Full Judgment Text
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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.5798-5799 OF 2008
(Arising out of SLP © Nos.23766-67 of 2005)
Bachhaj Nahar … Appellant
Vs.
Nilima Mandal & Anr. … Respondents
O R D E R
R. V. Raveendran J.
Leave granted. Heard the learned counsel. For
convenience, the parties will be referred to also by their
ranks in the suit.
The facts
2. Respondents 1 and 2 (plaintiffs) filed a suit for
declaration, possession and injunction (Title suit
no.133/1982 on the file of Sadar Munsiff, Purnia) against
the appellant (first defendant) and Sujash Kumar Ghosh
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(second defendant) in regard to the suit property. The suit
property is a strip of land measuring East to West : 72
feet and North to South : 1’3” on the Western side and 10”
on the Eastern side described in Schedule ‘B’ to the
plaint. Plaintiffs claimed that the suit property was a
part of the ‘A’ schedule property purchased by them under
sale deed dated 29.12.1962. The reliefs sought in the said
suit were :
(i) declarations that (a) the plaintiffs are the absolute
owners in possession of the suit property; (b) the
defendants do not have any right, title or interest or
possession in respect of suit property; and (c) the first
defendant had illegally encroached and started construction
in the suit property;
(ii) a direction to first defendant to deliver possession
of the suit property to plaintiffs after demolishing the
construction over the same; and
(iii) a permanent injunction restraining first defendant
from interfering with the suit property.
3. The first defendant resisted the suit contending that
he had purchased the property to the South of plaintiff’s
property from second defendant under sale deed dated
5.5.1982 and the suit property actually formed part of his
property. He contended that the plaintiffs had no right,
title or interest in the suit property.
4. The trial court framed the following issues :
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(i) Is the suit as framed maintainable?
(ii) Have the plaintiffs got any cause of action to
file the suit as against these defendants?
(iii) Is the suit barred by limitation and also on the
principle of waiver estoppel and acquiescence?
(iv) Whether the description of the suit land is vague?
(v)
Whether the suit land is part and parcel of land
of the plaintiff purchased through registered
kewala or the suit land in exclusive possession
of Ishan Chand Ghosh, and after his death of
second defendant, and after purchase of first
defendant.
(vi) Has first defendant encroached any portion of the
suit land?
(vii) Whether the plaintiffs got title over the suit
land? Or were they using the suit land under
express permission of the late Ishan Chand Ghosh
and his son?
(viii) To what relief or reliefs, plaintiffs are
entitled?
5. After considering the evidence, the trial court by
judgment and decree dated 31.8.1987 decreed the suit in
part. It held that the suit property was part of
plaintiffs’ property and that first defendant had
encroached over a part of it to an extent of 15 sq. ft. The
trial court held that as first defendant had already put up
his construction over the encroached portion and was using
it, instead of directing him to deliver back possession
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thereof, he should pay Rs.100/- as the price of the
encroached portion, to the plaintiffs. Feeling aggrieved,
the first defendant filed an appeal. Plaintiffs filed
cross-objections. The first appellate court held that the
plaintiffs had failed to prove that the suit property was
part of their property purchased under sale deed dated
29.12.1962 or that first defendant had encroached upon any
portion of plaintiffs’ property; and that the evidence
adduced by plaintiffs established that the Gali (suit
property) was earlier owned by Ishan Chand Ghosh and his
sons and plaintiffs were only using the said Gali with
their express permission. The first appellate court
therefore allowed the appeal filed by first defendant and
dismissed the cross-objections filed by the plaintiffs by
judgment dated 12.1.1989. As a consequence the suit of the
plaintiffs was dismissed.
6. Feeling aggrieved, the plaintiffs filed a second
appeal before the High Court. The High Court by judgment
dated 14.5.2004 allowed the second appeal. The High Court
held that the plaintiffs had failed to make out title to
the suit property. It however held that plaintiffs had made
out a case for grant of relief based on easementary right
of passage, in respect of the suit property, as they had
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claimed in the plaint that they and their vendor had been
using the suit property, and the first defendant and DW6
had admitted such user. The High Court was of the view that
the case based on an easementary right could be considered
even in the absence of any pleading or issue relating to an
easementary right, as the evidence available was sufficient
to make out easementary right over the suit property. The
High Court therefore granted a permanent injunction
restraining the first defendant from interfering with the
plaintiffs’ use and enjoyment of the ‘right of passage’
over the suit property (as also of the persons living on
the northern side of the suit property). The High Court
also observed that if there was any encroachment over the
said passage by the first defendant, that will have to be
got removed by the “process of law”. The High Court also
issued a permanent injunction restraining the plaintiffs
from encroaching upon the suit property (passage) till the
plaintiffs got a declaration of their title over the suit
property by a competent court. The first defendant sought
review of the said judgment. The review petition was
dismissed by the High Court by order dated 9.12.2004.
7. The said judgment and order on review application,
of the High Court, are challenged by the first defendant in
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these appeals by special leave. The Appellant contends that
neither in law, nor on facts, the High Court could have
granted the aforesaid reliefs.
8. The High Court, in this case, in its obvious zeal to
cut delay and hardship that may ensue by relegating the
plaintiffs to one more round of litigation, has rendered a
judgment which violates several fundamental rules of civil
procedure. The rules breached are :
(i) No amount of evidence can be looked into, upon a
plea which was never put forward in the pleadings. A
question which did arise from the pleadings and which was
not the subject matter of an issue, cannot be decided by
the court.
(ii) A Court cannot make out a case not pleaded. The
court should confine its decision to the question raised in
pleadings. Nor can it grant a relief which is not claimed
and which does not flow from the facts and the cause of
action alleged in the plaint.
(iii) A factual issue cannot be raised or considered for
the first time in a second appeal.
Civil Procedure Code is an elaborate codification of the
principles of natural justice to be applied to civil
litigation. The provisions are so elaborate that many a
time, fulfillment of the procedural requirements of the
Code may itself contribute to delay. But any anxiety to cut
the delay or further litigation, should not be a ground to
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float the settled fundamental rules of civil procedure. Be
that as it may. We will briefly set out the reasons for the
aforesaid conclusions.
9. The object and purpose of pleadings and issues is to
ensure that the litigants come to trial with all issues
clearly defined and to prevent cases being expanded or
grounds being shifted during trial. Its object is also to
ensure that each side is fully alive to the questions that
are likely to be raised or considered so that they may have
an opportunity of placing the relevant evidence appropriate
to the issues before the court for its consideration. This
Court has repeatedly held that the pleadings are meant to
give to each side intimation of the case of the other so
that it may be met, to enable courts to determine what is
really at issue between the parties, and to prevent any
deviation from the course which litigation on particular
causes must take.
10. The object of issues is to identify from the
pleadings the questions or points required to be decided by
the courts so as to enable parties to let in evidence
thereon. When the facts necessary to make out a particular
claim, or to seek a particular relief, are not found in the
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plaint, the court cannot focus the attention of the
parties, or its own attention on that claim or relief, by
framing an appropriate issue. As a result the defendant
does not get an opportunity to place the facts and
contentions necessary to repudiate or challenge such a
claim or relief. Therefore, the court cannot, on finding
that the plaintiff has not made out the case put forth by
him, grant some other relief. The question before a court
is not whether there is some material on the basis of which
some relief can be granted. The question is whether any
relief can be granted, when the defendant had no
opportunity to show that the relief proposed by the court
could not be granted. When there is no prayer for a
particular relief and no pleadings to support such a
relief, and when defendant has no opportunity to resist or
oppose such a relief, if the court considers and grants
such a relief, it will lead to miscarriage of justice. Thus
it is said that no amount of evidence, on a plea that is
not put forward in the pleadings, can be looked into to
grant any relief.
11. The High Court has ignored the aforesaid principles
relating to the object and necessity of pleadings. Even
though right of easement was not pleaded or claimed by the
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plaintiffs, and even though parties were at issue only in
regard to title and possession, it made out for the first
time in second appeal, a case of easement and granted
relief based on an easementary right. For this purpose, it
relied upon the following observations of this Court in
Nedunuri Kameswaramma v. Sampati Subba Rao [AIR 1963 SC
884]:
“No doubt, no issue was framed, and the one, which was
framed, could have been more elaborate, but since the
parties went to trial fully knowing the rival case and
led all the evidence not only in support of their
contentions but in refutation of those of the other
side, it cannot be said that the absence of an issue
was fatal to the case, or that there was that mistrial
which vitiates proceedings. We are, therefore, of
opinion that the suit could not be dismissed on this
narrow ground, and also that there is no need for a
remit, as the evidence which has been led in the case
is sufficient to reach the right conclusion.”
But the said observations were made in the context of
absence of an issue, and not absence of pleadings. The
relevant principle relating to circumstances in which the
deficiency in, or absence of, pleadings could be ignored,
was stated by a Constitution Bench of this Court in
Bhagwati Prasad vs. Shri Chandramaul – AIR 1966 SC 735 :
“ If a plea is not specifically made and yet it is
covered by an issue by implication, and the parties
knew that the said plea was involved in the trial,
then the mere fact that the plea was not expressly
taken in the pleadings would not necessarily
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disentitle a party from relying upon if it is
satisfactorily proved by evidence. The general rule no
doubt is that the relief should be founded on
pleadings made by the parties. But where the
substantial matter relating to the title of both
parties to the suit was touched, tough indirectly or
even obscurely in the issues, and evidence has been
led about them then the argument that a particular
matter was not expressly taken in the pleadings would
be purely formal and technical and cannot succeed in
every case. What the Court has to consider in dealing
with such an objection is : did the parties know that
the matter in question was involved in the trial, and
did they lead evidence about it? If it appears that
the parties did not know that the matter was in issue
at the trial and one of them has had no opportunity to
lead evidence in respect of it, that undoubtedly would
be a different matter. To allow one party to rely upon
a matter in respect of which the other party did not
lead evidence and has had no opportunity to lead
evidence, would introduce considerations of prejudice,
and in doing justice to one party, the Court cannot do
injustice to another .”
(emphasis supplied)
The principle was reiterated by this Court in Ram Sarup
Gupta (dead) by LRs., vs. Bishun Narain Inter College [AIR
1987 SC 1242]:
“ It is well settled that in the absence of pleading,
evidence, if any, produced by the parties cannot be
considered. It is also equally settled that no party
should be 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 . The object and purpose of pleading is to enable
the adversary party to know the case it has to meet.
In order to have a fair trial it is imperative that
the party should state the essential material facts so
that other party may not be taken by surprise. The
pleadings however should receive a liberal
construction, no pedantic approach should be adopted
to defeat justice on hair splitting technicalities.
Sometimes, pleadings are expressed in words which may
not expressly make out a case in accordance with
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strict interpretation of law, in such a case it is the
duty of the court to ascertain the substance if the
pleadings to determine the question. It is not
desirable to place undue emphasis on form, instead the
substance of the pleadings should be considered.
Whenever the question about lack of pleading is raised
the enquiry should not be so much about the form of
pleadings, instead the court must find out whether in
substance the parties knew the case and the issues
upon which they went to trial. Once it is found that
in spite of deficiency in the pleadings, parties knew
the case and they proceeded to trial on those issue by
producing evidence, in that event it would not be open
to a party to raise the question of absence of
pleadings in appeal .”
[emphasis supplied]
12. It is thus clear that a case not specifically pleaded
can be considered by the court only where the pleadings in
substance, though not in specific terms, contains the
necessary averments to make out a particular case and the
issues framed also generally cover the question involved
and the parties proceed on the basis that such case was at
issue and had led evidence thereon. As the very
requirements indicate, this should be only in exceptional
cases where the court is fully satisfied that the pleadings
and issues generally cover the case subsequently put
forward and that the parties being conscious of the issue,
had led evidence on such issue. But where the court is not
satisfied that such case was at issue, the question of
resorting to the exception to the general rule does not
arise. The principles laid down in Bhagwati Prasad
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and Ram Sarup Gupta (supra) referred to above and
several other decisions of this Court following
the same cannot be construed as diluting the well settled
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principle that without pleadings and issues, evidence
cannot be considered to make out a new case which is not
pleaded. Another aspect to be noticed, is that the court
can consider such a case not specifically pleaded, only
when one of the parties raises the same at the stage of
arguments by contending that the pleadings and issues are
sufficient to make out a particular case and that the
parties proceeded on that basis and had led evidence on
that case. Where neither party puts forth such a
contention, the court cannot obviously make out such a case
not pleaded, suo moto .
13. A perusal of the plaint clearly shows that entire case
of the plaintiffs was that they were the owners of the suit
property and that the first defendant had encroached upon
it. The plaintiffs had not pleaded, even as an alternative
case, that they were entitled to an easementary right of
passage over the schedule property. The facts to be pleaded
and proved for establishing title are different from the
facts that are to be pleaded and proved for making out an
easementary right. A suit for declaration of title and
possession relates to the existence and establishment of
natural rights which inhere in a person by virtue of his
ownership of a property. On the other hand, a suit for
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enforcement of an easementary right, relates to a right
possessed by a dominant owner/occupier over a property not
his own, having the effect of restricting the natural
rights of the owner/occupier of such property.
14. Easements may relate to a right of way, a right to
light and air, right to draw water, right to support, right
to have overhanging eaves, right of drainage, right to a
water course etc. Easements can be acquired by different
ways and are of different kinds, that is, easement by
grant, easement of necessity, easement by prescription,
etc. A dominant owner seeking any declaratory or injunctive
relief relating to an easementary right shall have plead
and prove the nature of easement, manner of acquisition of
the easementary right, and the manner of disturbance or
obstruction to the easementary right. The pleadings
necessary to establish an easement by prescription, are
different from the pleadings and proof necessary for
easement of necessity or easement by grant. In regard to an
easement by prescription, the plaintiff is required to
plead and prove that he was in peaceful, open and
uninterrupted enjoyment of the right for a period of twenty
years (ending within two years next before the institution
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of the suit). He should also plead and prove that the right
claimed was enjoyed independent of any agreement with the
owner of the property over which the right is claimed, as
any user with the express permission of the owner will be a
licence and not an easement. For claiming an easement of
necessity, the plaintiff has to plead that his dominant
tenement and defendant’s servient tenement originally
constituted a single tenement and the ownership thereof
vested in the same person and that there has been a
severance of such ownership and that without the
easementary right claimed, the dominant tenement cannot be
used. We may also note that the pleadings necessary for
establishing a right of passage is different from a right
of drainage or right to support of a roof or right to water
course. We have referred to these aspects only to show that
a court cannot assume or infer a case of easementary right,
by referring to a stray sentence here and a stray sentence
there in the pleading or evidence.
15. A right of easement can be declared only when the
servient owner is a party to the suit. But nowhere in the
plaint, the plaintiffs allege, and nowhere in the judgment,
the High Court holds, that the first or second defendant is
the owner of the suit property. While concluding that the
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plaintiffs were not the owners of the suit property, the
High Court has held that they have a better right as
compared to the first defendant and has also reserved
liberty to the plaintiffs to get their title established in
a competent court. This means that the court did not
recognize the first defendant as the owner of the suit
property. If the High Court was of the view that defendants
were not the owners of the suit property, it could not have
granted declaration of easementary right as no such relief
could be granted unless the servient owner is impleaded as
a defendant. It is also ununderstandable as to how while
declaring that plaintiffs have only an easementary right
over the suit property, the court can reserve a right to
the plaintiffs to establish their title thereto by a
separate suit, when deciding a second appeal arising from a
suit by the plaintiffs for declaration of title. Nor is it
understandable how the High Court could hold that the apart
from plaintiffs, other persons living adjacent to and north
of the suit property were entitled to use the same as
passage, when they are not parties, and when they have not
sought such a relief.
16. The observation of the High Court that when a
plaintiff sets forth the facts and makes a prayer for a
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particular relief in the suit, he is merely suggesting what
the relief should be, and that it is for the court, as a
matter of law, to decide upon the relief that should be
granted, is not sound. Such an observation may be
appropriate with reference to a writ proceeding. It may
even be appropriate in a civil suit while proposing to
grant as relief, a lesser or smaller version of what is
claimed. But the said observation is misconceived if it is
meant to hold that a civil court may grant any relief it
deems fit, ignoring the prayer. It is fundamental that in a
civil suit, relief to be granted can be only with reference
to the prayers made in the pleadings. That apart, in civil
suits, grant of relief is circumscribed by various factors
like court fee, limitation, parties to the suits, as also
grounds barring relief, like res judicata, estoppel,
acquiescence, non-joinder of causes of action or parties
etc., which require pleading and proof. Therefore, it would
be hazardous to hold that in a civil suit whatever be the
relief that is prayed, the court can on examination of
facts grant any relief as it thinks fit. In a suit for
recovery of Rs.one lakh, the court cannot grant a decree
for Rs. Ten lakhs. In a suit for recovery possession of
property ‘A’, court cannot grant possession of property
‘B’. In a suit praying for permanent injunction, court
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grant a relief of declaration or possession. The
jurisdiction to grant relief in a civil suit necessarily
depends on the pleadings, prayer, court fee paid, evidence
let in, etc.
17. In the absence of a claim by plaintiffs based on an
easementary right, the first defendant did not have an
opportunity to demonstrate that the plaintiffs had no
easementary right. In the absence of pleadings and an
opportunity to the first defendant to deny such claim, the
High Court could not have converted a suit for title into a
suit for enforcement of an easementary right. The first
appellate court had recorded a finding of fact that
plaintiffs had not made out title. The High Court in second
appeal did not disturb the said finding. As no question of
law arose for consideration, the High Court ought to have
dismissed the second appeal. Even if the High Court felt
that a case for easement was made out, at best liberty
could have been reserved to the plaintiffs to file a
separate suit for easement. But the High court could not,
in a second appeal, while rejecting the plea of the
plaintiffs that they were owners of the suit property,
grant the relief of injunction in regard to an easementary
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right by assuming that they had an easementary right to use
the schedule property as a passage.
18. We accordingly allow these appeals and set aside the
judgment and order of the High Court and restore the
judgment of the first appellate court. Parties to bear
respective costs.
19. The learned counsel for respondents – plaintiffs
submitted that the parties have been litigating for more
than quarter of a century over a small strip; and that
without prejudice to their rights, if some arrangement
could be arrived at whereby the plaintiffs are permitted
to have at least a ‘pakka nala’ for passage of effluents
from their property, it may put an end to the dispute
between the two neighbours. All that we can observe is that
it is always open to the parties to get any issue or
dispute settled by mediation or by direct negotiations.
This observation should not however be construed as
recognition of any right in plaintiffs.
……………………………………………………………..J
[R. V. Raveendran]
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……………………………………………………………………J
[Lokeshwar Singh Panta]
New Delhi;
23.9.2008