1991 Supreme(MP) 719

IN THE HIGH COURT OF MADHYA PRADESH
M.W. Deo, J.
Bhanwarlal – Appellant
Vs.
Madansingh – Respondent
S.A. No. 119 of 1978 (I)
Decided On : 03-08-1991

Headnote:(1) Civil Procedure Code, 1908 – – S. 96 – – no case of any easement pleaded or proved by defendant – – no relief on the basis of easement can be granted by appellate Court.

       (2) Easement – – acquisition of easementary right to draw water from well neither pleaded nor proved – – no relief can be granted.

        Short Note

       1. The substantial question of law framed in this appeal is as follows: –

       "In absence of any plea, could the Court below grant relief on the ground of easement to the defendant?"

       2. The plaintiffs/appellants had filed the suit for declaration of their title to field S. No. 99 including the well situated in it and to obtain possession thereof. The respondents/defendants had resisted the claim of the plaintiffs on the defence of adverse possession and limitation apart from other defence. Both the Courts below found that the appellants/plaintiffs had proved their title to the suit land• including the well and, therefore, decreed the claim for possession thereof. The first appellate Court, however, while decreeing the possession even of the well in favour of the appellants, ordered that in as much as it appears from the record that the respondents were using the water from this well for their field for the last more than 20 years, they have acquired an easementary right to that effect and, therefore, ordered that the defendants/respondents should continue to enjoy this right:

       3. Held: The learned counsel for the appellants rightly submits that the question of easement of the defendants/respondents to draw water from the suit well was never in issue and did not call for adjudication between the parties. Consequently he submitted that the learned lower appellate Court could not grant such a relief in favour of the defendants/respondents under the impugned judgment.

       4. The learned couslef rot ehr seopnedtn sevyrf iaryls bamti shttat ehd fenednastd din toc almir g tho fnae saeemtn ,tsirtcl ypsaekni gnit enw irtet ntstaeemtn

       5. In these circumstances the learned lower appellate Court certainly was in error in law in travelling beyond the scope of adjudication between the parties in the suit in granting relief of drawing water from the well to the respondents. There is, therefore, no foundation for sustaining such a relief under the impugned judgment and decree. Appeal partly allowed.