The evidence presented can establish a claim even in the absence of specific pleading, if both parties knew the case of each other, proceeded to trial, and led evidence.

JUDGMENT : – This second appeal had been filed by appellant/defendant-Gulab Chand (now represented by the legal representatives) challenging the judgment and decree dated 29-1-1997 passed by Third Additional District Judge, Damoh in Civil Appeal No. 17-A/1996, whereby confirming the judgment and decree dated 20-2-1996 passed by First Civil Judge Class-II, Damoh in Civil Suit No. 46-A/1992, whereby suit for permanent injunction filed by the respondent/plaintiff-Bhushan (now represented by the legal representatives) was decreed holding the passage in question to be a public passage.

2. In short the facts of the case are that the original plaintiff-Bhushan Prasad instituted a suit for permanent injunction regarding the passage in question alleging that the plaintiff and other residents are using the passage in question for a period more than 100 years and the plaintiff has acquired right of easement by prescription. It is alleged in para 4 of the plaint that the pavement (Pharshikaran) of the disputed passage (Kuliya) was done 25 years ago by erstwhile Nagar Parishad, Damoh. On inter alia allegations, the suit was filed for restraining the defendant from making any interference in the plaintiff’s use of the passage in question by raising construction or otherwise.

3. The defendant/appellant appeared and filed written statement denying the plaint allegations and contended that he is owner of the dispute passage (Kuliya), which he purchased from predecessor-in-title namely Banbihari Choubey and the plaintiff is not in use of the said Kuliya. Accordingly, the suit was prayed to be dismissed with exemplary cost of Rs. 1,000/-.

4. On the basis of pleadings, learned trial Court framed as many as four issues and recorded evidence of the parties. After considering and appreciating oral as well as documentary evidence of both the parties, learned trial Court vide judgment and decree dated 20-2-1996, held that the passage (Kuliya) in question is a public passage and is being used by plaintiff and other persons. However, it was also held that the plaintiff has not acquired right of easement by prescription. Upon appeal filed by the appellant/defendant, learned first appellate Court vide its judgment and decree dated 29-1-1997 affirmed the judgment and decree of trial Court.

5. This second appeal was admitted by this Court on 29-6-1998 on the following substantial questions of law : –

(a) Whether the Courts below wrongly travelled beyond pleadings and held that the suit land is a public passage while it was never pleaded by the plaintiff that it is a public passage? (b) Whether in the facts and circumstances of the case, the plaintiff has failed to establish his claim for right of way over the suit land and grant of permanent injunction?

6. Learned counsel for the appellant submits that the Court cannot travel beyond the case pleaded by parties and there is no specific pleading in the plaint to the effect that the suit land is a public passage and he further submits that in view of the finding to the effect that the plaintiff has not acquired right of easement by prescription, the learned Court below has erred in granting decree of permanent injunction in his favour. He contends that the second appeal be allowed.

7. Learned counsel for the respondent submits that there are sufficient pleadings in the plaint that the passage (Kuliya) in question is a public passage and is being used by plaintiff and other persons for a long period. The pavement of it was got done 25 years ago by erstwhile Nagar Parishad, Damoh. He submits that after considering the evidence led by parties, the learned Courts below have rightly decreed the suit and granted decree of permanent injunction and in the second appeal re-appreciation of evidence is not permissible. With these submissions, he prays for dismissal of the appeal.

8. Heard learned counsel for the parties and perused the record.

9. From bare perusal of the plaint allegations, it is clear that although ther