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2013 DIGILAW 1147 (PAT)

Lal Bahadur Prasad v. Surendra Singh

2013-09-20

MUNGESHWAR SAHOO

body2013
MUNGESHWAR SAHOO, J.:–This Second Appeal had been filed by the original defendant, Smt. Lalti Devi against the judgment and decree dated 15.09.1992 passed by the learned 5th Additional District Judge, Patna in Title Appeal No.161 of 1989 whereby the learned Lower Appellate Court dismissed the appeal and thereby confirmed the judgment and decree of the trial court dated 26.09.1989 passed by the learned Execution Munsif, Patna in Title Suit No.60 of 1987/2 of 1989. 2. The plaintiffs-respondents filed the aforesaid suit for a decree for specific performance of contract dated 01.12.1986. According to the plaintiffs, it was agreed between the parties that the suit property was to be sold by original appellant, Lalti Devi(died during pendency of Second Appeal and substituted) for Rs.20,000 out of which Rs.6,000 was paid as advance and agreement was executed on 01.12.1986. The parties further agreed that the registered deed was to be executed and registered within 01.11.1987. The plaintiffs were always ready and willing to pay the balance consideration amount. 3. The defendants filed contesting written statement mainly contending that the agreement to sale dated 01.12.1986 is forged and fabricated document and the defendants had not executed the same. 4. The trial court after considering the evidences recorded the finding that the agreement is genuine document and was executed by the original defendant, Lalti Devi in favour of the original plaintiff, Chandrabaso Devi. The trial court also recorded the finding that the plaintiff was always ready and willing and was still ready and willing to perform her part of the contract. Accordingly, the plaintiff’s suit was decreed. On appeal, the Lower Appellate Court confirmed the finding of the trial court and dismissed the appeal. 5. On the date of admission of the appeal on 21.06.1993, the following two substantial questions of law were formulated:– (A) Whether the court below was bound to consider the evidence adduced by the parties concerning the fact that the house in question was a joint family property although there is no such pleading taken in the written statement filed by the defendant-appellant? (B) Whether non-consideration of the said evidence would be a ground for setting aside the impugned judgment/decree? 6. (B) Whether non-consideration of the said evidence would be a ground for setting aside the impugned judgment/decree? 6. In support of the aforesaid two substantial questions of law, the learned senior counsel appearing on behalf of the appellants submitted that during the course of trial, the evidences were produced by the defendants to the effect that the suit property is joint family property and four sons of the original defendant had also share in the property. The plaintiffs also in the evidence admitted the fact that the property is joint family property but both the courts below did not consider the evidences produced by the defendants to prove the fact that the property is joint family property on the ground that there is no pleading to that effect in the written statement. According to the learned counsel, since the parties were knowing the fact of the dispute between the parties and they went to trial and adduced evidences, in such circumstances, it was the duty of the courts below to have considered the evidences and should have recorded the finding as to whether the property is joint family property or not because the finding on this question will be crucial and if it is found that the property is joint property then the original defendant, Lalti Devi had no right to enter into agreement to sell the whole property i.e. the residential house i.e. even the share of four sons. In support of his contention, the learned counsel relied upon AIR 1989 Supreme Court 1530 (Kali Prasad Agarwala (Dead by LRs.) and others Vs. M/s. Bharat Coking Coal Ltd. and others), AIR 1966 Supreme Court 735(Bhagwati Prasad Vs. Chandramaul), AIR 1958 Patna 550 (Uma Shankar Chowbey Vs. Mt. Dhaneshwari & Ors.) and AIR 1992 Patna 40(Triloki Vishwakarma alias Triloki Mistri Vs. Zaitun Nisa). 7. On the other hand, the learned senior counsel appearing on behalf of the respondents submitted that the defendants-appellants during the pendency of the title appeal before the Lower Appellate Court filed an application for amendment of the written statement for incorporating the pleading to the effect that the suit property is the joint family property. The said amendment application was rejected by the Appellate Court. Against the said rejection order, the defendants filed Civil Revision No.940 of 1991 which was dismissed by the High Court on 21.08.1991. The said amendment application was rejected by the Appellate Court. Against the said rejection order, the defendants filed Civil Revision No.940 of 1991 which was dismissed by the High Court on 21.08.1991. Now, therefore, the same matter cannot be agitated in this Second Appeal. According to the learned counsel, with respect to the decision relied upon by the learned counsel for the appellants submitted that in those cases, the facts were entirely different, therefore, the same are not applicable in the present case. According to the learned counsel, here, in the present case, the defendants never pleaded that the property is joint family property in the written statement. Now, therefore, this issue was not before the trial court. The plaintiffs did not adduce any evidence with respect to this issue and in such circumstances, any evidence produced by the defendants in support of this fact cannot be looked into and rightly the courts below have not looked into the said evidence. The learned counsel further submitted that it is not the case of the defendants that the suit property is the only house property rather the D.W.1 who is nobody else than the son of the defendant has admitted in his evidence that there are other residential houses and buildings wherein they are residing and are running shops and have also inducted tenants. In such circumstances, even if it is held that the property is joint family property then also there is no bar to sell the joint family property. The defendants have not agreed to sell a portion of the property, therefore, there is no question of joint possession with respect to a portion of the house arises. In support of his contention, the learned counsel relied upon the decision of the Hon’ble Supreme Court reported in 2013(1) PLJR 48 paragraph 67 clause vii and submitted that no amount of evidence can be looked into if there is no pleading to that effect. 8. From perusal of the judgment of both the courts below, it appears that both the courts below have recorded clear finding that the agreement to sale dated 01.12.1986 is a genuine document. So far this finding is concerned, it is pure finding of fact. The substantial question of law relates to the appreciation of evidence based on no pleading. 9. Now let us consider the decision relied upon by the learned counsel for the appellants. So far this finding is concerned, it is pure finding of fact. The substantial question of law relates to the appreciation of evidence based on no pleading. 9. Now let us consider the decision relied upon by the learned counsel for the appellants. In the case of Kali Prasad Agarwala (supra), the Hon’ble Supreme Court at paragraph 18 has held that the parties went to trial knowing fully well what they were require to prove. They have adduced evidences of their choice in support of the respective claims. That evidence has been considered by both the courts below. They cannot now turn around and say that the evidence should not be looked into. In view of the aforesaid finding, it appears that in that case, both the parties went to trial knowing fully well what they were require to prove and they also adduced evidences in support of the said pleadings. Here, the position is otherwise. It is admitted that there is no pleading to the effect that the property is joint family property and that four sons of original defendant have also share in the property. 10. The decision Bhagwati Prasad (supra) is concerned, in that case, the Hon’ble Supreme Court held that if a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleading would not necessarily disentitled a party from relying upon it if it is satisfactorily proved by evidence. From the above facts, it is clear that in that case also, the plea which was not specifically made was implicitly involved in the suit for decision and the parties went to trial knowing that they have to prove this fact by adducing evidence. 11. So far the other two decisions i.e. AIR 1958 Patna 550 and AIR 1992 Patna 40 are concerned, are not applicable in the facts of the present case. In AIR 1958 Patna 550, the provision as contained in Section 44 of the T.P.Act has been considered whereas in AIR 1992 Patna 40, it appears that in that case, partition had been effected and the plaintiff’s share in the property had been held to be 1/5th share. 12. In AIR 1958 Patna 550, the provision as contained in Section 44 of the T.P.Act has been considered whereas in AIR 1992 Patna 40, it appears that in that case, partition had been effected and the plaintiff’s share in the property had been held to be 1/5th share. 12. As stated above, in the present case, there is total absent of the pleading of the defendants in the written statement regarding the joint family property or that the sons have also share in the property. It may be mentioned here that none of the sons ever prayed for being added as party in the suit on the ground that their property or share is involved and the plaintiff is trying to obtain a decree with respect to their share also. It is further evident from the record that one of the sons of the defendants has signed the sale deed as witness and one of the sons has been examined as D.W.1 in the present case. In the evidence, they never claimed to have a share in the suit property. 13. In the case of Bachhaj Nahar Vs. Nilima Mandal, (2008) 17 Supreme Court Cases 491, the Hon’ble Supreme Court has held that no amount of evidence on a plea that is not put forward in the pleadings can be looked into to grant any relief. Only in exceptional cases, can this general rule be deviated from if the court is fully satisfied that the pleadings and issues generally covered the case subsequently put forward and that the parties being conscious of the issue had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception of the general rule does not arise. As stated above, here, this was never the issue between the parties in the present case that whether the property is joint family property or was the property of the original defendant or whether she had right to execute the deed of agreement. 14. Recently, in the case of Union of India Vs. As stated above, here, this was never the issue between the parties in the present case that whether the property is joint family property or was the property of the original defendant or whether she had right to execute the deed of agreement. 14. Recently, in the case of Union of India Vs. Ibrahim Uddin & Anr., 2013(1) PLJR 48 Supreme Court, the Hon’ble Supreme Court at paragraph 67 clause vii has held that the court cannot travel beyond the pleading as no party can lead the evidence on an issue/point not raised in the pleading and in case, such evidence has been adduced or a finding of fact has been recorded by the court, it is just to be ignored. The Hon’ble Supreme Court has made a distinction regarding non-framing of issue and the parties adduced evidences fully knowing the issue and controversy between them and led evidence then in such circumstances, the court can look into evidence and merely for non-framing of issue, the findings will not be vitiated. 15. In view of the above settled proposition of law laid down by the Hon’ble Supreme Court, it is now settled principles of law that the court has to find out the case pleaded by the parties. The court cannot make a third case on the basis of the evidence produced by the defendants in support of a fact which was never put forth in the pleading. Here, in the present case, the evidences produced by the defendants-appellants are with respect to the fact which was neither pleaded nor it was an issue nor the plaintiffs were knowing this fact or issue. Therefore, the courts below have rightly held that the evidences produced by the defendants cannot be looked into. In my opinion, therefore, because of non-consideration of the said evidences for which there was no pleading, the judgment of the courts below cannot be said to be vitiated. Accordingly, both the substantial questions of law formulated at the time of admission are answered in favour of the plaintiffs-respondents and against the defendants-appellants. 16. In the result, this Second Appeal is dismissed. In the facts and circumstances of the case, there shall be no order as to cost.