In the present case, the plaintiff as well as the contesting defendant both alleging independent right, title and interest over the disputed plot, it was not for the court of appeal below to make out a new case for the parties and to hold that the plaintiff and the contesting defendants were entitled to half and half and that they were in joint possession The court cannot make out a new case for a party. It is true that the courts are bound to take into consideration all the rights of the parties to the suit, both legal and equitable, and give effect thereto by their decrees as far as possible but the courts are not at liberty to grant a relief either not sought for in the plaint or that does not naturally flow from the grounds of claim as stated in the plaint.
Patna High Court
Gobind Prasad Sinha vs Mst. Kulwanti And Ors. on 15 March, 1984
Equivalent citations: AIR 1985 Pat 31
Bench: A K Sinha
1. This second appeal is by the plaintiff against the judgment of modification.
2. The plaintiff brought a suit for declaration of title and for confirmation, of possession and in the alternative for recovery of possession in respect of 71 decimals of land, being plot No. 2488, appertaining to Khata No. 60, of village Anaith in the district of Shahabad.
3. The trial Court decreed the suit and declared the title of the plaintiff over the suit land and confirmed the plaintiffs possession over the same. Thereafter, the contesting defendants preferred an appeal and the lower appellate Court, though confirmed the findings of the trial Court, yet declared that the disputed plot jointly belonged to the contesting defendants (appellants in the lower appellate Court) and the plaintiff (respondent in the lower appellate Court) and that they were entitled to joint possession over the same. The lower appellate Court further declared that the defendants 1 and 2 (the appellants before the lower appellate Court) had half share in the disputed plot and the remaining half belonged to the plaintiff. Thus the plaintiff has filed the present second appeal.
4. The learned counsel appearing for the plaintiff-appellant has advanced only one submission and that is to the effect that the judgment and decree under appeal, being against the pleadings of the parties, are not in accordance with law and it was completely beyond the jurisdiction of the lower appellate Court to make out a new case for the party which was never pleaded.
5. In order to appreciate the short submission advanced by the learned counsel for the plaintiff-appellant it is pertinent to state a few fact.
6. The plaintiff's case was that the lands appertaining to C. S. Khata No. 60 of village Anaith, originally belonged to one Rajaram Mahlo but it was wrongly recorded in the name of Jaikishun Mahto. According to the plaintiff, after the death of Rajaram Mahto. Baijnath Mahto filed Title Suit No. 90 of 1910 for a declaration that the lands under khata No. 60 belonged to Rajaram Mahto and after his death he (Baijnath Mahto) was the owner of entire lands of khata No. 60, being the sole heir of Rajaram Mahto. The title suit was decreed and the judgment and decree passed in the suit were also confirmed in appeal (in Appeal No. 278 of 1911). Thereafter, Baijnath Mahto got delivery of possession over all the lands of Khata No. 60 and since then he remained in possession over the same. The plaintiffs further case was that 36 years ago Baijnath Mahto died in the state of jointness with his two sons Imrit Mahto and Ganesh Mahto, who according to the plaintiff, came in possession over the entire lands of khata No. 60. Some time after Imrit Mahto died issueless and hence Ganesh Mahto alone remained in possession over the entire lands of Khata No. 60.
7. The plaintiffs further case was that on 5-11-1944 the aforesaid Ganesh Mahlo sold the disputed plot, along with the other lands, to Thakur Prasad, the plaintiffs father, for a consideration of Rs. 1500/- by a registered sale-deed and put him in possession thereafter.
8. It would be pertinent to mention here that the present suit out of which the present second appeal arises was filed by Thakur Prasad and Shri Govind Prasad Sinha (the present appellant). Thakur Prasad died during the pendency of the suit and his name was expunged from the record and the present plaintiff remained the sole plaintiff in the suit.
9. The plaintiffs case was that since the date of purchase his father Thakur Prasad and himself all along remained in possession of the disputed plot on payment of rent regularly. The plaintiffs further case was that the disputed land was originally an orchard but about six to seven years prior to the institution of the suit the plaintiffs father cut away the trees and sold them. The plaintiffs further case was that eight years prior to the filing of the suit plaintiffs father had manufactured bricks in the suit plot and used the said bricks in the construction of his house. The plaintiff further pleaded that after cutting away the trees the disputed land remained parti and the ridges did not exist at the spot and, accordingly, the present plaintiff and his father had filed a demarcation case in which the defendants 1 and 2 appeared and illegally claimed the disputed lands to be theirs. The plaintiff pleaded that the defendants 1 and 2 had no title over it nor possession over the same. The demarcation case was dismissed and the defendants 1 and 2 started interfering with the possession of the plaintiff over the disputed land which cast a cloud upon the title of the plaintiff which necessitated the filing of the present suit.
10. It was only defendant No. 1, who appeared in the suit and filed the written statement and contested the suit. He denied the plaintiffs title and possession as well as the title and possession of the plaintiffs father. The defence was that the registered sale-deed executed by Ganesh Mahto in favour of the plaintiffs father was a fraudulent one and without consideration and hence no title was acquired by the plaintiffs father on the basis of the same. The defendants pleaded that the sale-deed was not binding upon the defendant.
11. The defendant further pleaded that his father and "Baijnath Mahto were joint and in the capacity of being the karta of the joint family Baijnath Mahto had filed the Title Suit No. 90 of 1910, in respect of the lands under khata No. 60, which was decreed in his favour and he along with the father of this defendant, came in possession over the lands under the said khata.
12. The main defence was that in 1920, there was a partition between Baijnath Mahto and the father of this defendant and other members of the family in respect of all ancestral lands, including the lands of Khata No. 60, in which the lands mentioned in Sch. 'A' of the written statement (which included the disputed plot No. 2488) fell to the share of the lather of this defendant and the lands mentioned in Schedule B of the written statement fell to the snare of Baijnath Mahto and according to this defendant the parties came in exclusive possession of the lands allotted to their respective shares. The defendants' case was that since then the father of this defendant 1 had been coming in possession over the disputed plot and after his death defendants 1 and 2 have been coming in possession over the same on payment of rent. The other pleas taken by the defendant are not necessary to be stated.
13. Thus from the pleadings it is obvious that it was nobody's case that the disputed plot jointly belonged to the defendants and the plaintiff and that they were entitled to joint possession. It was also nobody's case that the half share in the disputed plot belonged to the defendants 1 and 2 and half share belonged to the plaintiff. Both the parties claimed their independent title and possession over the entire disputed plot. The trial Court having held the registered sale-deed in favour of the plaintiff to be genuine and for consideration, decreed the plaintiff's suit in full. The contesting defendants never pleaded that they had joint possession over the disputed plot with the plaintiff, rather, claimed exclusive title by virtue of partition in 1920 and also exclusive possession over the disputed plots since thereafter. The trial Court held as follows : --
(i) The title suit No. 90 of 1910 brought in respect of lands of khata No. 60 was decreed exclusively in favour of Baijnath Mahto and he alone got the delivery of possession over all the lands under the said khata including the disputed land;
(ii) The defendant has not been able to discharge the onus which was upon him to prove that the partition as alleged in para. 20 of the written statement in fact took place and that in course of the said partition his father Deochand Mahto got the disputed plot in his share;
(iii) Ext. 2(a) was a genuine document executed for consideration and the father of the plaintiff came in possession over all the lands, including the disputed land, which were conveyed to him through the said sale deed and that the plaintiffs father and after his death the present plaintiff got a good title and interest in the disputed plot on the basis of Ext. 2(a);
(iv) Plaintiff had subsisting title over the suit land and was entitled for confirmation of possession.
14. The lower appellate Court affirmed the findings of the trial Court and held as follows : --
(i) Title Suit No. 90/1910 was decreed exclusively in favour of Baijnath Mahto alone and he alone had got the delivery of possession overall the lands under the said khata including the disputed land;
(ii) The case of the defendants 1 and 2 that after the delivery of possession in execution of the decree passed in Title Suit No. 90 of 1910, the lands of khata No. 60 were thrown by Baijnath Mahto in hotch potch of the joint family consisting of himself, Deochand Mahto and others appeared to be correct.
(iii) The case of the defendants that Baijnath Mahto and Deochand Mahto were co-sharers in respect of the lands of khata No. 60, each of them having equal share, was correct;
(iv) The defendant's case of partition as alleged by the defendant and that the suit plot fell to the share of Deochand Mahto and that Deochand Mahto alone came in possession over the same was not correct;
(v) The disputed plot jointly belonged to Deochand Mahto and Baijnath Mahto.
(vi) The plaintiffs sale deed was genuine and for consideration and the same was acted upon (the lower appellate Court affirmed this finding of the trial Court);
(vii) One co-sharer's possession will be the possession of the other co-sharer;
(viii) The plaintiff's father acquired the interest of Ganesh Mahto only in respect of the disputed plot which was only half and hence the plaintiff was entitled to possess the suit plot jointly with defendants 1 and 2;
(ix) Defendants 1 and 2 had half share in the disputed plot and the remaining half belonged to the plaintiff.
15. For appreciating the short point taken by the learned counsel for the plaintiff-appellant it is pertinent to quote the relief asked for by the plaintiff. The relevant reliefs are reliefs Nos. 1 arid 2, which are as follows :
"1.Aubal Ye Key Hasab Halat Sadar Yeh Tajbij Kar Diya Jaye Ki Sai Mudkhaha Eraji Kharidgi Man Mudaiyan Ki Hai Wo Dakhal Kabja Me Man Mudaiyan Ke Chala Aa Raha Hai Wo Mudabar Ka Man Mudaiyan Ke Dakhal Kabja Me Chher Chhar Karma Bilkul Fail Najaij Bela Edami Is Takhak Ke Hai. Dakhal Kabja Man Mudai Sat Mudataya Par Mustahkam Kar Diya Jaway Aur Agar Bedakhali Jahur Me Aaway to Dakhal Dilaba Diya Jaway.
2. Dayam Yeh Ke Batainati Commissioner Khesra 2488 Takrari Ko Demarcate Kara Diya Jaye".
It is also pertinent to quote the relevant paragraphs of the written statement, namely, paragraphs 18, 19, 20, 21 and 35 which are as follows :
"18. Beyanat Munderje Dafa Number 4 Arjidawi Is Radar Sahi Hai Ke Bajnath Mahto Kita Mokadma Numbari Yane Mokadma Number 90 Sun 1910Numberi Bijlas Sub Judge Arrah Nisbat Khata Number 60 Ke Dakhil Kiya Wo Digree Bahak Baijnath Mahto Ke Sadir Paie Wo Faisla Majkur Appeal Se Bhi Bahal Wo Barkarar Raha;
19. Pedar Man Mudaleh Wo Man Mudaleha Wo Be radar Man Mudaleha Babakhta Dauran Mokadma Mutjiarey Sadar Apas Me Bahar Shurat Ijamal Wo Hamtam The Wo Baijnath Mahto Afsar Wo Kara Khanda Ijmaili Ke The Wo Bahiesivat Afsar Wo Karta Khandan Ijmaili Ke Mokadma Numberi Majkoor Ko Doran Kiya Wo Dicree Hasil Ki. Bar Sudar Decree Mutjikare Sadar Pedar Man Mudaleha Wo Man Mudaleha Bairadar Man Mudaleha Who Bhi Baijnath Mahto Kul Jaidad Maurisi Par Basmul Khata number 60 Par Bahaisiat Membran Khandan Ijmaili Ejmali Ke Kabil Dalil Rahe Wo Chale Aaye;
20. Chand Sal Bad Decree Bamokadma Numbari Majkoor Yane Dar San 1920 E. Pedar Man Mudaleha Wo Baijnath Mahto Wo Bhi Digar Membran Aapas Me Elahde Ho Gaye Wo Kul Jaidad Maurusi Wo Bhi Khata Number 60 Wo Digar Jaidad Baijnath Mahto Ko Bakhudah Taksim Kar Liya Wo Barue Batbara Mausalam Eraji Takrari Basmul Digar Eraji Aat Khas Hise Me Paidar Man Mudaleha Ko Mila Jis Par Paidar Man Mudaleh, Man Mudaleha Wo Baradar Man Mudaleha Elahadae Kabij Dakhl Huaie, Wo Chale Aaye Sharihatan Tasrih Eraji Aat Taksim Shuda Paidar Man Mudaleha Sehedule-A Me Diya Jata Hai
21. Jis Kadar Jaydad Karue Batbara Mutjikare Sadar Baijanth Mahto Wo Pesran Baijnath Mahto Miia Uski Tafsis Schedule -- B Me Diya Jata Hai; and 35. Beyan Mudaian Munderje Dafa Number 11 Ta 13 Araji Dabi Sarasar Galat We Jhuth Wo Banabati Hai. Man Mudaleh Eraji Takrari Par Aj Bakhat Pedar Ke Exclusively Kabij Dhakil Chale Aate Hai Wo Alabey Hakiyat Majkur Ke Man Mudaleh Ko Andar Eraji Takrari Kakiyat Bajariye Dakhal Mokhalifana Ke Bhi Hasil Ho Gaya Hai".
16. In the present case, the plaintiff as well as the contesting defendant both alleging independent right, title and interest over the disputed plot, it was not for the court of appeal below to make out a new case for the parties and to hold that the plaintiff and the contesting defendants were entitled to half and half and that they were in joint possession The court cannot make out a new case for a party. It is true that the courts are bound to take into consideration all the rights of the parties to the suit, both legal and equitable, and give effect thereto by their decrees as far as possible but the courts are not at liberty to grant a relief either not sought for in the plaint or that does not naturally flow from the grounds of claim as stated in the plaint.
17. Thus the learned counsel for the plaintiff-appellant has very rightly submitted that the findings of the lower appellate court to the effect that the plaintiff and the contesting defendants were in joint possession of the disputed plot and that they were entitled to half and half are not binding in second appeal, as it was nobody's case.
18. In the result the appeal succeeds. The judgment and decree of the lower appellate court are set aside and the case is sent back to the lower appellate court for fresh decision, after hearing the parties, on the materials already on the record and in accordance with law.
19. However, in the circumstances of the case, there shall be no order as to costs.