1993 Supreme(MP) 221

Gulab C. Gupta, J.
Dayaram v. Kalicharan
S.A. No. 158 of 1982 (G); Decided on 18.3.1993*.

Headnote:Suit -- relief not claimed in suit -- cannot be granted.

        okn & vuqrks"k dk okn eas nkok ugha fd;k x;k & eatwj ugha fd;k tk ldrkA

        The suit land consists Survey No. 1051, area 0.312 hectare situate at village Katha, Tahsil Lahar. The case of the appellants is that they were in possession bf the suit land since long and have been enjoying the benefits thereof as its owners. They, therefore, claimed the declaration of their title. The case of the respondents/defendants is that the suit land is not in possession of the appellants and that they have no right or title over the same. The trial Court, on these pleadings, held that the question of adverse possession does not arise. The Court further held that the suit land was not in possession of the appellants. That is how the suit was dismissed. The said judgment has been affirmed in the appeal and hence this second appeal.

        Held: As regards possession of the appellants over the well, the.1earned lower appellate, Court has, in para 16 of the impugned judgment, held that documents Ex. D-1 to D-3 and the statement of Kalicharan (D.W.l), in para I, clearly establish that the well and the Kutti machine exist on a portion of the suit land and is owned by the appellant. This Court has, however, gone through these documents, These documents and oral evidence furnish no basis for the aforesaid conclusion recorded by the learned lower appellate Court. Ex. D-1 is Khasra relating to Samvat 2008 and mentions that a well exists on the land and the said well has been recently repaired. The well is said to be in possession of Tulsiram. This document, admittedly, does not relate to the appellants and does not help their claim, The next Khasra Ex. D-2, .related to Samvat 2015 to 2019 and mentioned that the well of which 2/3rd ownership vests in Tulsiram and 1/3rd in Motilal, father of appellant No.1, since this appellant is claiming through Motilal and hence, to that extent the documents may support his claim. But it cannot be overlooked that this entry is made in Column No. 12 and the manner in which the ownership is divided between Tulsiram and Motilal would make one look into the decision about this divisions particularly when earlier in Samvat 2008 (Ex. D-1) whole well is recorded in the ownership of Tulsiram. Entry in Ex. D-3 is exactly like the entry in Ex. D-2. Even if the entries in Ex. D-2 and D.-3 are held to be of any importance, it would not justify the conclusion that the whole of the well is owned by the appellants. As regards the statement of Kalicharan (D.W.l) in para 2, there is nothing therein to justify the conclusion recorded by the lower appellate Court. This witness has asserted that well belongs to him. Para 2 contains cross examination with regard to his assertion of title and he admits that he has not made such an assertion in his written statement. This may give rise to an inference of his reliability which may have been decided by the learned Judge. But, statement, if believed as true, would not lead to the conclusion that he has admitted ownership of the appellants over the well in dispute. Obviously, the observations made by the learned lower appellate Court, with regard to the ownership are without any basis. Indeed, if entire para 16 of the impugned judgment is read it would appear that the learned Judge was dealing with the submissions about ownership of the well and the Kutti machine; and not of the disputed land and has written the said paragraph rejecting the said claim.

        The fact noticed by, the learned Judge which is important for consideration of the question in this Court is that the well is not even mentioned in the plaint. If that be so and there appears to be no doubt about it, there is no reason why the appellants would be considered entitled to declaration in that regard. The law in this regard is rather well settled. Any relief not claimed in the petition cannot be granted by the Court. Appeal dismissed.