Rajasthan High Court - Jaipur
Manna Lal vs Mool Chand And Anr. on 21 March, 1986
Equivalent citations: 1986(1)WLN480
JUDGMENT Surendra Nath Bhargava, J.
1. This is defendant's second appeal against the judgment and decree passed by Additional District Judge, Baran, decreeing the suit of the plaintiffs and reversing the decree passed by Additional Munsif Magistrate No. 1, Kota.
2. Smt. Kesar Bai was the owner and in possession of the suit house described in para 1 of the plaint, which was constructed by her husband Shri Bala Bux. Mst. Ramjanki Bai was the daughter of Mst. Kesar Bai, while Mool Chand and Bhag Chand, plaintiff respondents are the sons of Mst. Ramjanki Bai. Smt. Kesar Bai had no son and, therefore, she bequeathed this house to the plaintiff-respondents, by a registered Will (Ex. 1) dated August 7, 1965, and the plaintiffs came in possession of the suit premises on the death of Smt. Kesar Bai and since then, they have been in possession of the suit premises. It was alleged in the plaint that when the plaintiffs' father had gone to some other village, the defendant Came and illegally occupied two rooms in this house and fixed one pipe in front of one of the rooms. After the death of Smt. Kesar, the plaintiffs kept certain tenants who have been paying rent to the plaintiffs and since the defendant was trying to dispossess the plaintiffs' from the other portion of the suit house also, the plaintiffs filed the present suit on 15-3-1967, praying that the defendant be dispossessed from the portion which he was illegally occupying and that he be further restrained by granting a permanent injunction against him from interfering with the possession of the plaintiffs.
3. The defendant contested the suit and filed his written statement on 16-10-1967 pleading, inter alia, that the house was built by his father Nathu Lal, and on the death of Nathu Lal, the property was partitioned between his sons Bala Bux. Manna Lal and Chaturbhuj. Bala Bux came in possession of the property situated in the west of the house which he had already sold. The suit house came in possession of the defendant and his brother Chaturbhuj and hence, they were in possession as its owner. It has further been alleged that before the death of Nathu Lal, he lived in this house, and after his death, the defendant has been in possession of this house continuously.
4. The trial court after framing issues and recording evidence of the parties, dismissed the suit of the plaintiffs holding that the suit house was not built by Bala Bux, as alleged in the plaint, and that Bala Bux had sold the property which fell to his share; that the plaintiffs' never kept tenants in the disputed house and that the defendant did not illegally occupy the suit house, as alleged in the plaint, but was in possession in his own rights.
5. The plaintiffs filed an appeal before the Additional District Judge, Baran, who by its judgment and decree dated 24-1-1973 held that the house in dispute was not built by Bala Bux and further that Bala Bux had sold portion of his house as mentioned in the written statement. It however, held that Smt. Kesar Bai was the owner of the house in dispute as mentioned in the Will (Ex. A-l). Learned Additional District Judge further held that even if the ownership of the plaintiffs in the suit house was not proved, the plaintiffs were entitled to get a decree on the basis of possessory title. He thus, accepted the appeal and decreed the suit against the defendant for ejectment of the defendant from the suit premises and further granted a permanent injunction in favour of the plaintiffs and against the defendant, restraining him from interfering in possession of the plaintiffs. Hence, this appeal.
6. Learned counsel for the appellant has submitted that the plaintiffs' case was based on title and not on possessory title and the issue was to the effect as to whether the disputed house had been built by Balabux. Both the learned courts below have come to a concurrent finding that the suit house was not built by Balabux and still, learned Additional District Judge held that Smt. Kesar Bai was the owner of the suit house. Learned Additional District Judge has made out a new case in favour of the plaintiffs. The lower appellate court seriously erred in relying on the Will (Ex.1) to hold that Smt. Kesar Bai was the owner and the recital of ownership in Ex. 1 by Smt. Kesar Bai is inadmissible in evidence as being admission in her own favour, in view of Section 13(a) and Section 32(7) of the Indian Evidence Ast. Learned Additional District Judge has further seriously erred in making out a new case for the plaintiffs, which was neither pleaded nor there was any issue nor any evidence was led to the effect that the plaintiffs were the owner on the basis of their possession. Possessory title is a question of fact and unless it was specifically pleaded and was in issue, the defendant had no occasion to lead any evidence on this point. Learned counsel for the appellant has placed on Vasudev Prasad v. Jenda Mahato 1969 UJ(SC) 217, wherein the Supreme Court has held that plea of adverse possession should be taken specifically in the pleadings and all the facts with regard to alleged possession should be pleaded in the pleadings. Reliance has also been placed on Sheodhari Rai and Ors. v. Suraj Prasad Singh and Ors. , wherein also it has been observed that it is not open for the court to make out a new case which was not set up by the parties and variance between the pleading and proof cannot be permitted. For the same proposition, reliance was also placed on a division bench judgment of this court in Kusumchand v. Kanhaiyalal 1973 RLW 378 wherein it was observed that no amount of evidence could be looked in to open a plea which was never put forward. Consistency between the pleadings and proof has been insisted in the trial of causes not as a matter of mere procedural ritual but is based on the principles of natural justice. Pleadings are intended to convey to the party opposite the precise claim and the grounds on which it rests so that the opposite party may be in a position to meet it. A variation between pleading and proof causes surprise and confusion and, therefore, has been always looked upon with considerable disfavour. It has the inherent mischief of springing surprise on the party". Reliance has also been placed on S.M. Karim v. Bibi Sakina . Learned counsel for the appellant has further submitted that admission in her own favour is no evidence and in this connection he has placed relianee on Mahendra Manilal v. Shusila and Sheikh Mohd. Abdul Qadir and ors. v. The Anjuman Moinia Fakhria and Ors. 1971 WLN 396. He has further placed reliance on Maharajadhiraj of Burdwan, Uday Chand Mahatab Chand v. Subodh Gopal Bose and Ors. wherein it has been held that the possession of the land by a co-owner, however long it might be, cannot confer on him any right unless it is adverse to other co-owners". He has also drawn my attention to a recent decision of this court in S.B. Civil Second Appeal No. 163/84 decided on 15-3-1985. He has also placed reliance on Kalulal v. Munalal 1975 RLW 731 in which was Considered.
7. On the other hand, learned counsel for the respondent has vehemently argued that this is a second appeal and no substantial question of law is involved in it and the appeal should be dismissed. He has further submitted that the registered Will by Smt. Kesar Bai in favour of the plaintiffs has been duly proved and the same has not been challenged and there is a specific mention in the Will that the property was owned by Smt. Kesar Bai. The plea of partition taken by the defendant appellant cannot be accepted as there is no Partition Deed in writing, registered or un-registered. Even, there is no family settlement or even a memo incorporating the family settlement, if any and that in any case, the plaintiffs have a better title than the defendant and that therefore, the court below were justified in decreeing the suit. He has placed reliance on Municipal Board Etawah v. Mst. Ram Sri and Anr. as also .
8. I have carefully gone through the record of the case as also the two judgments of the courts below as well as the authorities cited at the bar.
9. The plaintiffs in their plaint have asserted that the disputed house was owned by Smt. Kesar Bai widow of Balabux and that she had bequeathed the said house in favour of the plaintiffs by a registered Will, dated August 7, 1965. It has nowhere been stated in the plaint that the plaintiffs had become owner by way of adverse possession or that they claimed title by possession. Therefore, the defendants had no occasion to controvert that the plaintiffs had, not become owners by adverse possession or that the plaintiffs cannot claim possessory title and obviously, no issue could have been framed and the parties could not have lead any evidence on this point. The question of adverse possession or claiming possessory title is a question of fact and all the facts on which such a claim is based, should be mentioned in the pleadings. In our country, so far justice is delivered by adversary system and therefore, party must put up its case in the pleadings so that the other party gets an opportunity to rebut the case and is in a position to meet it, if it can. It is fundamental principle of natural justice that a party ought to know what case it has to meet, and even if one party leads evidence beyond the pleadings such evidence has to be ignored and cannot be looked into by the court. Court cannot make out a new case for any party. The decision has to be based within the four corners of the pleadings of the parties. Since both the courts below have found that the disputed house was not constructed by Balabux husband of Smt. Kesarbai, which is final being a finding of fact, Smt. Kesar Bai had no right to bequeath the said property in favour of the plaintiffs and therefore, the registered Will by Smt. Kesarbai in their favour is of no avail and the plaintiffs have not been able to prove their ownership of the said property and they cannot claim possessory title in the absence of any pleading to that effect. Prejudice to the defendant is obvious because he had no occasion to meet the case of the plaintiffs based on possessory title and they had no opportunity to lead any evidence in that connection and the learned Additional District Judge was not right in making out a new case in favour of the plaintiffs which was never pleaded. Moreover, admission in the Will is by Smt. Kesarbai and the plaintiffs claimed their title through Smt. Kesar Bai. An admission, when it is in favour of a party seeking to use it, is inadmissible in evidence. The plaintiffs have based their case only on title and have also attributed their possession also on that title. The parties had no occasion of trial on question of plaintiffs anterior possession independent of their title and, therefore, no decree for possession could be granted in their favour even if they have been able to prove their prior possession or a better title. I have got support in my conclusions by decision of this court in Kalu Lal v. Manna Lal (supra).
10. In this view of the matter, this appeal is allowed, the judgment and decree passed by the Addl. District Judge, Baran is set aside, and that of Addl. Munsif Magistrate No. 1, Kota is restored. The suit of the plaintiff is hereby dismissed. Looking to the facts and circumstances of the case, the parties are left to bear their own costs.