Haribai Vikram Mane.. RespondentsMr. S. S.Bora, Advocate for the v. C.Solshe

Legal Reasoning

- 1 -sa467.93.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 467 OF 1993 Mohanilal Bansilal Soni(Deceased through LRs)1AShriniwas Mohanlal Soniage 51 years, occ. Businessr/o 2nd Cross Cloth LaneTq. & Dist. Latur.1BSmt. Ramkuwar w/o Mohanlal Soniage 80 years, occ. Householdr/o 2nd Cross Cloth Lane,Latur, Tq. & Dist. Latur.1CSmt. Kantadevi w/o Kisanlal Bangage 60 years, occ. Householdr/o Vidyanagar, Parali VaijanathTq. Parali (V), Dist. Beed... AppellantsVersusSitaram Daji Rankhamb(Deceased through LRs)1.Shrirang Sitaram Rankhamb(Deceased through LRs)1AJamuna Shrirang Rankhambage 60 years, occ. Household1BVyankat Shrirang Rankhambage 52 years, occ. Agriculture1CNilkant Shrirang Rankhambage 49 years, occ. Agriculture1DSanjay Shrirang Rankhambage 27 years, occ. Agriculture - 2 -sa467.93.odt1ESunita Shrirang Rankhambage 30 years, occ. Household1FRekha Shrirang Rankhambage 27 years, occ. HouseholdAll r/o KhulgapurAt Post Kasar KhedaTq. & Dist. Latur.2.Bajrang Sitaram Rankhamb(Deceased through LRs)2AShashikala Bajrang Rankham}Abated vide orderdated 09.03.20162BChandrashekhar Bajrang Rankhambage 42 years, occ. Agriculture2CRajesaheb Bajrang Rankhamb}Abated vide order}dated 09.03.20162DAnant bajrang Rankhamb }Both r/o KhulgapurAt post Kasar KhedaTq. & Dist. Latur2ESau Mangal Shrimant Boradeage 42 years, occ. Householdr/o Kargaon, Post KargaonTq. & Dist. Latur2FSau. Laxmi Balasaheb Kadamage 38 years, occ. Householdr/o Dhanori Post DhanoriTq. & Dist. Latur.3.Kakasaheb Sitaram Rankhamb4.Pilubai w/o Sitaram Rankhamb(Deceased through LRs) - 3 -sa467.93.odt5.Haribai Vikram Mane.. RespondentsMr. S. S.Bora, Advocate for the appellant.Mr. V. C.Solshe, Advocate for respondents No. 1B to 1F , 2B to 2F.CORAM : R. M. JOSHI, J. RESERVED ON : 15th JANUARY, 2024. PRONOUNCED ON : 24th JANUARY, 2024.JUDGMENT : 1.This appeal filed under Section 100 of Code of Civil Proceduretakes exception to the judgment and decree passed by the First AppellateCourt in Regular Civil Appeal No. 68/1990 dated 3rd December, 1993reversing the findings recorded by the Trial Court in Regular Civil Suit No.430/1981.2.Parties are referred to by their nominclature in the originalproceeding for the sake of convenience.3.By order dated 15th December, 1993, appeal came to beadmitted on the grounds No. 3, 5, 7 and 10. The facts which led to filing ofthe present appeal can be narrated in short as under :-Land Survey No. 17 admeasuring 28 Acres 23 Are was originallyowned by Badrinarayan Rathi. Plaintiff purchased half western side portion - 4 -sa467.93.odtadmeasuring 14 Acres and 14 Are by registered sale-deed dated 29th August,1953 and he was put in possession of the said premises by the owner. In theyear 1966, vide registered sale-deed dated 11th May, 1966, defendantpurchased remaining half eastern side portion of the said land admeasuirng14 Acres 12 Are. Admittedly, both portions of the land purchased by plaintiffand defendant are adjacent to each other. In the year 1968, defendant triedto encroach upon some portion of survey no. 17A from eastern side. Plaintiffgot the land measured and filed suit bearing Regular Civil Suit No. 312/1968seeking possession of the encroached portion of his land from defendant. Inthe said suit, encroachment was not proved hence it came to be dismissed soalso appeal filed against it. It is claimed that after dismissal of said suitplaintiff and defendants are in possession of their respective portion of land.It is specifically averred in the plaint that in 1973-1974, measurements werecarried out under the scheme of Prevention of Fragmentation andConsolidation Act and it was found that both plaintiff and defendant are inpossession land equally. Hence, the authority concerned, recorded 8 annashare (half share) to the ownership of each side. It is alleged that in 1976-1977, defendant again encroached upon the eastern side portion to the extentof 1 Acre 12 Are and since then, he is in illegal possession thereof. Since therequest made by plaintiff for repossession was refused by defendant and asdefendant had no right to retain possession thereof, present suit came to be - 5 -sa467.93.odtfiled. The cause of action disclosed in the plaint for filing of the suit occurredon 15th May, 1981, when defendant refused to vacate 1 Acre 12 Are land.4.Defendant filed written statement and admitted ownership ofplaintiff in respect of land purchased by him but disputed the area purchased.Defendant claimed to have purchased eastern side portion of Survey no. 17 inthe year 1966. A reference is also made to Regular Civil Suit No. 312/1968filed by plaintiff against defendant alleging encroachment in land Survey No.17A. According to defendant, the said suit was dismissed on 9th October,1970. Defendant has also claimed title in the suit property by adversepossession.5.Issues were framed at Exhibit 17 and burden was cast upon theplaintiff to prove that he is owner of suit land and that defendant hasencroached upon the land admeasuring 1 Acre 12 Are and mesne profit.Plaintiff, without raising any objection of whatsoever nature in respect of theissues framed, went on with the trial. Plaintiff examined his son Shrirang atExhibit 40 as his constituted attorney. Defendant stepped into the witnessbox and also examined Dilip Kulkarni, Court Commissioner at Exhibit 70.Court Commissioner was examined for the purpose of ascertaining situationat the spot. However, admittedly, no measurement of land was - 6 -sa467.93.odtsought either before the Trial Court or the First Appellate court. No suchapplication is sought to be moved in this appeal too.6.Learned counsel for defendant submits that the suit filed byplaintiff is for the encroachment of suit land by defendant in the year 1976-1977 and refusal of defendant to return said land in favour of plaintiff on 15thMay, 1981 is said to be cause of action for filing suit. It is his contention thatnowhere in the plaint the plaintiff is seeking possession of the suit propertyon the basis of his title in the suit property which was never in question. It issubmitted that the Trial Court has rightly appreciated evidence on record inorder to hold that the plaintiff has failed to prove encroachment made bydefendant on the suit property and accordingly dismissed the suit. It issubmitted that the First Appellate Court has committed error in decreeing thesuit on the premise that the case of plaintiff is based upon title and not onencroachment made by defendant over the suit property without appreciatingcase of plaintiff correctly. This, according to him, is not permissible. In orderto support his submissions, he placed reliance on the case of Bachhaji Naharvs. Nilima Mandal and others, AIR 2009 SC 1103. According to him, in thesaid case, it is held that when neither party puts forth contention, then Courtcannot obviously make out such a case not pleaded. - 7 -sa467.93.odt7.Learned counsel for plaintiff opposed the said submission bydrawing attention of the Court to the written statement wherein thedefendant has admitted ownership of plaintiff over the land pursuant to theregistered sale-deed executed in his favour by erstwhile owner. He furthersubmits that the defendant in the previous suit has given candid admission tothe effect that if he finds land in excess of his possession pursuant to the saledeed, he is ready to return the same to the plaintiff. It is submitted that sinceplaintiff has proved his title over the suit land, it was incumbent on the partof the Court to direct defendant to vacate the same. Thus, according to him,there is no error committed by the First Appellate court in reversing thefindings recorded by the Trial Court.8.Substantial questions of law in this appeal and findings recordedthereon are as follows :i)Whether the First Appellate Court has failed to consider the fact thatplaintiff has failed to establish encroachment and consequently his possessionand in such circumstances, order of decreeing the suit is not justified ?Answer : Yes - 8 -sa467.93.odtii)Whether the First Appellate Court has traveled beyond the pleadings ofplaintiff and has accepted the case of plaintiff which was never made out inthe plaint ?Answer : Yesiii)Whether the plaintiff would be entitled for decree of possession of suitland if he has failed to establish the alleged encroachment anddispossession ?Answer : Noiv)Whether the plaintiff has substantiated the cause of action ?Answer : No9.It is settled law that the Court has to consider the entirepleadings of the parties in order to ascertain the case sought to be made outby them before the Court. Perusal of the plaint clearly shows that it was aspecific case of plaintiff before the Trial Court that initially before 1968,defendant encroached upon 1 Acre 12 Are land belonging to plaintiff andhence suit was filed for removal of encroachment bearing Regular Civil SuitNo. 312/1968. In the present plaint, it is vaguely stated that thereafterplaintiff and defendants are in possession of their respective portion of land.But there is no specific pleading about plaintiff regaining possession of theland allegedly encroached upon earlier by defendant, in respect of whichprevious suit was filed. It is however alleged that thereafter in 1976-1977, - 9 -sa467.93.odtdefendant again encroached upon the eastern portion of the land illegallywhich admeasures same i.e. 1Acre 12 Ares as it was covered by previous suit.The cause of action for filing of the suit is also candidly stated to be 15th May1981 when defendant refused to concede with the request of plaintiff forreturn of the said land. Possession of the suit land is sought on specificground of encroachment done by defendant over the suit land in the year1976-1977 and removal thereof as asked for. Perusal of pleadings in theplaint as a whole clearly show that the suit is filed on allegation ofencroachment on land of plaintiff and not on title. 10.In the light of aforesaid pleadings, if the evidence on record isconsidered, then testimony of son of plaintiff shows that he claims to haveregained the possession of the suit land from defendant forcibly. Thisevidence sought to be led is beyond pleadings of plaintiff. Moreover, there isnothing on record to show that any such possession of land was reallyregained. This witness has claimed presence of his servant at the relevanttime, however, the said person is not examined in order to prove the said fact.On the contrary, this witness goes on to admit that while filing suit noinstructions were given to his advocate to the extent that the suit land wasrepossessed forcibly by plaintiff. The evidence of plaintiff’s witness createsserious doubt about his claim of repossession of the suit land from defendant - 10 -sa467.93.odtand further encroachment thereupon in the year 1976-1977 by defendant.Since plaintiff has filed a suit for possession on the ground of encroachmentand removal thereof, the initial burden is on the plaintiff to prove thatdefendant has encroached upon suit land as claimed in the plaint, which hehas failed to discharge.11.On the other hand, defendant has specifically pleaded in thewritten statement about existence of a common bandh dividing two parts ofsame land and the said position exists since 7th May, 1964. He furtherspecifically claimed that there is no change in bandh since then. Defendantexamined himself at Exhibit 56 and apart from other contentions, hespecifically deposed about existence of bandh dividing wo fields belonging toplaintiff and defendant. His testimony gets further corroboration from theevidence of the Court Commissioner, DW 2 Advocate Kulkarni (Exhibit 70). 12.Evidence of Court Commissioner Advocate Dilip Kulkarni showsthat he was appointed as Court Commissioner to ascertain position at spot.He visited the land in question and carried out inspection in presence of bothsides. He submitted report (Exhibit 71) and map (Exhibit 72). From hisreport, it is clear that the land bearing Survey No 17 shows a bandh inbetween the lands of plaintiff and defendant. Though bandh is notcontinuous and is found absent at some places, but from map it is clear that - 11 -sa467.93.odtthe bandh exists dividing the suit lands into two parts i.e. eastern side andwestern side thereof. Even, plaintiff’s witness in his cross-examination hasgiven candid admission about defendant not having put up any new boundarybetween the two fields. Though this witness claimed abut there being noexistence of any boundary in between the two fields, however, evidence ofCourt Commissioner clearly proves that the two fields are divided by acommon bandh though interrupted in between. In the light of this evidence,if the case of defendant is considered, then he claims that he was put inpossession of land towards eastern side after its purchase in the year 1966.Since plaintiff did not come with a case of possession on the basis of title, itwas not necessary for the defendant to prove his sale-deed in order to rebutthe case of plaintiff. The evidence led by defendant clearly shows that thereis specific demarcation between two lands and that the possession of partiesto either side of bandh is seen.13.Pertinently, plaintiff in the year 1966 has claimed that defendantencroached upon his land to the extent of 1 Acre 12 Are. Though in theplaint it is not contended specifically that the land was repossessed, however,plaintiff’s witness tried to improve the case to that effect, which isimpermissible in law, as evidence sans pleading needs to be kept out ofconsideration. The allegations in the plaint specifically state about defendant - 12 -sa467.93.odtagain encroaching upon the same portion of land in the year 1976-1977, butthere is no evidence to prove this case of plaintiff. On the basis of evidenceon record, said findings of the Trial Court are not perverse. Even FirstAppellate Court has not reversed the said finding and has not recorded anyfinding to the effect that in the year 1976-1977 encroachment was done bydefendant on the suit land. The First Appellate Court however, proceeded onthe basis that plaintiff has proved his title in respect of the land admeasuring14 Acre 14 Are on the basis of registered sale-deed dated 29th August, 1953.Such finding would have been permissible provided the plaintiff has come outwith a case seeking possession of the suit property on the basis of his title.Perusal of plaint as well as evidence sought to be led by plaintiffunambiguously show that case sought to be made out by plaintiff was aboutencroachment and removal thereof. It is needless to emphasis the importanceof pleadings in the plaint as the same would accord an opportunity to thedefendant to defend his case effectively. Though some concession can begiven for the purpose of interpretation of the averments in the plaint,however, if its reading as a whole indicates the case being sought to be madeof encroachment and removal thereof, it is not open for the Court to assumethat the case on the basis of title when no such case is made out to that effect. - 13 -sa467.93.odt14.The Ho’ble Apex Court in the case of Bachhaji Nahar (supra)has squarely dealt with this issue in paragraph No. 11 as observed thus:-11.……. The principle was reiterated by this Court in RamSarup Gupta (dead) by LRs. v. Bishun Narain Inter CollegeMANU/SC/0043/1987 : (1987)2 SCR 805 :It is well settled that in the absence of pleading, evidence,if any, produced by the parties cannot be considered. It is alsoequally settled that no party should be permitted to travelbeyond its pleading and that all necessary and material factsshould be pleaded by the party in support of the case set up byit. The object and purpose of pleading is to enable the adversaryparty to know the case it has to meet. In order to have a fairtrial it is imperative that the party should state the essentialmaterial facts so that other party may not be taken by surprise. The Hon’ble Apex Court has dealt with the facts of the case inparagraph No. 13 of the judgment which read thus:-13.A perusal of the plaint clearly shows that entire case ofthe plaintiffs was that they were the owners of the suit propertyand that the first defendant had encroached upon it. Theplaintiffs had not pleaded, even as an alternative case, that theywere entitled to an easementary right of passage over theschedule property. The facts to be pleaded and proved forestablishing title are different from the facts that are to bepleaded and proved for making out an easementary right. A suit - 14 -sa467.93.odtfor declaration of title and possession relates to the existenceand establishment of natural rights which inhere in a person byvirtue of his ownership of a property. On the other hand, a suitfor enforcement of an easementary right, relates to a rightpossessed by a dominant owner/occupier over a property not hisown, having the effect of restricting the natural rights of theowner/occupier of such property.Finally, it is held that a Court cannot make out a case notpleaded. The court should confine its decision to the question raised inpleadings. Nor can it grant a relief which is not claimed and which does notflow from the facts and the cause of action alleged in the plaint.15.In the light of aforesaid position of law, if the plaintiff has notcome out with a case for possession of disputed land on the basis of title, thedefendant is denied opportunity to defend such plea. A party cannot be takenby surprise which disentitles him to defend himself effectively. Had it beenthe case of suit for possession on the basis of title, the defendant would havesubstantiated his claim by taking appropriate defence. It therefore needs tobe held that the plaintiff has filed suit for possession on the basis of allegedencroachment being done by defendant over the disputed land and plaintiffhaving failed to prove the same the suit must fail and First Appellate Courtcommitted error in considering the case of plaintiff on title than for - 15 -sa467.93.odtencroachment. Resultantly, substantial questions of law deserve to be decidedagainst plaintiff as recorded above.16.In view of above discussion, appellant has made out a case forcausing interference in the impugned judgment and decree passed by theFirst Appellate Court. It being perverse in ignorance of the pleadings andevidence on record and against settled position of law, it deserves to be setaside. The judgment and decree passed by Trial Court in Regular Civil SuitNo. 430/1981 stands restored. In the result, the appeal stands allowed withcost. ( R. M. JOSHI) Judge dyb