Sundarlal vs Chaitadas - 1977 Supreme(MP) 153

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates:
Advocate Appeared:
For the Appellant : K.N. Agrawal
For the Respondent: B.C. Verma

Headnote:(1) Civil Procedure Code, 1908 - O.41, R.33 - First appellate Court while reversing the decree of the trial Court dismissed the plaintiff's suit as the khasra Number was incorrect in disputed sale - deed - appellate court took hyper technical view - identity of the disputed land was capable of being ascertained.
       (2) Civil Procedure Code, 1908 - S.100 - plea not raised in written statement - cannot be urged in second appeal.
       Short Note
       The second appeal was at the instance of the plaintiff whose suit for possession or the suit land comprising of O.68 acres in village Chiraidongri had been dismissed by the lower appellate Court after reversing the judgment and decree passed by the trial Court.
       2. Held : From the perusal of the judgment and decree impugned, it is apparent that the claim of the plaintiff has been dismissed by taking hyper technical view regarding the mention of Khasra number in the sale - deed executed by the defendant in favour of the plaintiff. The lower appellate Court has reversed the decree of the trial Court by observing that since Khasra No. 227/2 was mentioned in the sale - deed executed by the defendant in favour of the plaintiff, the trial Court should not have decreed his claim for possession in respect of the suit land which was actually shown as Khasra No. 227/2 in the absence of any rectification of the sale - deed by a duly executed document. In the opinion of this Court, the approach of the lower appellate Court is absolutely erroneous in law and facts. Admittedly, the defendant owned only O.68 acres of land as shown in the revenue record under Khasra No. 227/2. It could not be said that the identity of the land sold was unascertainable or not capable of being ascertained, particularly, when the suit property was the only land held by the defendant under the said Khasra number.
       3. On behalf of the respondent defendant, an attempt was made to contend that the judgment and decree of the lower appellate Court dismissing the suit of the plaintiff can be sustained on the other ground i.e. want of consideration. This contention was rightly rejected by the lower appellate Court by observing that in the absence of any such case having been pleaded in the written statement, it was not permissible for the defendant to urge this ground. The suit was instituted and contested on the question of title and the validity of the sale - deed. Once the plaintiff established his title to the suit house, he was entitled to the relief of possession against the defendant, who was his vendor. Appeal allowed.