Gindia Bai vs Narayandas - 1977 Supreme(MP) 298

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates:
Advocate Appeared:
For the Appellants : R.P. Verma
For the Respondents: V.S. Dabir

Headnote:(1) Civil Procedure Code, 1908 - O.6, R.1 and O.7, R.7 - finding of the first appellate Court - not based on the pleadings of the case - Court granted reliefs on its own apprehensions - order bad in law.
       (2) Specific Relief Act, 1963 - S.39 - nobody's case that disputed wall was a common wall - appellate Court granted mandatory injunction for demolishing the disputed construction - order illegal.
       Short Note
       It was a defendant's second appeal arising out of a suit for a declaration that the 'wall' in dispute belonged exclusively to the plaintiff and for an injunction directing the defendants to demolish the construction made by them on that wall. The trial Court decreed the plaintiff's suit holding that the said wall was exclusively owned by the plaintiff. On appeal by the defendants, the District Court set aside the declaration of title granted to the plaintiffs held that the said wall was a common party wall and affirmed the relief of injunction granted by the trial Court.
       2. Held : It is clear that there was no basis in the pleadings to hold that the disputed wall is a common party wall, that being nobody's case. The first appellate Court has itself clearly said that the plaintiff's case being not proved and no decree being possible in plaintiff's favour of the exclusive title claimed by them, on that basis the entire suit was liable to be dismissed. In the opinion of this Court, there is no escape from this conclusion that it is not possible to make out a case to grant the reliefs given by the first appellate Court simply because that would be more reasonable to do or because that might avoid any future complication. The first appellate Court has candidly mentioned these apprehensions as the only reason for granting those reliefs. The conclusion of a common party wall reached by the first appellate Court must, therefore, be set aside. Suit dismissed. Mithoobai v. Om Prakash, AIR 1957 Nag. 389, distinguished. Appeal allowed.