JUDGMENT:- Heard learned counsel Mr. N. D. Sonawane instructed by Advocate Shri. V. D. Hon, who appears for the appellant. This Second Appeal is filed by the defendant No.2 in Regular Civil Suit No.48/94.(The parties hereinafter are referred to their original status as plaintiff and defendants in Regular Civil Suit No.48/94).

2. The plaintiff had filed Regular Civil Suit No.4812004 on October 26, 1994 against the defendants for perpetual injunction. The suit, after hearing the parties, came to be dismissed by the Trial Court by its judgment and order passed on October 12, 2001. This judgment dismissing the suit, was challenged by the plaintiff in Regular Civil Appeal No.3/2002. This Regular Civil Appeal No.3/2002, after hearing the parties came to be allowed by the learned Additional District Judge, Kopargaon by its judgment and order dated October 18, 2004, and dismissal of the Regular Civil Suit No.48/ 1994 was quashed and set aside by the First Appellate Court. The First Appellate Court decreed the suit with costs. The defendants were directed to remove the construction of the road, passing through the land of plaintiff on/or before 30th November, 2004. This judgment and decree passed by the First Appellate Court on October 18, 2004 in Regular Civil Suit No.3/2002 is the subject matter of this Second Appeal.

3. The learned counsel for appellant has made available copy of the paper book supplied to the parties by the office of learned Additional District Judge, Kopargaon, District Judge, Ahmednagar. The pleading of the parties in civil suit is important. The pleading is defined under Order 6, Rule 1 of the Code of Civil Procedure. Plaint is pleading of the plaintiff and written statement is the pleading of the defendant. The parties are expected to plead material facts in their pleadings. The parties can lead their evidence in support of their pleadings. The pleading of the parties, thus is a foundation of stance taken by the parties in Civil Proceeding. Importance of the pleading is reiterated by the Supreme Court time and again. Reference can be made to the recent judgment of the Supreme Court in the matter of "State Bank of India Vs. S. N. Goyal", reported in (2008 A.I.R. S.C.W. 4355: [2008 ALL SCR 2139]). The learned counsel has also relied on the judgment of Supreme Court regarding pleadings, in the matter of "Gulabrao Balwantrao Shinde Vs. Chababai Balwantrao Shinde and others", reported in 2002 A.I.R. S.C.W. 4587: [2003(1) ALL MR 398 (S.C.)]. There, the Supreme Court has considered the provisions laid down under Order 6, Rule 1 and Order 7, Rule 7 of C.P.C. The Supreme Court has held that the Court cannot make out a new case which is not pleaded. In the matter of Gulabrao (supra) plaintiff had claimed only the half share in the property.

4. The learned counsel for appellant has invited my attention to the grounds Nos.(III), (IV), (VII), (X), (XI), (XII) raised in present appeal. These grounds are reproduced hereinbelow.

(III) Whether the Court can grant a relief which is not asked by the plaintiff and more so when there is no pleadings to that effect in the plaint?

(IV) Whether the relief of injunction can be granted in favour of a person who is not in possession of the suit land and it is settled principle of law?

(VII) Whether the Courts have overlooked the main aspect of the case that in a suit for perpetual injunction the plaintiff has to prove her possession in the suit land and unless she proves her possession in the suit land, the suit for relief of injunction can not be decreed and injunction should not have been granted in her favour ?

(X) Whether the Appellate Court has erred in holding that without filing cross objection or appeal the Appellant cannot agitate that the road was in existence since the year 1982, when it is now settled law that the party aggrieved by the lower court finding can agitate it in appeal filed by other party without preferring appeal or cross-objection and the Appellate Court has overlooke

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