment and it has been categorically held by that Court also that if the occupancy tenancy right was accrued in defendnat No. 1 Kaluram, he should have appeared in the witness box but he has failed to examine himself and therefore it cannot be said that defendant No. 1 became occupancy tanent on account of lease given by the plaintiff to him which was in contravention to section 168 (4) of the Code. This finding is based on correct appreciation of oral and documentary evidence vis-a-vis to the pleadings and there is no perversity in it. Being a pure finding of fact, this point cannot be assailed in this second appeal although this finding of learned First Appellate Court has been challenged by the respondents by filing cross objections under Order 41 Rule 22 CPC. 15. Being a pure finding of fact, this point cannot be assailed in this second appeal although this finding of learned First Appellate Court has been challenged by the respondents by filing cross objections under Order 41 Rule 22 CPC. 15. According to me, in order to rebut the testimony of plaintiff that he did not give the land to defendants on lease it was for the defendant No. 1 Kaluram to appear in the witness box to dismantle the evidence and case of plaintiff but having not appeared in the witness box, it is fatal to him because whether the land in question was given to him on lease which was in contravention to section 168 (4) of the Code and he was possessing the suit property on the basis of the unauthorized lease given to him and eventually he became the occupancy tenant and thereafter by operation of law he became Bhumiswami, was in the best knowledge of defendant No. 1 Kaluram. Since he abstained himself from the witness box, an adverse inference should be drawn against him. The Division Bench of this Court Kasturchand v. Kapurchand 1975 JLJ 333 has held that a party who was the best witness to show and throw light on the point involved in the case, if fails to appear as a witness, an adverse inference should be drawn against him. While deciding this principle of law, the Division Bench placed reliance on the decision of Privy Council Sardar Gurbaksh Singh v. Gurdial Singh and another. AIR 1927 Privy Council 230 and Martand Pandharinarth Chaudhari v. Radhabai Krishnarao Deshmukh, AIR 1931 Bombay 97. According to me, the decision of Division Bench Kasturchand (supra) as well as decision of Sardar Gurbaksha Singh (supra) are squarely applicable in the present case because it was in the best knowledge of the defendant No. 1 Kaluram that the property in dispute was given to him on the basis of lease, it was his bounden duty to give the evidence on his own behalf and to submit for cross examination. Therefore, the learned two Courts below have rightly held that it is not proved that the suit property was given by plaintiff to his brother Kaluram (defendant No. 1) on lease which was unauthorized and therefore defendant Kaluram became occpancy tenant and thereafter Bhumiswami. Therefore, the learned two Courts below have rightly held that it is not proved that the suit property was given by plaintiff to his brother Kaluram (defendant No. 1) on lease which was unauthorized and therefore defendant Kaluram became occpancy tenant and thereafter Bhumiswami. This finding is a pure finding of fact which cannot be interfered in this second appeal. 16. I do not find any merit in the contention raised by Shri Garg, learned senior counsel for the respondents that looking to the findings arrived at by learned First Appellate Court in para 22 that suit of plaintiff was not maintainable because he did not seek declaration of Bhumiswami right, for the simple reason that the present is the suit of plaintiff inter alia for possession on the basis of title and therefore it was not necessary for him to seek declaration of Bhumiswami right. At this juncture again my attention has been drawn to section 169 of the Code by learned counsel for the respondents which is in respect of unauthorized lease. However, first of all, this is to be proved whether there was any privity of contract between the plaintiff and defendants in that regard because the plaintiff has specifically pleaded in his plaint that the land in question was not given to him on lease, the ball has gone in the Court of defendant No. 1 to prove this fact that the property was given to him on lease and because the lease was in contravention to section 168 (4) of the Code, therefore, it was an authorized lease and by virute of section 169 of the Code he became occupancy tenant and thereafter he became Bhumiswami. Even if section 169 is taken into account, it will not help defendant No. 1 as he did not appear in the witness box and he was the best witness to throw sufficient light on this point, therefore, this point has been rightly put to rest by learned two Courts below. 17. The substantial question of law No. 1 is thus answered that having arrived at a finding by learned First Appellate Court that respondent No. 1 was not sub-tenant and did not acquire right of occupancy tenant or Bhumiswami in the land, the learned First Appellate Court erred in substantial error of law in dismissing the suit of plaintiff. Regarding Substantial Question of Law No. 2 18. Regarding Substantial Question of Law No. 2 18. On going through the findings of learned First Appellate Court in para 24, this Court finds that it was held by the learned First Appellate Court that defendant No. 1 being the real brother of plaintiff therefore if he has sold his share to defendants No. 2 to 4 a valid title has been conveyed to these defendants. I am surprised by such finding for the simple reason that it was nobody’s case that defendant No. 1 sold his share in the joint property to defendants No. 2 to 4 and therefore, they acquired a valid title. It is well settled in law that Courts cannot go beyond pleadings of the parties and cannot make out a new case and cannot be allowed to bring out a case which was not pleaded by a party. In this context, I may profitably place reliance on the two decisions of the Supreme Court, they are C. Mackertich v. Steuart & Co. Ltd. AIR 1970 SC 839 and Siddu Venkappa Devadiga v. Smt. Rangu S. Devadiga and others AIR 1977 SC 890 . 19. Apart from what I have held herein above, becasue the present suit is not for a specific performance of contract therefore whether the defendants no. 2 to 4 were bona fide purchasers or not is totally insignificant. 20. The substantial question of law no. 2 is thus answered that defendants no. 2 to 4 did not acquire any right by virtue of sale deed dated 23.10.1989 executed by defendant No. 1 in their favour and there was no vaid conveyance in their favour. 21. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment passed by the learned First Appellate Court is hereby set aside and the judgment and decree passed by the learned trial Court is hereby restored. The cross objections filed by respondents are hereby dismissed. Cost of this appeal shall be born by the respondents 1 to 5. Counsel fee of Rs. 3,000/- if pre-certified.