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2012 DIGILAW 677 (MP)

Chandrabhan Singh v. Ganpat Singh

2012-07-05

ALOK ARADHE

body2012
JUDGMENT : This appeal has been preferred by the defendants no. 1 and 2. This court vide order dated 19-09-2005, while admitting the appeal had framed the following substantial questions of law :- "1. Whether the findings of the appellate Court that Bua of Devi Singh married to Mathura is perverse and is based on surmises and conjunctures and the plaintiff without disclosing name of Bua have pleaded her marriage with Mathura which finding cannot be accepted in the absence of proper pleadings and evidence? 2. Whether the plaintiffs who are successor of Mathura Singh are entitled to succeed property of Devi Singh. " 2. The facts leading to filling of this appeal briefly stated are that the plaintiffs filed the suit seeking a relief of declaration and permanent injunction. The claim in the suit was based on the ground that Mathura Singh and Devi Singh had half share each in the suit land admeasuring 5.829 hectares. The plaintiffs claimed the title in respect of half of the share in the suit land being the grand son's of Mathura Singh. In respect of remaining half share, the plaintiffs based their claim on the basis of an oral Will dated 12-11-1984. Alternatively, it was pleaded that since the plaintiffs were in possession of the suit land held by Devi Singh, therefore, by virtue of Section 190 of the M.P. Land Revenue Code, 1959 they have become the owners in respect of the share held by Devi Singh in the suit lands. The plaintiffs sought relief of declaration that they are the owners of the suit lands and order of mutation dated 05-03-1987, in favour of defendant no. 1 and 2 in so far as it pertains to share of the defendants no. 1 and 2 in the lands held by Devi Singh be declared null and void. The defendants no. 1 and 2 filed written statement in which inter alia, it was pleaded that plaintiffs are not related to Devi Singh and order of mutation dated 05-03-1987 has been duly passed in favor of the defendants no. 1 and 2 in respect of the land held by Devi Singh, and that the defendants no. 1 and 2 are in possession of the land held by Devi Singh. 3. The trial Court vide judgment and decree dated 29-06-1996 partly decreed the suit filed by the plaintiffs. 1 and 2 in respect of the land held by Devi Singh, and that the defendants no. 1 and 2 are in possession of the land held by Devi Singh. 3. The trial Court vide judgment and decree dated 29-06-1996 partly decreed the suit filed by the plaintiffs. The trial court, inter alia held that plaintiffs are owners in respect of half share of the suit lands which was held by Mathura Singh being his grand sons. It was further held that the plaintiffs have not been able to prove that half share in the suit land held by Devi Singh was bequeathed to them by an oral Will. It was also held that order of mutation dated 05-03-1987 is null and void as the same has been passed without notice to the plaintiffs. Accordingly, the suit filed by the plaintiffs was partly decreed. 4. Being aggrieved by the aforesaid decree, the plaintiffs filed an appeal. The lower appellate Court inter alia held that the mother of the plaintiff no. 3, was sister of Devi Singh's father and therefore, plaintiff no. 3 is legal representative of Devi Singh. It was further held that Mathura Singh and Devi Singh were related to each other as uncle and nephew. The appellate Court also held that (Exhibit P-2) shows that the names of Mathura Singh and Devi Singh were jointly recorded in the revenue record in respect of the lands in question, which in turn, shows that they are closely related to each other. It was further found by the lower appellate Court that Devi Singh had sold part of the land vide registered sale deed to Mathura Singh and had also sold another part of lands in question to the plaintiffs. It was further found that no notice of mutation proceedings was given to the plaintiffs before passing the order dated 05-03-1987. Accordingly, the claim of the plaintiffs was decreed in entirety. 5. Learned counsel for the appellants submitted that in the plaint, by way of amendment, the plea which was incorporated is vague inasmuch as name of the sister who was married to Devi Singh was not disclosed. It was also submitted that the plaintiffs have not based their claim of title in respect of the share held by Devi Singh in the suit lands on the basis of their being the legal representatives of late Devi Singh. It was also submitted that the plaintiffs have not based their claim of title in respect of the share held by Devi Singh in the suit lands on the basis of their being the legal representatives of late Devi Singh. Learned counsel for the appellants has also invited the attention of this court to paragraphs-13 and 14 of the findings recorded by the trial court and has submitted that the defendants no. 1 and 2 have been found to be in possession of the lands held by Devi Singh. In support of his submissions, learned counsel for the appellants has placed reliance on the decisions of the Supreme Court reported in the cases of Spun Casting & Engg. Co. (P) Ltd. Vs. Dwyendra Lal Sinha (Dead) through LR's and others 2005 (6) SCC 265 , Bachhaj Nahar Vs. Nilima Mandal and another (2008) 17 SCC 491 , Vimal Chand Ghevarchand Jain and Others Vs. Ramakant Eknath Jadoo (2009) 5 SCC 713 , Sameer Kumar Pal and another Vs. Sheikh Akbar and Others (2010) 11 SCC 777 & Chatti Konati Rao and others Vs. Palle Venkata Subba Rao (2010) 14 SCC 316 . 6. On the other hand, learned counsel for the respondents no. 1 to 3 submitted that the amendment which was incorporated in paragraph-1 (a) of the plaint was not denied in the written statement by the defendants no. 1 and 2 and therefore, the same has to be treated as admitted. It was further submitted that lower appellate Court, on the basis of meticulous appreciation of evidence on record, has recorded a finding that the plaintiff no. 3, was the legal representative of late Devi Singh. It was further submitted that the appellants have miserably failed to make out any case for interference in exercise of powers under Section 100 of Civil Procedure Code and no substantial question of law arises for consideration in the appeal. In support of his submissions, learned counsel for the respondents no. 1 to 3 has placed reliance on the decision of the Supreme court in the case of Veerayee Animal Vs. Seeni Ammal (2002) 1 SCC134. 7. I have considered the submissions made on both the sides and have perused the record. I have carefully perused the averments made in the plaint. 1 to 3 has placed reliance on the decision of the Supreme court in the case of Veerayee Animal Vs. Seeni Ammal (2002) 1 SCC134. 7. I have considered the submissions made on both the sides and have perused the record. I have carefully perused the averments made in the plaint. It is pertinent to mention here that the suit was filed on 06-07-1987 in which initially the claim with regard to the share of Devi Singh was based on two grounds, firstly, on the basis of oral Will dated 12-11-1984, and secondly, on the basis of acquisition of title under Section 190 of M.P. Land Revenue Code, 1959. Thereafter, by way of amendment on 09-05-1991, it was pleaded that Daulat Singh's sister was married to Mathura Singh and therefore, Mathura Singh and Devi Singh were related to each other as uncle and nephew. It is pertinent to mention here that in paragraph-1 (a) of the plaint, name of the sister of Daulat Singh has not been disclosed. Besides that, the plaintiffs have not based their claim of title in the suit lands in respect of share of Devi Singh on the ground that they are legal representatives of deceased Devi Singh. From the relief claimed in the plaint, it is apparent that the plaintiffs have claimed title in respect of the share held by Devi Singh on the basis of oral Will. It is trite law that no party should be permitted to travel beyond its pleadings and should bring all necessary and material particulars in support of the case set up by it. The object and purpose of the pleadings is to enable the adversary to know the case of the other party. In order to have a fair trial, it is imperative that party should state the essential material facts, so that other party cannot be taken by surprise. See:- Ram Sarup Gupta (Dead) by LR's Vs. Bishun Narain Inter College and Others (1987) 2 SCC 555 & Bachhaj Nahar Vs. Nilima Mandal and another (2008)(17) SCC 491. 8. From careful scrutiny of the plaint, it is clear that the plaintiffs have not claimed title in respect of the share held by Devi Singh, being the legal representatives of late Devi Singh. Besides that, the pleadings in this regard is vague as is evident from paragraph-1 (a) of the plaint. Nilima Mandal and another (2008)(17) SCC 491. 8. From careful scrutiny of the plaint, it is clear that the plaintiffs have not claimed title in respect of the share held by Devi Singh, being the legal representatives of late Devi Singh. Besides that, the pleadings in this regard is vague as is evident from paragraph-1 (a) of the plaint. It appears to be after-thought as the suit was filed in the year 1987 and thereafter, amendment was made after a period of approximately four years ie, in the year 1991. It is also pertinent to mention that the trial Court has not framed any issue with regard to the acquisition of title by the plaintiffs on the basis of their being the legal representatives of the deceased Devi Singh. The lower appellate Court while decreeing the claim of the plaintiffs has made out a new case and has traveled beyond the pleadings of the parties which is impermissible in law. In the absence of proper pleadings, the evidence, if any adduced, in this regard, cannot be looked into. 9. It is equally well settled in law that even if the defendant does not file the written statement, the court should proceed cautiously and exercise its discretion in a just manner. Even, in the absence of written statement, burden of proof would remain on the plaintiff and his mere assertion in the plaint affidavit, would not be sufficient to discharge the burden. See : (2012) 5 SCC 265 C.N. Ramappa Gowda Vs. C.C Chandregowda ( Dead) by LR's and another. It is also well settled in law that detailed pleadings about the property in respect of which the person is either claiming possession or title must be made. See : Maria Margarida Sequeira Fernandes and Others Vs. Erasmo Jack De Sequeira (Dead) through LR's (2012) 5 SCC 370 . In the absence of pleadings with regard to acquisition of title on the ground of survivorship and taking into account the fact that the plaintiffs have not claimed title in respect of the suit land on the basis of their being the legal representatives of deceased Devi Singh, the lower appellate Court committed an error of law in making out a new case on behalf of the plaintiffs while decreeing the claim of the plaintiffs in entirety. For the aforementioned reasons, the first substantial question of law is answered in affirmative whereas the second substantial question of law is answered in the negative. 10. In the result, the appeal succeeds. The judgment and decree passed by the lower appellate Court is set aside and that of the trial Court is restored. In the facts of the case, the parties shall bear their respective costs.