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2021 DIGILAW 62 (UTT)

Nanak Chand v. Daya Ram

2021-01-15

LOK PAL SINGH

body2021
ORDER Lok Pal Singh, J. - Present second appeal is directed against the judgment and decree dated 30.08.1988 passed by learned III Addl. Civil Judge, Dehradun in Civil Appeal No. 52 of 1979 "Dayaram Vs. Bhagwan Dai", whereby the Appellate Court allowed the appeal and decreed the suit of the plaintiffs/respondents by reversing the judgment and decree of dismissal of suit passed by the trial Court. 2. Factual matrix of the case are that the plaintiff/respondent instituted a SCC suit No. 23 of 1976 in the Court of Judge, SCC with the averments that the plaintiff is the owner-landlord of the property bearing no. 69(old)/125 (new) Karanpur, Dehradun and Bhawani Bhikh, husband of the defendant, was a month to month tenant of the plaintiff at a monthly rent of Rs. 60/-. The provisions of U.P. Act No. 13 of 1972 are applicable in the said property. The plaintiff sent a registered notice to Bhawani Bhik demanding the arrears of rent amounting to Rs. 3060/-. The said notice was return back with the endorsement that the "addressee has passed away". The Bhwani Bhik died on 31.07.1975 leaving behind the defendant as his sole surviving legal heir. Thus, the defendant became tenant of the plaintiff, thereafter, when the tenant did not pay the due rent then the landlord on 22.08.1975, sent a notice to the tenant and demanding arrears and terminating her tenancy. It is alleged that despite services of notice the defendant neither vacated the said premises nor paid the arrears of rent, whereafter the respondent/landlord constrained to institute the suit against the tenant for recovery of rent and ejectment. 3. The defendant filed her written statement and it was emphatically denied that Late Bhawani Bhik was a tenant of the plaintiff in the property in question. It was further stated that there is no relationship of landlord and tenant between the plaintiff and late Bhawani Bhik. It is also stated that there is no question of any amount of arrears of rent for the period of 02.04.1971 to 01.07.1975 amounting to Rs. 3060/- due against late Bhawani Bhik. It is also stated that the defendant is sole owner of the property in question. It is also denied that after the death of Bhawani Bhik, the defendant became the tenant of said property. It is contended that the property in question originally belonged to late Bachu Gwala. 3060/- due against late Bhawani Bhik. It is also stated that the defendant is sole owner of the property in question. It is also denied that after the death of Bhawani Bhik, the defendant became the tenant of said property. It is contended that the property in question originally belonged to late Bachu Gwala. Late Bhawani Bhik was Nivasa (daughter's son) of late Bachu Gwala, who had no other issues except the mother of Bhawani Bhik. Bhawani Bhik fell into bad company and developed habits of gambling and drinking and Bachu Gwala executed a Will dated 10.04.1932, whereby he revoked his previous Will, favouring Bhawani Bhik and bequeathed all his properties including the disputed property in favour of the defendant. It is also stated that the defendant became the absolute and exclusive owner of the property in question after the death of Shri Bachu Gawala and she has been in its possession and beneficial enjoyment since then to this date as its owner and she is neither husband of the defendant nor defendant is tenant of the plaintiff. 4. On the plea raised by the defendant that the plaintiff is not the owner of the suit property and there is no relationship of landlord and tenant between them and that the suit is not cognizable by the Small Causes Court. 5. The Judge Small Causes Court returned the plaint to the plaintiff to institute the suit in regular civil side. Perusal of the order passed by the Judge S.C.C. would reveal that the plaintiff after return of the plaint instituted the same in the Court of Civil Judge (Junior Division), Dehradun, which was numbered as original suit no.203 of 1978 "Daya Ram Vs. Bhagwan Dai". It is apt to note that the plaintiff, without there being any amendment in the plaint, instituted the same suit without any pleading in regard to the title. 6. On the pleadings of the parties, the trial court formulated the following issues in the suit: (i) Whether there is relationship of the landlord and tenant before the parties? (ii) Whether the defendant is a successor by virtue of Will dated 10.04.1932. (iii) Whether the defendants claim over the suit property is barred by estoppel from asserting authority over the property in question. (iv) Whether the tenancy has been legally terminated? (v) Relief? 7. (ii) Whether the defendant is a successor by virtue of Will dated 10.04.1932. (iii) Whether the defendants claim over the suit property is barred by estoppel from asserting authority over the property in question. (iv) Whether the tenancy has been legally terminated? (v) Relief? 7. On behalf of the plaintiff Kashmiri Lal was examined as PW1, Laxman Dass was examined as PW2 and plaintiff-Daya Ram got examined himself as PW3. On behalf of defendant DW1 Ram Pat and DW2 Durga Prasad were examined to prove the Will dated 10.04.1932. defendant-Smt. Bhagwan Devi got examined herself as DW3 and Ram Ashrey was examined as DW4 and denied the plaint averments and prove her case. 8. The plaintiff Daya Ram-PW3 in his cross examination admits that there is no relationship of landlord and tenant between the plaintiff and defendant. 9. Having considered the evidence led by the parties, the trial court recorded its finding on issue nos. 1, 2 & 4 that the sale deed dated 05.04.1966 (Exhibit-2) was executed by Bhawani Bhik in favour of Amla Nand Joshi. Exhibit-3 is sale deed dated 02.04.1968, which was executed by Kashmiri Lal in favour of Daya Ram. Kashmiri Lal was examined as PW1. The trial court recorded its findings that plaintiff in his cross examination has admitted the fact that there is no relationship of landlord and tenant between the plaintiff and defendant and having considered the admissions of the PW3 Daya Ram, the trial court has arrived to conclusion that since there is no relationship of landlord and tenant between the plaintiff and defendant. Learned trial court further recorded its findings that the defendant has successfully proved that the Will dated 10.04.1932 was executed by late Bachhu Gawala in favour of the defendant and defendant became the owner of the property. It has been held that since defendant acquired the property in view of the will dated 10.04.1932 and as per the admissions of the plaintiff there is no relationship of landlord and tenant between the defendant and tenant and the tenancy cannot be terminated by issuing the notice, the trial court has decided the issue nos. 1, 2 & 4 against the plaintiff. The trial court recorded its findings on issue no. 3 that defendant is not estopped by claiming her title. Consequently, the trial court on the basis of findings recorded on issue nos. 1, 2 & 4 against the plaintiff. The trial court recorded its findings on issue no. 3 that defendant is not estopped by claiming her title. Consequently, the trial court on the basis of findings recorded on issue nos. 1 to 4 also recorded its findings on issue no.5 and dismissed the suit vide its judgment and decree dated 04.05.1979. 10. Feeling aggrieved, the plaintiff-respondent preferred a Civil Appeal No. 52 of 1979 "Daya Ram Vs. Bhagwan Davi" before the District Judge, Dehradun. Subsequently, the same was transferred to the Court of Ciivl Judge (Senior Division), Dehradun. Learned 1st appellate court vide judgment and decree dated 30.08.1988 allowed the appeal without reversing the findings of the trial court decreed the suit for recovery of rent and ejectment. Feeling aggrieved, the defendant has filed this second appeal. 11. This second appeal was instituted before Hon'ble High Court of Judicature at Allahabad way back in the year 1988, on 13.12.1988 the appeal was admitted and an interim order was granted. The second appeal was received to this Court in the year 2001. Thereafter, this Court vide order dated 22.12.2016, 24.05.2018, 26.06.2019 & 27.10.2020 have framed the following substantial questions of law: a) Which Will is the genuine one, whether Registered Will dated 13.10.1930 or Un-registered Will dated 10.04.1932? b) Whether all the transactions entered into by Bhawani Bhik viz. mortgage deed dated 25.5.1950, sale deed dated 06.02.1954, sale deed dated 05.4.1966 and rent deed dated 05.04.1966 do have any bearing on the controversy in the parties? c) Whether without framing proper issues arising from the pleadings of the parties, a case may be decided? d) Whether the lower appellate court could decree the suit without setting aside the finding recorded by the trial court? e) Whether in absence of any finding that the predecessor-in-interest of the appellant has committed any default in the payment of rent, the suit on the ground of default could be decreed? f) Whether the first appellate court which was the last court on facts and law erred in law in allowing the appeal without reversing/setting aside finding recorded by the trial court and without recording its finding on any of the issues or any question of law? g) As to whether the second appeal is not maintainable in view of the provisions contained in Section 102 C.P.C., as applicable in the year 1988? g) As to whether the second appeal is not maintainable in view of the provisions contained in Section 102 C.P.C., as applicable in the year 1988? h) As to whether the first appellate court erred in law in appreciating the evidence beyond the pleadings of the plaintiff? 12. The record of the case has been summoned by this Court. However, most of the documents have been weeded out due to efflux of time. The file has been reconstructed on the basis of papers and the statements of parties and their witnesses as available with the parties. 13. The contents of the plaint as well as the pleading made in the written statement have already been adverted to by this Court in preceding paragraphs nos. 2 & 3, thus for the sake of repetition the same are not being reproduced here again. 14. Answer to the substantial question of law 'a': Which Will is the genuine one, whether Registered Will dated 13.10.1930 or Un-registered Will dated 10.04.1932? The defendant produced the Will dated 10.04.1932 executed by late Bachu Gwala, who was the actual owner of the property in dispute, in favour of Bhagwan Devi. The defendant witness DW1 Ram Pat and DW2 Durga Prasad have proved the execution of the Will stating that late Bachu Gawala executed the Will dated 10.04.1932 in favour of defendant. They have also proved the fact that by the Will dated 10.04.1932, late Bachu Gawala revoked the earlier will dated 13.10.1930, which was executed by him in favour of late Bhawani Bhik. Defendant witnesses, namely, DW1 Ram Pat and DW2 Durga Prasad have also proved the fact that late Bachu Gawala was literate and capable to sign the Will dated 10.04.1932. DW4 Ram Ashrey was examined that he was maintaining the accounts of Bhawani Bhik and proved the account books maintained by Bhawani Bhik. He also proved the fact that late Bachu Gawala was literate person and he signed some papers, which are lying in the Municipal record. The trial court has also given its findings that late Bachu Gawala executed the Will dated 10.04.1932 in favour of Bhagwan Devi. The defendant claimed her title on the basis of Will dated 10.04.1932 stating therein that late Bachu Gawala, who was the maternal uncle (father of her husband) executed the will dated 10.04.1932 in her favour. The trial court has also given its findings that late Bachu Gawala executed the Will dated 10.04.1932 in favour of Bhagwan Devi. The defendant claimed her title on the basis of Will dated 10.04.1932 stating therein that late Bachu Gawala, who was the maternal uncle (father of her husband) executed the will dated 10.04.1932 in her favour. In order to prove the Will dated 10.04.1932, the attesting witness of the said Will, namely, Ram Pat DW1 & Durga Prasad DW2 proved the execution of the said Will in favour of the defendant stating that the Will was executed by late Bachu Gawala in favour of Bhagwan Devi on 10.04.1932 and also identified the signatures of late Bachu Gawala. DW4 was examined to prove the fact that late Bachu Gawala was not illiterate person as claimed by the plaintiff rather he was an educated person and also signed the Will dated 10.04.1932, his signatures are also available in the municipal record. The trial Court having considered the Will dated 10.04.1932 recorded its findings that the Will Dated 10.04.1932 was executed by late Bachu Gawala in favour of the defendant revoking the earlier Will dated 13.10.1930executed in favour of Bhawani Bhik. The trial court further recorded its finding that late Bachu Gawala bequeathed the property in question in favour of the defendant. Thus, the substantial question of law 'a' is answered in affirmative that the Will dated 10.04.1932 is genuine whereby, the Will dated 13.10.1930 was revoked. 15. Answer to the substantial question of law:- (b) Whether all the transactions entered into by Bhawani Bhik viz. mortgage deed dated 25.5.1950, sale deed dated 06.02.1954, sale deed dated 05.4.1966 and rent deed dated 05.04.1966 do have any bearing on the controversy in the parties? The plaintiff has filed the mortgaged deed, sale deed and rent deed but there is no pleading in the plaint suggesting that any mortgage deed, sale deed and rent deed was executed by Bhawani Bhik in favour of Kashmiri Lal, who subsequently executed the sale deed in favour of plaintiff. It is also nowhere has stated that Late Bhawani Bhik mortgaged the property in favour of Pt. Amlanand Joshi vide mortgage deed dated 25.5.1950 and registered the same on 27.05.1950. It is also not stated that the Kashmiri Lal executed any sale deed on 05.04.1966 in favour of the plaintiff. It is also nowhere has stated that Late Bhawani Bhik mortgaged the property in favour of Pt. Amlanand Joshi vide mortgage deed dated 25.5.1950 and registered the same on 27.05.1950. It is also not stated that the Kashmiri Lal executed any sale deed on 05.04.1966 in favour of the plaintiff. Since, there is no pleading in the plaint in regard to these documents, therefore, the said document cannot be considered for deciding title of the plaintiff on the property in question. It is settled law that the evidence cannot be looked into beyond the pleadings. Hon'ble Apex Court in Bondar Singh & others Vs. Nihal Singh & others reported in (2003) 4 SCC 161 has categorically held that no evidence beyond pleadings could be looked into. In Abubakar Abdul Inamdar Vs. Harun Abdul Inamdar (supra) reported in 1995 (5) SCC 612 the Supreme Court observed that when the plea of adverse possession was not raised in the pleadings, no amount of proof can substitute the pleadings which are the foundation of a claim of a litigating party. Hon'ble Apex Court in the case of Rajasthan State Road Transport Corporation and another v. Bajrang Lal, reported in (2014) 4 SCC 693 has held as under: 14. It is settled proposition of law that a party has to plead the case and produce/adduce sufficient evidence to substantiate his submissions made in the plaint and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. (Vide: M/s. Larsen & Toubro Ltd. & Ors. v. State of Gujarat & Ors., AIR 1998 SC 1608 ; National Building Construction Corporation v. S. Raghunathan & Ors., AIR 1998 SC 2779 ; Ram Narain Arora v. Asha Rani & Ors., (1999) 1 SCC 141 ; Smt. Chitra Kumari v. Union of India & Ors., AIR 2001 SC 1237 ; and State of U.P. v. Chandra Prakash Pandey, AIR 2001 SC 1298 .) 15. In M/s. Atul Castings Ltd. v. Bawa Gurvachan Singh, AIR 2001 SC 1684 , this Court observed as under:- "The findings in the absence of necessary pleadings and supporting evidence cannot be sustained in law." (See also: Vithal N. Shetti & Anr. v. Prakash N. Rudrakar & Ors., (2003) 1 SCC 18 ; Devasahayam (Dead) by L.Rs. v. P. Savithramma & Ors., (2005) 7 SCC 653 ; Sait Nagjee Purushotam & Co. v. Prakash N. Rudrakar & Ors., (2003) 1 SCC 18 ; Devasahayam (Dead) by L.Rs. v. P. Savithramma & Ors., (2005) 7 SCC 653 ; Sait Nagjee Purushotam & Co. Ltd. v. Vimalabai Prabhulal & Ors., (2005) 8 SCC 252 , Rajasthan Pradesh V.S. Sardarshahar & Anr. v. Union of India & Ors., AIR 2010 SC 2221 ; Ritesh Tiwari & Anr. v. State of U.P. & Ors., AIR 2010 SC 3823 ; and Union of India v. Ibrahim Uddin & Anr. (2012) 8 SCC 148 ). It is settled position in law that the plaintiff has to succeed on the strength of his own case and not on the weaknesses of his opponent. The burden lies upon the plaintiff to prove the factum of ownership of the suit property but the plaintiff utterly failed to plead and prove his title over the suit property. Hon'ble Apex Court in the case of Sakharam Mahajan Vs. Damodar Trimback Tanksale (dead) & Ors reported in (2007) 6 SCC 737 has held that the suit is for recovery of possession on the strength of title, the burden is on the plaintiff to establish that title. In another judgment of Hon'ble Apex Court in the case of State of MP Vs. Nomi Singh and another reported in (2015) 14 SCC 450 has held that the plaintiff has to stand on his own legs by proving his case. In the case of Union of IndiaVs. Vasavi Co-operative Housing Society Ltd. reported in AIR 2014 (4) CTC 471 has held that the plaintiff has to succeed only on the strength of its own title by adducing sufficient evidence. Thus, the substantial question is decided accordingly. 16. Answer to the substantial question of law:- (c) Whether without framing proper issues arising from the pleadings of the parties, a case may be decided? The plaintiff nowhere has pleaded on what basis he has become the owner/landlord of the suit property. Mere assertion that plaintiff is the owner/landlord of the suit property is not sufficient to deal with the title of the property. On the perusal of the issues, as framed by the trial court, would show that no question of title has been framed by the trial court. The plaintiff did not prove his title over the suit property by raising the plea in this regard, thus the substantial question of law V is decided accordingly. 17. On the perusal of the issues, as framed by the trial court, would show that no question of title has been framed by the trial court. The plaintiff did not prove his title over the suit property by raising the plea in this regard, thus the substantial question of law V is decided accordingly. 17. Answer to the substantial question of law d:- Whether the lower appellate court could decree the suit without setting aside the finding recorded by the trial court? In view of the admission himself made by Daya Ram PW3 that there is no relationship of landlord and tenant between the plaintiff and defendant. The relevant portion of the statement of PW3 is extracted below: ÞHkokuh fHk[k us 5000 #i;s dk dksbZ dtZ ugha fy;k Fkk vkSj u dksbZ tk;nkn fy[kh xbZA 60 #i;s efgus 5000 #i;s dk lwn ugha r; gqvk FkkA tc rd fd Hkokuh fHk[k ftUnk jgk rc rd eSaus E;wfuflisfyVh esa uke ugha ntZ djkA ;g eSa ugha dg ldrk fd blus VSDl fn;k ;k ugha tuojh 1970 esa ¼05-01-70½ eq>s ;kn ugha fd 5-1-70 dks :i;s 60@ & #i;s fn;s ;k ughaA ;g eSa ugha dg ldrk gw¡ fd Hkokuh us dc&dc :i;k fn;kA mlus FkksM+k cgqr tks :i;k fn;k Fkk og lwn dk fn;k FkkA ;g dguk xyr gS fd ckj&ckj tks :i;k fn;k x;k ogh 5000 ds eqrkfyd FkkA ;g dguk lgh gS gekjh rkyqdkr fdjk;snkj o ekfyd ds ugha gSA vxj ;g fdjk;snkj ekurh rks ;g >xM+k ugha gksrkAÞ The trial court recorded its finding that plaintiff failed to plead his case that on what basis he become the owner of the suit property and dismissed the suit of the plaintiff but the 1st appellate court without reversing the findings recorded by trial court or without formulating any point of determination or without recording any findings on all the issues so framed by the trial court, the 1st appellate court in cryptic and cursory manner allowed the appeal of the plaintiff. It is held that the 1st appellate court committed illegality in allowing the appeal without reversing the findings recorded by the trial court. Thus, the substantial question of law is decided accordingly. 18. It is held that the 1st appellate court committed illegality in allowing the appeal without reversing the findings recorded by the trial court. Thus, the substantial question of law is decided accordingly. 18. Answer to the substantial question of law:- (e) Whether in absence of any finding that the predecessor-in-interest of the appellant has committed any default in the payment of rent, the suit on the ground of default could be decreed? After withdrawal of the suit from the Court of Provincial of Small Causes Court, the plaintiff instituted the suit in regular civil court claiming himself the owner/landlord of the suit property. Perusal of the plaint would reveal that neither the plaintiff has pleaded his title nor any evidence has been led in this regard. Plaintiff-Daya Ram himself has admitted in his cross examination that there is no relationship of landlord and tenant between the plaintiffs and defendant. Thus, the substantial question of law is decided accordingly. 19. Answer to the substantial question of law f :- Whether the first appellate court which was the last court on facts and law erred in law in allowing the appeal without reversing/setting aside finding recorded by the trial court and without recording its finding on any of the issues or any question of law? At this juncture, it would be apt to reproduced Order 41 Rule 31 C.P.C., same is extracted below; "Order 41 Rule 31 Contents, date and signature of judgment - The judgment of the appellate Court shall be in writing and shall state - (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; And shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein. Perusal of the judgment of 1st appellate court would reveal that the appellate court had not followed the provisions of Order 41, Rule 31 of C.P.C. as such, the judgment is vitiated in law. Hon'ble Apex Court in catena of decisions has held that 1st appellate court is the final court of facts. The judgment of the appellate court must therefore reflect court's application of mind and it must record its findings supported by reasons. Hon'ble Apex Court in catena of decisions has held that 1st appellate court is the final court of facts. The judgment of the appellate court must therefore reflect court's application of mind and it must record its findings supported by reasons. The law relating to powers and duties of the first appellate court is well fortified by the legal provisions and judicial pronouncements. The 1st appellate court should be vigilante in deciding the first appeal inconsonance of the provisions contained in Order 41 Rule 31 C.P.C. Reference may be made to H. Siddiqui (Dead) by Lrs. vs. A. Ramalingam reported in (2011) 4 SCC 240 . In the said case, while interpreting the Order 41 Rule 31 CPC, Hon'ble the Apex Court has held as under :- "The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions." In Laliteshwar Prasad Singh vs. S. D. Srivastava reported in (2017) 2 SCC 415 , Hon'ble the Apex Court has held that an appellate court is the final court of facts. The judgment of the appellate court must therefore reflect court's application of mind and As per Order XLI Rule 31 Code of Civil Procedure, the judgment of the first appellate court must explicitly set out the points for determination, record its reasons thereon and to give its reasonings based on evidence. It is further held that the points which arise for determination by a court of first appeal must cover all important questions involved in the case and they should not be general and vague. Even though the appellate court would be justified in taking a different view on question of fact that should be done after adverting to the reasons given by the trial judge in arriving at the finding in question. When appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by trial court; expression of general agreement with reasons given by trial court would ordinarily suffice. However, when the first appellate court reverses the findings of the trial court, it must record the findings in clear terms explaining how the reasoning of the trial court are erroneous. In view of he forgoing discussion, this Court is of the view that the 1st appellate court, while allowing the appeal of the plaintiff failed to follow the provisions of Order 41 Rule 31 of the Code. Thus, the substantial question of law is decided accordingly. 20. Answer to the substantial question of law:- (g) As to whether the second appeal is not maintainable in view of the provisions contained in Section 102 C.P.C., as applicable in the year 1988? Learned counsel for the respondent has raised his plea before this Court that since the second appeal is arising out of the suit for recovery and ejectment, therefore, in view of the provisions contained in Section102 of C.P.C. as applicable in the year 1988, the present second appeal is incompetent. In support of his contention, he referred the judgment of Hon'ble Calcutta High Court rendered in Hara Mohan Saha Vs. Sudhanshu Bhusan Pal and Ors. reported in AIR 1923 Calcutta 83. At this juncture, it would be apt to reproduce Section 102 of C.P.C. (Old) Act, 1982 and Section 23 of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as 'the Act'), which reads as under: 102. Sudhanshu Bhusan Pal and Ors. reported in AIR 1923 Calcutta 83. At this juncture, it would be apt to reproduce Section 102 of C.P.C. (Old) Act, 1982 and Section 23 of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as 'the Act'), which reads as under: 102. No second appeal in certain suit.- No second appeal shall lie in any suit of the nature cognizable by Courts of the small causes, when the amount or value of the subject-matter of the original suit does not exceed. "23. Return of plaints in suits involving questions of title.- (1) Notwithstanding anything in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend upon the proof or disproof of a title to immovable property or other title which such a Court cannot finally determine, the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title. (2) When a Court returns a plaint under subsection (1), it shall comply with the provisions of the second paragraph of section 57 of the Code of Civil Procedure and make such order with respect to costs as it deems just and the Court shall, for the purposes of the Indian Limitation Act, 1877 be deemed to have been unable to entertain the suit by reason of a cause of a nature like to that of defect of jurisdiction. Learned counsel for the appellant would submit that in the original suit there was important question of title involved and not the incidental question of title was to be decided and therefore after return of the plaint under Section 23 of the Provincial of Small Causes Court Act, the said suit cannot be termed as SCC suit and the same being original suit involving question of title, therefore, section 102 of C.P.C. cannot be attracted and, therefore, the contention of learned counsel for the respondent that the second appeal is not maintainable is misconceived. He would further submit that under Section 102 of C.P.C., there is no provision for treating regular civil suit as SCC suit for the purpose of Section 102 of C.P.C. After going through the ratio of law laid down by Hon'ble Calcutta High Court in the judgment (supra), this Court is of the view that in said case, it has been held that in view of the provisions contained in Section 23 of the Act, the case should be tried as framed and the question of title may be gone into only incidentally in order to decide the merits of the case. The facts of judgment (Supra) are entirely different to the present case, wherein it has been held that in exercise of power under Section 23 of the Act that return the plaint to be presented to a Court having jurisdiction to determine the title. It does not say, determine the title finally. Admittedly, the Judge, SCC returned the plaint under Section 23 of the Act to institute a suit in regular civil court. In the plaint, the plaintiff has claimed that he is the owner/landlord of the suit property and terminated the tenancy of Bhawani Bhik and thereafter, the defendant become the tenant of the property in question. The plaintiff nowhere has pleaded on what basis he has become the owner of the suit property. Mere assertion that plaintiff is the owner/landlord of the suit property has not sufficient to deal with the title of the property. Perusal of the plaint would show that the plaintiff is not averred on what basis he got the title over the suit property. Furthermore, on the perusal of the issues, as framed by the trial court, would show that no question of title has been framed by the trial court. Since, the defendant has raised an issue on title that the plaintiff is not the owner of the suit property, the court below should have framed the issue in this regard but it seems that plaintiff did not raised the plea before the trial court that the issue of title has not been framed by the trial court. Since, the plaintiff has claimed his title/ownership on the suit property, therefore, the question of title/ownership is involved which cannot be said to be an incidental question of title. Since, the plaintiff has claimed his title/ownership on the suit property, therefore, the question of title/ownership is involved which cannot be said to be an incidental question of title. Since, the regular suit was filed claiming title over the suit property, which was dismissed by the trial court, first appeal under Section 96 of the C.P.C. was filed, therefore, the suit filed by the plaintiff would remain the title suit and as the question of title/ownership is not the incidental question of title, is involved, thus, the second appeal is competent. The substantial question of law 'g' is decided accordingly and it is held that the second appeal is competent. 21. Answer to the substantial question of law:- (h) As to whether the first appellate court erred in law in appreciating the evidence beyond the pleadings of the plaintiff? The plaintiff has averred that he is owner/landlord of the suit property. Plaintiff has not averred that on what basis he has became the owner of the suit property. Since, the SCC suit was returned under Section 23 of the Act to be instituted in regular civil side and claiming relief of title, but the plaintiff did not make efforts to file suit by amending the plaint based on title. However, the plaintiff has filed the mortgaged deed, sale deed and rent deed but fact remains that there is no pleading in the plaint suggesting that any mortgage deed, sale deed and rent deed were executed by Bhawani Bhik in favour of Kashmiri Lal, which consequently, transferred in favour of plaintiff. It is settled law that the evidence cannot be looked into beyond the pleadings. Hon'ble Apex Court in Mahendra L. Jain & others Vs. Indore Development Authority & Others reported in (2005) 1 SCC 639 , this Court held that mere non-production of documents would not result in adverse inference. If a document was called for in the absence of any pleadings, the same was not relevant. An adverse inference need not necessarily be drawn only because it would be lawful to do so. Hon'ble Apex Court in catena of judgments has held that a decision of a case cannot be based on grounds outside the pleadings of the parties. No evidence is permissible to be taken on record in absence of the pleadings in that respect. An adverse inference need not necessarily be drawn only because it would be lawful to do so. Hon'ble Apex Court in catena of judgments has held that a decision of a case cannot be based on grounds outside the pleadings of the parties. No evidence is permissible to be taken on record in absence of the pleadings in that respect. No party can he permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. It was further held that where the evidence was not in the line of the pleadings, the said evidence cannot be looked into or relied upon. Thus, the substantial question is decided accordingly. 22. In view of the above findings, the substantial questions of law from (a) to (h) are decided, accordingly, in favour of the appellant. 23. The first appellate court has committed illegality in allowing the appeal of the plaintiff/respondent. Thus, the impugned order is unsustainable. The same is liable to be set aside. 24. As a result, the second appeal is allowed. The impugned judgment and decree dated 30.08.1988 passed by Civil Judge, Senior Division, Dehradun in Civil Appeal No.52/1979 is set aside. The original suit filed by the plaintiff is hereby dismissed. 25. In the facts and circumstances, parties shall bear their own costs. 26. Registry is directed to send back the lower court record.