Friday, 3 June 2016

Whether court can consider oral evidence in absence of pleading?

Pleading of the parties in a civil
 suit is significant and important. It is
 foundation of the stance taken by the parties in
 civil Suit. Order VI Rule 1 provides that plaint
 is a pleading of the plaintiff and written
 statement is pleading of the defendant. Parties
 have to lead their evidence according to their
 pleading. Especially, oral evidence cannot be, in
 the absence of pleading, as has been provided under
 Order VI Rule 2 of the Code. Oral evidence in the
 absence of pleadings, has to be ignored. The
 Supreme Court has time and again recognised the
 importance of the pleading. Recent judgment of the
 Supreme Court in the matter of "State Bank of India
V/s S. N. Goyal" reported in 2008 AIR SCW 4355
 may be usefully referred to. In the case on hand,
 copy of the written statement is not available,
 either with the learned counsel appearing for the
 Appellant or for the Respondent. However, pleading
 of the parties have been set out in nutshell by the
 Courts below in their judgments. From the
 judgments, it appears that such pleading was not
 raised by the defendants in their written statement

 itself. Consequently, there was no issue and no
 finding of the trial Court, no point for
 determination and no finding of the first Appellate
 Court. Such new plea, raised before the High
 Court, cannot be considered to be a ground within
 the parameters of section 100 of the Code. In my
 considered view, this appeal is devoid of
 substantial question of law.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPELLATE SIDE, APPELLATE JURISDICTION
SECOND APPEAL NO.: 605 OF 2005

 Laxuman S/o Dadarao Bodake,

VERSUS
 Vithal S/o Dadarao Bodake,

CORAM: S. B. DESHMUKH, J.
DATED: 4th SEPTEMBER, 2008.
Citation: 2008(6)AIR Bom R581

 1.Heard learned counsel Mr. Chillarge,
 instructed by Mr. P.G.Rodage, who appears for the
 Appellants and Mr. V.D.Patnoorkar, who appears for
 the Respondent NO.1.
 2.This second appeal is filed by the
 defendant Nos.1, 4 to 6in Regular Civil Suit No.352
 of 1994. Parties to this second appeal,
 hereinafter, are referred to their status as
 plaintiff and respective defendants in the suit.
 The suit was filed on 19th September, 1994. The
 plaintiff had sought partition of agricultural land
 i.e. Survey No.114/2, admeasuring 00 Hectare 63
 Ares, Survey No.128/2, situated at village
 Kauthala, Taluka Udgir, district Latur. The trial
 Court, after hearing the parties and considering
 the evidence, adduced by the parties, decreed the
 suit with costs. It was declared that plaintiff
 and defendant No.2 have 1/3rd share, each, in the
 suit land. The defendant No.1 and defendant Nos.4
 to 6 were declared having 1/12th share in the suit
 property. This judgment and decree was passed by
 the trial Court on 29th April, 2004. This judgment
 and decree was challenged by the aggrieved
 defendant Nos.1 to 4 and 6. The defendant No.7

 accepted the verdict of the trial Court. The
 defendant No.3 Gangubai died during the pendency of
 the suit. There is no dispute regarding
 relationship between the parties.
 3.The plaintiff, in short, had pleaded in
 the suit, that Dadarao was the primogenitor of the
 parties. Gangubai was his wife. Dadarao and
 Gangubai were having three sons viz. Vithal
 (plaintiff), Laxman (defendant No.1), Bhanudas
 (defendant No.2) and a daughter Sonabai (defendant
 No.7). It is not in dispute that defendant No.4
 Dhanraj, No.5 Yuvaraj and NO.6 Mahesh are sons of
 defendant No.1 Laxman. It is alleged by the
 plaintiff that plaintiff and defendant Nos.1 and 2
 are separate in mess and residence. Defendant
 Nos.1, 4, 5 and 6 are joint. Dadarao, father of
 the plaintiff and defendant Nos.1 and 2, died
 somewhere in the year 1979. Partition regarding
 joint Hindu family properties amongst plaintiff,
 defendant No.1 and 2 had taken place during the
 life time of their father Dadarao, somewhere in the
 year 1976. Partitioned properties are ancestral
 properties; mode of partition was oral. After the
 partition, parties started separate cultivation and
 possession of their respective shares; entries
 were taken in the record of rights of the
 agricultural lands. Land to the tune of 4 Hectare

 30 Ares from survey No.13/1, 4 Hectares 29 Ares
 from Survey No.127/2 and 4 Hectare 29 Ares from
 Survey No.127/3 are the lands situated at village
 Jawalga whereas land to the tune of 2 Hectares 86
 Ares from Survey No.163/3, 00 Hectares 63 Ares from
 Survey No.128/2 and 5 Hectares 91 Ares from Survey
 No.114/2 are the lands situated at village
 Kauthala. Land Survey No.127/1, to the extent of 4
 Acres 30 Ares, and land to the tune of 00 Hectares
 95 Ares from Survey No.164/3 was allotted to the
 share of defendant No.1 Laxman. From land Survey
 No.127/3 area to the extent of 4 Hectares 59 Ares
 was allotted to defendant No.2. Thus, partition
 amongst the parties has been detailed by the
 plaintiff in the pleading. There is a dispute
 regarding allotment of land Survey No.164/3 amongst
 the parties, but, then, the said land indisputably
 is not the subject matter of the present suit. It
 is stated by the plaintiff, in the suit itself,
 that he is likely to file separate suit/ likely to
 exhaust separate remedy regarding land survey
 No.164/3. Suffice to state that land Survey
 No.164/3 is not the subject matter of the suit, not
 considered by the trial Court and the first
 Appellate Court. It is further alleged by the
 plaintiff that his father Dadarao kept 5 Hectares
 61 Ares land from Survey No.114/2 and 00 Hectare 63
 Ares land from survey No.128/2 for the livelihood

 and maintenance of Dadarao himself and defendant
 No.3 Gangabai, who at the relevant time, was alive.
 it is also alleged by the plaintiff that it was
 resolved between the parties that said land should
 be divided in between plaintiff and his brothers,
 after demise of their father Dadarao. It is
 further alleged that defendant No.1, after the
 demise of Dadarao, sought mutation entry regarding
 suit lands in his name as manager of the family.
 Plaintiff was not aware regarding certification of
 the mutation since he was incarcerated. It is also
 alleged by the plaintiff that land survey No.114/2
 with respective boundaries and land survey No.128/2
 admeasuring 00 Hectare 63 Ares with respective
 boundaries are the subject matter of the suit and
 were kept joint for the maintenance of Dadarao and
 deceased defendant No.3 Gangabai. After the demise
 of his father, plaintiff is cultivating these
 lands. Mutation entry sought by the defendant No.1
 is in the name of defendant Nos.4 to 6. Defendant
 No.1 is trying to grab the property. Plaintiff
 claims 1/3rd share in the suit properties. On 30th
 July, 1994 defendant No.1 lodged report with
 Deovani Police against the plaintiff on 18th
 August, 1994. Defendant refused to partition the
 suit lands and according to the plaintiff that was
 the cause of action for coming to the Court for
 partition by filing this suit.

 4.Defendant Nos.1, 4, 5 and 6 have filed
 their written statement Exhibit-19. According to
 them, land Survey No.164/3 is not the ancestral
 property (this land is also not the subject matter
 of the suit). Defendants have denied that land
 Survey No.114/2 and 128/2 i.e. the suit properties
 were kept for maintenance of deceased Dadarao and
 deceased defendant No.3 Gangabai. They have also
 denied the agreement that after the demise of
 Dadarao, the suit properties to be partitioned
 amongst the plaintiff and defendant Nos.1 and 2.
 It is denied by them that defendant No.1, in the
 capacity of manager of the family, got sanctioned
 mutation in the name of defendant Nos.4 to 6. It
 is pleaded by the defendants that the joint family
 of the parties was having agricultural lands and
 houses at village Dhangarwadi and Kawathala as well
 as at village Jawalga; family was owning some
 agricultural lands. Land Survey No.114/2 and 128/2
 of village Jawalga were mortgaged with money lender
 Mr. Kotalwar for Rs.10,000/-. Family was indebted
 to cooperative bank and revenue department.
 Plaintiff and defendant No.2 have refused to make
 the payment of debt of lands and had also refused
 to accept the share in the said land. The suit
 lands/ properties were thus allotted to the share
 of defendant No.1 along with other properties

 allotted to his share i.e. land survey Nos.127 and
 164/3. According to the pleading of these
 defendants, the defendant No.1 has developed the
 suit land, dug the bore wells and converted
 dry-crop land to irrigated land. The suit filed by
 the plaintiff is false. Defendant Nos. 1 to 4
 have partitioned the suit properties amongst
 themselves. According to them, there was an
 agreement between plaintiff himself and defendant
 Nos.2 and 3 that defendant No.1 should make payment
 of Rs.100/- per month for maintenance of the
 parents i.e. Dadarao and Gangabai.
 5.Defendant filed No.2 had written
 statement Exhibit-40. He had admitted the plaint,
 however, neither prayed for decree the suit nor
 prayed for dismissal. Defendant No.3 Gangabai had
 not filed written statement and subsequently died
 also during the pendency of the suit. During the
 pendency of the suit, defendant Nos.1 and 2 have
 arrived at compromise vide Exhibt-44 and have
 prayed for dismissal of the suit. The Court, at
 the relevant time, had passed an order on the terms
 of compromise Exhibit-44 that it will be taken into
 consideration at the time of the final judgment in
 the suit.
 6.The Court at the first instance,

 considering the rival pleadings, had framed about
 three issues. Issue No.1 was in respect of proof
 of the fact alleged by the plaintiff that in the
 year 1976 partition had been effected, whether the
 suit properties were kept joint or for the
 maintenance of Dadarao and defendant No.3 Gangabai.
 Obviously, burden was put on plaintiff and finding
 recorded is in favour of the plaintiff. Issue No.2
 was in respect of the entitlement of the plaintiff
 for partition and separate possession and finding
 is in favour of the plaintiff and in affirmative.
 The trial Court, considering the evidence of the
 parties, as noted above, decreed the suit with
 costs.
 7.The aggrieved defendants, as noted in
 foregoing paragraphs, filed Regular Civil Appeal
 No.33 of 2002. The first Appellate Court had
 framed points for determination. These are about
 four points for determination. Point NO.1 is in
 respect of claim of the plaintiff that suit
 properties are kept for maintenance of Dadarao and
 defendant No.3 Gangabai, the finding is in favour
 of the plaintiff. Point No.2 was in respect of
 entitlement of the plaintiff for partition and
 separate possession to the extent of 1/3rd share.
 Here, the first Appellate Court, accepting the
 entitlement of the plaintiff for partition and

 separate possession, worked out the share of the
 parties and recorded the same in his judgment. The
 first Appellate Court, in its judgment, para 8,
 initially has noted admitted facts amongst the
 parties. The most polemic issue amongst the
 parties is regarding keeping suit properties joint
 for the purpose of maintenance of deceased Dadarao
 and deceased defendant No.3 Gangabai as well as
 contention of the defendant No.1 that the suit
 properties were allotted to his share, apart from
 his regular share in joint family properties with
 the assurance of defendant No.1 that he would
 return the family debts Rs.10,000/- to Kotalwar,
 the money lender. The first Appellate Court has
 referred to the pleadings of the parties, evidence
 led by the parties and the crux of the matter as to
 whether in oral partition in the year 1976 the suit
 properties were kept joint with Dadarao for the
 maintenance of Dadarao and defendant No.3 Gangabai.
 Plaintiff himself has been examined at Exhibit-66
 in support of his case. Defendant No.1 has also
 entered into the witness box and his evidence is at
 Exhibit-94. Certified copy of the decree is
 produced on record Exhibit-109, in Misc.
 Application No.15 of 1971. The first Appellate
 Court has referred the decree of 1971 against
 Dadarao, father of the plaintiff and defendant No.1
 and 2, directing him to make the payment of amount

 of Rs.3,125/- to decree holder therein Mr. Rajaram
 Kotalwar. The first Appellate Court in para 11 has
 recorded a finding that no evidence is produced by
 the defendant No.1 that he had satisfied the said
 decree and as such it cannot be said that the
 defendant No.1 had repaid the loan of the joint
 family. Receipt produced at Exhibit-101 has been
 referred to by the first Appellate Court. One of
 the receipt pertains to land development bank. The
 receipts are of 1975. The first Appellate Court
 inferred that from these receipts it cannot be said
 that defendant No.1 repaid the same. The first
 Appellate Court has further observed that name of
 the person making repayment mentioned in the
 receipts is deceased Dadarao. The first Appellate
 Court, therefore, opined that the repayment of the
 loan to land development bank has been made by
 deceased Dadarao. The first Appellate Court
 affirmed the finding of the trial Court on this
 point. The trial Court’s finding that defendant
 No.1 failed to prove that he has repaid the alleged
 joint family debt of Rs.10,000/- has been
 confirmed/ upheld by the first Appellate Court.
 The evidence of defendant No.5 Mr. Sopan is also
 considered by the first Appellate Court. It
 appears that this witness has been examined on
 behalf of the defendants to substantiate their
 contentions regarding development of the suit

 properties by digging/ taking bore wells,
 installing electricity pump etc. The first
 Appellate Court, at the close of para 12, has
 opined that the evidence of this witness is not
 important one. Regarding partition, on behalf of
 the defendant No.1, as noted above, Mr. Sopan
 Namdeo, a witness was examined. The first
 Appellate Court opined that the evidence of this
 witness Mr. Sopan is totally against the evidence
 of defendant No.1 himself and the case presented by
 the defendant No.1 in his written statement, by way
 of pleading. Trial Court has discarded the
 evidence of this witness and the first Appellate
 Court on reappreciation of evidence put a seal of
 affirmation on the finding of the trial Court. The
 first Appellate Court has considered the pleadings
 and deposition of defendant No.1 himself and his
 witnesses regarding partition of 1976 effected by
 deceased Dadarao. The first Appellate Court has
 collated the evidence of defendant No.1 himself and
 his witnesses on the point of partition. The first
 Appellate Court on appreciation of the evidence
 recorded a finding that witness Sopan does not know
 anything about the partition and his evidence is
 not useful to the defendant No.1. The first
 Appellate Court, at the close of para 13, observed
 that except the oral evidence of defendant No.1
 himself, nothing is brought on record to show that

 the suit properties are given to the share of
 defendant No.1 in lieu of amount of debt of the
 joint Hindu family. In para 14 of the judgment,
 the first Appellate Court has considered the
 mutation entry No.562 and 668 Exhibit-48 and 49.
 The first Appellate Court, thereafter, in para 16
 of the judgment, has considered the principles of
 Hindu law and provisions of Hindu Succession Act of
 1956. Since Gangabai died during the pendency of
 the suit, and since terms Exhibit-44 is on record,
 the first Appellate Court has justifiably observed
 that said terms is between defendant No.1 and
 defendant No.2. The logical inference has been
 drawn by the first Appellate Court that, at the
 most defendant No.2 can be said to be bound down by
 the said terms and not the plaintiff. The first
 Appellate Court has thus confirmed the judgment of
 the trial Court.
 8.The learned counsel for the Appellant has
 invited my attention to the memo of second appeal.
 According to him, ground Nos.IV, VI and IX, which
 are reproduced herein below, involve substantial
 question of law:
 "IV) Whether it is correct to hod that,
 inspite of the specific pleading of
 the appellant No.1 in it’s written

 statement regarding the mode of
 acquisition of suit lands in his
 favour even then the Court’s below
 did not frame the issues which
 resulted into the miscarriage of
 justice.
 IV)The Court’s below did not carve out
 the shares of the parties.
 IX)The Court below did not consider the
 effect of compromise between the
 defendant No.1 and 2."
 9.I have given my thoughtful consideration
 to the submissions of the learned counsel for the
 Appellants as well as Respondent. Ground No.4 is
 regarding the case of defendant No.1 that suit
 properties were allotted to his share since he had
 undertaken or assured to repay the joint family
 loan. It is a question of fact, which has been
 answered by the trial Court and on reappreciation
 of the evidence, the first Appellate Court has
 concurred with the said question of fact. Ground
 No.VI pertains to working out shares of the
 parties. Here, in the case on hand, death of
 Dadarao in the 1979 is not in dispute. Courts have
 recorded a finding regarding oral partition and

 allotment of the suit properties for maintenance to
 Dadarao and deceased defendant No.3 Gangabai.
 Working out share of the parties is a matter of
 section 6 i.e. notional partition, section 8 and
 section 16 in the facts and circumstances of the
 present case. In my view, the first Appellate
 Court, considering the subsequent events and
 provisions of the Hindu Succession Act has legally
 and justifiably worked out the share. This cannot
 be said to be a substantial question of law, in the
 facts and circumstances of the case. Ground No.IX
 is regarding alleged compromise between defendant
 Nos.1 and 2 Exhibit-44. I have referred to in
 foregoing paragraphs of this order, the finding of
 the trial Court as well as the first Appellate
 Court. There was no decree passed by the any of
 the Court in terms of compromise; it was taken by
 the trial Court on record with further order that
 it will consider the same at the time of final
 judgment of the suit. The first Appellate Court
 has also referred to the compromise and observed
 that consequence is only upon defendant No.2 since
 said terms was between defendant Nos.1 and 2.
 Plaintiff has been justifiably exonerated by the
 Courts below.
 10.The learned counsel for the Appellant,
 during the course of submissions, submitted that

 oral partition is largely admitted by the parties
 in the year 1976 regarding joint family properties.
 According to the learned counsel for the Appellant,
 in this premise, the subsequent suit for partition,
 that too on 19th September, 1994 is not
 maintainable. Pleading of the parties in a civil
 suit is significant and important. It is
 foundation of the stance taken by the parties in
 civil Suit. Order VI Rule 1 provides that plaint
 is a pleading of the plaintiff and written
 statement is pleading of the defendant. Parties
 have to lead their evidence according to their
 pleading. Especially, oral evidence cannot be, in
 the absence of pleading, as has been provided under
 Order VI Rule 2 of the Code. Oral evidence in the
 absence of pleadings, has to be ignored. The
 Supreme Court has time and again recognised the
 importance of the pleading. Recent judgment of the
 Supreme Court in the matter of "State Bank of India
V/s S. N. Goyal" reported in 2008 AIR SCW 4355
 may be usefully referred to. In the case on hand,
 copy of the written statement is not available,
 either with the learned counsel appearing for the
 Appellant or for the Respondent. However, pleading
 of the parties have been set out in nutshell by the
 Courts below in their judgments. From the
 judgments, it appears that such pleading was not
 raised by the defendants in their written statement

 itself. Consequently, there was no issue and no
 finding of the trial Court, no point for
 determination and no finding of the first Appellate
 Court. Such new plea, raised before the High
 Court, cannot be considered to be a ground within
 the parameters of section 100 of the Code. In my
 considered view, this appeal is devoid of
 substantial question of law.
 11. The second appeal stands dismissed with no
 orders as to costs.
[S.B. DESHMUKH, J.]
 Dated:04.09.2008


Print Page

No comments:

Post a Comment