Friday 3 June 2016

Whether better particulars furnished by plaintiff will become part of plaint?

 In the context of the substantial questions of law which
have been framed, it would be relevant to note that the plaintiff  vide
his reply to the application dated 04.01.1979 of the defendants for
better particulars, in paragraph no.2 of the said reply, relies upon the
Gift­deed and has mentioned specifically that by the said gift­deed the
grand  mother   of  the   plaintiff  had  gifted the   said  property  to the
plaintiff's mother and since the plaintiff was the only surviving heir of
his mother, the plaintiff' had acquired the title to the said property.
13. It is well settled that when better particulars which are
sought for by the other side, have been   furnished by the plaintiff,
they   have   the   effect   of   becoming   part   of   the   plaint   and   it   was
therefore, incumbent upon the defendants to deal with the said giftdeed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL No. 444 OF 1994.
 Datta s/o Dau Shrawale,

VERSUS
Namdeo Jalbaji Diwekar

­­­­­­­­­­­­­­­
CORAM : R.M.SAVANT, J.
DATED   : 10.01.2011
Citation: 2011(2) ALLMR609,2011(3) MHLJ162



The above Second Appeal arises out of the judgment and
decree dated 04.10.1994 passed by the   Additional District Judge,
Pusad in Regular Civil Appeal No. 59/1990 by   which, the decree
dated 22.02.1988 passed by the Joint Civil Judge, Junior Division,
Pusad  in Regular Civil Suit No.159/1978, has been confirmed.  The3
above   Second   Appeal   raises   the   substantial   questions   of   law   as
mentioned in ground Nos. 5, 11 and 12 of the memo of Appeal. The
same read thus :
“5. Whether a suit by a co­owner for possession is
maintainable without impleading the other coowners
  ?   If   no,   whether   in   the   facts   and
circumstances   of   the   case   the   suit   of   the
respondent   for   possession   competent   and
maintainable at the instance of the respondent
alone ?
11. Whether  it is open for the Court to read in
evidence documents not pleaded in the plaint ?
If no, whether the Courts below were right in
relying   upon   the   alleged   gift   deed   dated
16.01.1930   at   Exh.23   ?     In   absence   of
necessary pleadings in the plaint to determine
the title of the plaintiff ?
12. Whether Section 90 of the Indian Evidence Act,
1872 vests discretion with the Court to apply
the   presumption   of   proper   attestation   and
execution to a document 30 years old ?  If yes,
whether in the facts and circumstances of the
case the Courts below have properly exercised
its   discretion   of   raising   the   presumption
available   under   Section   90   of   the   Indian4
Evidence   Act   to   the   alleged   gift­deed   dated
16.1.30 ?”
In so far as the ground no.5 is concerned, Shri  D.C. Daga, the learned
Counsel  appearing for appellants fairly conceded that in view of the
legal position,   and in view of the authoritative pronouncements of
this Court he would not be pressing the said ground, therefore, the
questions   of   law   in   ground   nos.   11   and   12   only   survive   for
consideration in the above Second Appeal.  The background facts in
nut shell are as under. 
2. The respondent herein is the original plaintiff.  The suit site
is an open site bearing Municipal property No.37, ad­measuring 60
feet in length from South to North; 30 feet in width from East to West,
bounded towards East by open site of Punjabai;  towards West by the
road and house of Chandrakant; towards South by West side land of
Sawitribai   and   to   the   North,   houses   of   Sakharam,   Hiraman   and
Ukanada, whereupon there is a Samadhi and a platform ad­measuring
16   x   10   feet   on   the   North­West   corner,   which   is   owned   by   the
plaintiff.   It is the case of the plaintiff that the said suit site is an
ancestral property.  His name is shown in the Municipal assessment
list, as its owner.   It is further the case of the plaintiff that he is5
regularly paying the taxes to the Municipal Council.   The plaintiff was
a  member  of   Armed  Forces,  but   was  discharged  from  the  Armed
Forces since he lost his eye sight on the Front.  It is his case, that the
defendants   took   undue   advantage   of   his   absence,   blindness   and
helplessness, and encroached upon the suit site on 27.10.1977 and
constructed a hut and a cattle shed on it.  It is further the case of the
plaintiff that the defendants gradually encroached upon the remaining
portion/site finally on 13.03.1978 and dispossessed the plaintiff.  The
plaintiff.   therefore,   filed   the   suit   being   Regular   Civil   Suit   No.
159/1978 for possession against the defendants.  
3. It is the case of the defendants that the suit site is their
ancestral property and their father was in exclusive possession of it till
1977, and after the death of their father, they have inherited it.   They
denied that they have encroached upon the suit site and dispossessed
the   plaintiff.     According   to   the   defendants,   the   site   wherein   the
Samadhi is situated, as also the tomb, is   owned by them and its
owner   was   their   great   grand   father   ­   Shri   Dau.     The   defendants
contended that the suit was bad for non­joinder of necessary parties,
as the plaintiff had not joined one Bhagirathibai, who was daughter of
Dau and  who is their sister.  The defendants, therefore, prayed for
dismissal of the suit.6
4. The   Trial   Court   on   the   basis   of   the   pleadings   framed
relevant issues.   The Trial Court initially by its judgment and order
dated 17.02.1982, decreed the suit and granted the relief sought by
the plaintiff.   The defendants aggrieved by the said decree passed
against them, carried the matter in Appeal being Regular Civil Appeal
No. 66/1983.  The Appellate Court by its judgment and order dated
09.02.1984 set aside the decree on the ground that the description of
the property was not proper, and therefore, remanded the matter back
to the Trial Court and allowed the  parties to amend their respective
pleadings.   The parties accordingly carried out the amendment and
led evidence in support of their respective cases.   The Trial Court
again by its judgment and order dated 22.02.1988 decreed the suit.
In so far as the ownership of the plaintiff is concerned, the Trial Court
on the basis of the evidence on record and especially the Gift­deed
dated 16.01.1930 Exh.23, by which the grand mother of the plaintiff
had gifted the property to the plaintiff''s mother along with other
properties   at   Umarkhed,   as   also   the   Municipal   assessment   list
(Exhs.24   and   72),   held   that   the   plaintiff   was   the   owner   of   the
property, and therefore, decreed the suit and ordered enquiry for
mesne profits under Order XX Rule 12 of the Civil Procedure Code.7
5. Being   aggrieved   by   the   decree   dated   22.02.1988,   the
defendants filed Regular Civil Appeal No. 59/1990.  The said Appeal
came to be dismissed and the findings of the Trial Court in so far as
the Gift­deed is concerned, were confirmed.     The Lower Appellate
Court has in terms held that the trial Court was right in holding that
the property was of the ownership of  plaintiff on the basis of the Giftdeed
(Exh.23) and extract of Municipal assessment record.  In so far
as the case of the defendants was concerned, both the Courts below
have held that except bare testimony of the original defendant no.3,
the   defendants   have   not   produced   any   document,   except   some
assessment list, which was also not pertaining to the suit plot to assert
their  title as well as possession over the suit plot.   Both the Courts
therefore, have concurrently recorded a finding of fact as regards the
factum of plaintiff having proved his title to the suit property.
6. Before going to the submissions of the respective Counsel,
it   would   be   relevant   to   note   that   in   so   far   as   the   Gift­deed   is
concerned, which is dated 16.01.1930 (Exh.23), the Trial Court at the
time of passing of the first decree dated 17.02.1982 had recorded a
finding while deciding issue no.1 in paragraph no.4 of its order to the
following effect.8
“.....   In the cross­examination of the   plaintiff it is
found true that there is no mention of the gift in the
plaint, but then it must not be forgotten that the giftdeed
is older than 50 years and equally  old is the
plaintiff and therefore it is possible that this fact was
not revealed by the plaintiff to his young Advocate.
Still then, later on, before the evidence as a reply to
the application filed by the defendant, the plaintiff has
stated in Exh.10 that the suit property was gifted by
his grand­mother to his mother.”
7. It is required to be noted that after such a   finding was
recorded,     the   matter   was   carried   to   the   Appeal   Court   by   the
defendants by filing Regular Civil Appeal No. 66/1983 and the Lower
Appellate Court had remanded the matter back to the Trial Court on
the ground that the description of the property was not proper and
clear, the Lower Appellate Court while remanding the matter had
permitted the parties to amend their pleadings.   It is significant to
note that though such opportunity was granted, the defendants herein
had not amended their written statement, though being aware of the
finding recorded by the Trial Court at the time of passing of the first
decree on 17.02.1982.  In so far as the defendants are concerned, in
the   written  statement   they  have  merely  stated  that   they  have  no
knowledge of the said Gift­deed dated 16.01.1930 Exh.23.9
8. I   have   heard   Shri   D.C.   Daga,   the   learned   Counsel   for
appellants/original   defendants   and   Shri   B.N.   Mohta,   the   learned
Counsel for Respondent/original plaintiff.
It   is   the   contention   of   Shri   Daga,   the   learned   Counsel
appearing on behalf of the appellants, that both the Courts below
have erred in decreeing the suit on the basis of the Gift­deed dated
16.01.1930 when there were no pleadings referring to the said Giftdeed
in the plaint.   The learned Counsel submitted that in absence of
the pleadings, the plaintiff could not have led evidence, on the basis of
said Gift­deed.     The learned Counsel in support of his submissions
sought to rely upon the judgment of Hon'ble Apex Court reported in
AIR   1987   SC   2179   (Vinod   Kumar   Arora   .vrs.   Smt.   Surjit   Kaur).
Paragraph no.11 of the said judgment  is material and is reproduced
herein.
“11. However, when the appellant entered the
witness   box,   he   gave   up   the   case   set   out   in   the
written statement and propounded a different case
that the hall had been taken on lease only for nonresidential
  purposes.       The   perceptible   manner   in
which   the   appellant   had   shifted   his   defence   has
escaped the notice and consideration of the Statutory10
Authorities.  Both the Authorities have failed to bear
in mind that the pleadings of the parties form the
foundation of their case and it is not open to them to
give   up   the   case   set   out   in   the   pleadings   and
propound a new and different case.   Another failing
noticed in the judgments of the Rent Controller and
the   Appellate   Authority   is   that   they   have   been
oblivious to the fact that the respondent had leased
out the hall to the appellant only for a period of 11
months.   Such being the case, even if the respondent
had come to know soon after the lease was created
and the appellant was using the hall to run a clinic,
she may have thought it prudent to let the appellant
have his way so that she can recover possession of the
hall after 11 months without hitch whereas if she
began quarreling with the appellant for his running
a clinic, she would have to be locked up in litigation
with him for a considerable length of time and can
obtain possession of the hall only after succeeding in
the litigation.   Yet another factor which vitiates the
findings   of   the   Rent   Controller   and   the   Appellate
Authority is that both of them have overlooked Sec.
11 of the Act, and the sustainability  of any lease
transaction entered in contravention of Section 11.
The   legislature,   with   a   view   to   ensure   adequate
housing     accommodation   for   the   people,   has
interdicted by means of Section 11 the conversion of
residential   buildings   into   non­residential   ones11
without the written consent of the Rent Controller.
Admittedly, in this case the parties had not obtgained
the   consent   in   writing   of   the   Rent   Controller   for
converting the hall in a residential building into a
clinic.  Such being the case, the appellant cannot get
over the embargo placed by Section 11 by pleading
that the respondent was well aware of his running a
clinic   in   the   hall   and   that   she   had   not   raised
objection at any time to the running of the clinic.
Learned Counsel for the appellant referred us to the
decision   in   Dr.   Gopal   Dass   Verma   v.     Dr.   S.K.
Bharadwaj (1962) 2 SCR 678 : (AIR 1963 SC 337)
and argued that the ratio laid down therein would be
fully attracted to the facts of this case.  It is true that
in the said decision, it was held that when a leased
premises   was   used   by   the   lessee   incidentally   for
professional purposes and that too with the consent
of the landlord, then the case would go out of the
purview of Section 13[3][e] of the Delhi and Ajmer
Rent   Control   Act,   1954   and   consequently   the
landlord would not be entitled to see eviction of the
tenant on the ground he required the premises for his
own residential requirements.   We find the facts in
that case to be markedly different and it was the
speciality of the facts which was largely instrumental
in persuading this Court  to render its decision in the
aforesaid   manner.     Moreover,   the   Court   had   not
considered the question whether the conversion of a12
residential   premises   into   a   non­residential   one
without the permission of the Rent Controller was
permissible under the Delhi & Ajmer Rent Control Act
and   if   it   was   not   permitted,   how   far   the
contravention would affect the rights of the parties.
In   our   opinion,   the   more   relevant   decision   to   be
noticed would be Kamal Arora v. Amar Singh, 1986
[Suppl]   SCC   481   where   this   Court   declined   to
interfere with an order of eviction passed in favour of
the landlord as the Court was of the view that even if
the   landlord   and   the   tenant   had   converted   a
residential   building  into   a  non   residential  one   by
mutual consent, it would still be violative of Section
11   of   the   East   Punjab   Rent   Restriction   Act   and,
therefore, the landlord cannot be barred from seeking
recovery of possession of the leased building for his
residential needs.   We are therefore of the view that
the findings of the Rent Controller and the Appellate
Authority about the appellant having taken the hall
on lease only for running a clinic and that he had
not   changed   the   user   of   the   premises   have   been
rendered   without   reference   to   the   pleadings   and
without   examining   the   legality   of   the   appellant's
contentions in the light of Section 11 of the Act.   We
do not therefore think the High Court has committed
any error in law in ignoring the findings rendered by
the   Statutory   Authorities   about   the   purpose   for
which the hall had been taken on lease.”13
9. The learned Counsel for the appellant further contended
that, in so far as the document which is more than 30 years old is
concerned, though its execution need not be proved, the contents
would have to be proved.  In the instant case, the contents were not
proved, hence the said document was of no avail to the appellant to
support   their   case   of   having   acquired   the   ownership   of   the   suit
property on account of the said gift­deed.   The learned Counsel  has
placed reliance upon the judgment a learned Hon'ble Single Judge of
this   Court   reported   in     2005   [1]   Mh.L.J.   306   (Prabhakar   Balasa
Saoji .vrs. Subhash Baburao Malode and others).  The learned Counsel
submitted that the fact that the defendants were in possession of the
property since last more than 30 years was a factor in their favour to
show that they were the owners and therefore, are in possession of
the property.
10. Per contra,   it is submitted by the learned Counsel Shri
B.N. Mohta, appearing for the respondent/ original plaintiff, that the
contentions of defendants that there is no mention of the document in
the pleadings is misconceived.  The learned Counsel submitted that,
prior to filing of their written statement the defendants has filed an
application dated 20.11.1978 (Exh.8) and called upon the plaintiff to14
give better particulars of the case made out in the plaint, on the basis
of the orders passed on the said application the better particulars were
furnished   to   the   defendants   by   the   plaintiff'   vide   his   reply   dated
04.07.1979   (Exh.10).   In   paragraph   no.2   of   the   said   reply   it   is
categorically mentioned by the plaintiff, that the said property was
gifted to the plaintiff's mother by the plaintiff's grand­mother and
since the plaintiff is the only surviving,  he  has acquired title to the
suit property.   Shri Mohta, the learned Counsel further submitted that
it is not enough for the defendants to show ignorance of the existence
of the Gift­deed.  There  ought to have been specific pleading denying
the said document and challenging the same.  In absence of any such
challenge to the contents of the  said document, it was not necessary
for the plaintiff to prove the said document which was more than 30
years old.     The learned Counsel for the plaintiff relied upon the
judgment   of   Madhya   Pradesh   High   Court   reported   at     AIR   1992
Madhya Pradesh 1 (Indore Bench) (Hariram Lehrumal Sindhi .vrs.
Anandrao Narayanrao Mukati and others), wherein it has been held
that pleading showing want of knowledge of a particular fact amounts
to admission of the said fact.    Reference could also be made to the
judgment of the Hon'ble Apex Court reported in (1993) 4 SCC 6 in the
matter of  Lohia Properties (P) Ltd. .vrs. Atmaram Kumar)  and the
judgment   of     the   learned   Single   Judge   of   this   Court   reported   in15
(1995) 1 Mh.L.J. 22 in the matter of (Sambhaji Laxman Pawar .vrs.
Abdul Wahed Rahmatullah)  wherein it has been held that the nondenial
of the averment in the written statement amounts to admission.
The learned Counsel   submitted that since both the Courts   have
concurrently held that in so far as the plaintiff is concerned he has
proved his title to the suit property, this Court should therefore not
interfere.
11. I have heard the learned Counsel for the parties and given
my anxious consideration to the rival contentions.
12. In the context of the substantial questions of law which
have been framed, it would be relevant to note that the plaintiff  vide
his reply to the application dated 04.01.1979 of the defendants for
better particulars, in paragraph no.2 of the said reply, relies upon the
Gift­deed and has mentioned specifically that by the said gift­deed the
grand  mother   of  the   plaintiff  had  gifted the   said  property  to the
plaintiff's mother and since the plaintiff was the only surviving heir of
his mother, the plaintiff' had acquired the title to the said property.
13. It is well settled that when better particulars which are
sought for by the other side, have been   furnished by the plaintiff,
they   have   the   effect   of   becoming   part   of   the   plaint   and   it   was
therefore, incumbent upon the defendants to deal with the said giftdeed.
 However, it is relevant to note that in the written statement,
the defendants have denied the knowledge of the gift­deed.   The
deposition of the witness of the defendants is also replete with the
absence of knowledge of the Gift­deed by the defendants.   If the
defendants were aggrieved by the fact that the plaintiff was claiming
title   on   the   basis   of   the   gift­deed,   the   defendants   ought   to   have
categorically taken a stand one way or the other as regards the said
gift­deed.   In the light of the material on records, especially Exh.8
which   is   an   application   of   the   defendants   and   the   reply   dated
04.01.1979 [Exh.10], it cannot be said that as both the Courts below
have relied upon the document which is not part of the pleadings.  In
my view, therefore, there is no merit in the said contention of the
appellants/ defendants.
14. In   so   far   as   the   contention   of   learned   Counsel   for   the
appellants/defendants, that though in respect of a document  which is
more than 30 years old, its execution etc. need not be proved, but its
contents would have to be proved.   In my view the said submissions
is   totally   misconceived.     As     mentioned   hereinabove,     that   the
pleadings of the defendants as well as the deposition, is replete  with17
the stand of the defendants showing absence of knowledge of the said
gift­deed   dated   16.01.1930.     There   is,   therefore,   absolutely   no
challenge to the said document by the defendants.   Once it is held
that denial of knowledge would  amount to an admission, then there
was no obligation on the part of the plaintiff to prove the contents of
the said gift deed dated 16.01.1930, and therefore, both the Courts
below have rightly proceeded on the basis that the gift­deed does not
require any further corroboration.   In my view, the reliance on the
judgment of learned Single Judge of this Court in Prabhakar Saoji's
Case [supra] by the appellant is misplaced in the light of the aforesaid
facts.
15. Though Shri D.C. Daga, learned Counsel for the appellants
sought to lay much stress on the aspect that both the Courts below
have proceeded to decree the suit on the basis of the gift­deed, in
absence of any pleadings in that behalf, it is required to be noted that
though the trial Court at the first stage, when the decree was passed
on 17.02.1982 and thereafter, at the second stage on remand on
22.02.1988 had recorded a finding in respect of the   gift­deed.  The
defendants while challenging the decree in the first Appellate Court
had not taken any specific ground assailing  the decree on the ground
now sought to be raised in the Second Appeal.   In my view, if the18
defendants were so aggrieved by the said fact they could have made it
a   ground   of   challenge   in   the   grounds   in   the   memo  of   appeal   of
Regular Civil Appeal No. 59/1990, which they had filed against the
decree dated 22.02.1988, but,   having not done so, in my view, the
defendants are not entitled to raise the said ground in the present
Second Appeal.   However, since I have already dealt with the two
substantial questions of law, in respect of which I have recorded my
answers hereinabove, in my view, there is no requirement to dismiss
the Second Appeal on the ground that the defendants have not raised
the ground now sought to be raised, before the first Appellate Court.
16. Both the  Courts below, as mentioned hereinabove have
concurrently held on the basis of the said gift­deed, that the plaintiff
has proved his title to the suit property.   The question of law stands
answered in terms of what is stated hereinabove.  In my view, there is
no merit in the Second Appeal, which is accordingly dismissed, with
no order as to costs. 
JUDGE
Rgd.
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