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2021 Supreme(Bom) 963
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Sandeep K. Shinde, J.
Mr. Mahadu Karbhari Pund (mali) & Ors. - Appellants
Versus
Mrs. Sonyabai Khandu Maske And Ors. - Respondent
Second Appeal No. 606 of 2015 and Civil Application No. 1341 of 2015
Decided On : 26-03-2021
Mr. Rameshwar N. Gite, Advocate, for the Appellant / Mr. Anilkumar K. Patil, Advocate, for the Respondent.
The judgment emphasized the importance of pleadings in determining the relief that can be granted by the court.
Headnote:
Pleadings - Suit Property - Gat No.36 - Order 20 Rule 12 of Civil Procedure Code - Bachhaj Nahar Versus. Nilima Mandal and Another, (2008) 17 SCC 491
Fact of the Case:
The plaintiffs sought a declaration of their title and injunction to restrain the defendants from obstructing and interfering their possession over the suit land. The trial Court decreed the suit and rejected the counterclaim of the defendants no. 13 and 14. The Appellate Court modified the decree, leading to the appeal.
Finding of the Court:
The Appellate Court correctly held that defendants no. 13 and 14 are the owners of half southern portion of Gat No.36 based on established facts from evidence and pleadings.
Issues: The main issue was the ownership of the suit property and the relief granted beyond pleadings in the counter-claim.
Ratio Decidendi: The court emphasized that when the facts necessary to make out a particular claim or to seek a particular relief are not found in the pleadings, the court cannot grant such relief. The judgment in Bachhaj Nahar Versus. Nilima Mandal was cited to support this principle.
Final Decision: The Appeal was dismissed, and the Civil Application No. 1341 of 2015 was disposed of.
JUDGMENT
1. Heard Mr. Gite, learned Counsel for the appellants and Mr. Patil, learned Counsel for the respondents.
2. Aggrieved by the decree passed in Regular Civil Appeal No.9/2004, original plaintiffs in Regular Civil Suit No. 71/1996 have preferred this Second Appeal.
3. The only ground, on which the impugned decree has been assailed, is the ground no.11 of the Appeal Memo, which reads as under :
"11. The Judgment and Order passed by the Ld. District Court is perverse to the record and therefore, is illegal, improper and is against the documents on record and therefore deserves to be quashed and set aside."
3. Facts:
Suit property is Gat No.36. Plaintiffs sought, a declaration of their title and injunction to restrain the defendants from obstructing and interfering their possession over the suit land. Respondents no. 13 and 14 (original defendants no. 13 and 14) had filed a counter-claim and asserted their right and share in the suit Gat No.36. The learned trial Court vide judgment and decree dated 2nd January, 2004 decreed the suit and rejected the counterclaim of the defendants no. 13 and 14. Aggrieved by the decree, the original defendants no.1 to 8 had preferred Regular Civil Appeal No. 5/2004; whereas, defendants no. 13 and 14 have preferred Regular Civil Appeal No.9/2004. The Appellate Court dismissed Appeal No. 5/2004. However, Appeal No.9/2004 was allowed. Resultantly, decree of the trial Court, was modified as follows :
"(i)That the plaintiffs and defendant Nos.9 to 12 are declared to be owners of north side V2 portion out of Gat No.36, situated at Gajarwadi and defendant Nos.1 to 8, either by themselves or through anybody on their behalf are permanently restrained from disturbing possession of plaintiffs and defendant Nos.9 to 12 over north side V2 portion of suit property.
(ii) It is further ordered and declared that defendant Nos.13 and 14 by name Pandharinath Pund and Vishnu Pund are owners of south side V2 portion out of Gat No. 36 and plaintiff Nos.1 and 2 and defendant Nos.9 to 12 are ordered to deliver possession of said south side V2 portion to defendant Nos.13 and 14, within 3 months from today i.e. on or before 5/8/2014.
(iii) Separate enquiry into past and future mesne profits is ordered to be held under Order 20 Rule 12 of Civil Procedure Code."
4. It is against the decree in Regular Civil Appeal No.9/2004, this Appeal is preferred.
5. The learned Counsel for the appellant, would contend that the Appellate Court erred in granting, the relief beyond pleadings in the counter-claim. It is submitted that, the defendants no. 13 and 14 did not seek a declaration of the title in Suit Gat no.36. It is submitted, in absence of the pleadings, the Appellate C0ourt has declared the defendants no. 13 and 14 as owners of the southern portion of Gat No.36. In support of the contentions, learned Counsel, has taken me through the plaint, judgment of the trial Court, Appellate Court and the issues/points framed therein. The learned Counsel has also taken me through the Written Statement filed by defendants no. 13 and 14 and particularly relied on para-9 of the Written Statement. Submission is that, the defendants no. 13 and 14 would assert their interest in the suit land as the 'tenants' and not as its owners. Learned Counsel, in support of his submissions, relied on the judgment of the Apex Court in the case of Bachhaj Nahar Versus. Nilima Mandal and Another, (2008) 17 SCC 491.
6. Mr. Patil, learned Counsel on the other hand, would support the judgment and decree passed in Regular Civil Appeal No.9/2004.
7. I have carefully considered the submissions of the Counsel for the parties.
Facts discerned from Evidence-Pleadings :
8. That father of the plaintiffs, Karbhari Gangaram Pund and father of defendants no. 13 and 14, Kashiram Abaji Pund had purchased the suit Gat No.36 from the predecessor-in-title of defendants no.1 to 8. The sale-deed is at Exhibit-102. This fact is not in dispute. In fact, this fact is pleaded in plaint, para-2.
