Orissa High Court
Managobinda And Ors. vs Brajabandhu Misra on 27 June, 1986
Equivalent citations: AIR1986ORI281, 1986(II)OLR299, AIR 1986 ORISSA 281
JUDGMENT L. Rath, J.
1. The plaintiffs are the appellants against a confirming judgment. The suit was brought for declaration of title confirmation of possession and for permanent injunction restraining the respondent-defendant from interfering with the possession of the appellants-plaintiffs.
2. Briefly stated the appellants' case is that the disputed land is part of plot Nos. 5656 and 5657 and measures 50 cubits of length from North to South and 1 1/2 cubits width from East to West and on it stands the western wall of the appellants' row of houses (consisting of courtyard, back row of houses and front row of houses) and a fence in the back yard towards the north of the house. It is the appellants' case that the suit land and the wall constitute the western boundary of the said two plots which are ancestral homestead of the appellants and they have been all along possessing and maintaining the same as also the fence. The thatches of the front row and the back row of the houses of the plaintiffs rest on the said wall. The appellants wanted to demolish the western wall which was necessary for the purpose of reconstruction of the back row of houses which they had already demolished, but however in the process were obstructed by the respondent who claims the wall and the fence to be his own.
3. The defendant contested the suit and claimed the suit land, the disputed wall and the fence as belonging to him and as appertaining to plots Nos. 5658 and 6768. His case is that the disputed wall constitutes the eastern wall of his house and which he is in possession all along and has been maintaining it. The thatch of his house rests over wall. He has also created the fence and maintaining it.
4. A Civil Court Commissioner (D.W. 4) had been deputed to demarcate the suit land and though his report was in favour of the appellants, yet on an analysis of his evidence both the trial court as well as the lower appellate court rejected his report. Both the courts however came to find that the disputed land is partly a wall, and partly fence and both the parties have equal right over the same. The learned Subordinate Judge came to the conclusion that although it is not the case of either party that the wall and the fence are common to both, yet there is sufficient evidence as discussed by the learned Munsif, to prove that as a matter of fact the wall and the fence are common to both the parties. He found that the evidence of the witnesses examined by both the parties is of no help to determine as to which party is the exclusive owner of the disputed wall and the fence and hence held that they are common to both the parties. It is even the admitted case of the appellants that the face (surface) of the disputed wall on the side of the respondent is maintained by him vide evidence of appellant No. 2 examined as P.W. 2. Having come to such conclusion both the courts below have dismissed the suit, the appellant having failed to establish exclusive title and possession to the disputed land, wall and the fence.
5. In view of the above concurrent finding of facts, the only question which falls for consideration is whether, in view of the finding that the disputed property was a common wall and fence, the courts below should have declared the appellants' joint title to the suit property instead of dismissing the suit. During hearing, Miss. R. Das, appearing for the appellants wanted to canvass other questions like admission of P.W. 2 having been wrongly relied upon by the lower appellate court and that such court having not discussed any oral evidence, It was urged that both the courts below have ignored the oral evidence on record and hence the judgments are liable to be set aside. For the purpose, reliance was placed on AIR 1980 'SC 1754 (Madan Lal v. Mst. Gopi). However, on the fact of it, the decision has no application. It was observed in the very judgment by their Lordships that the judgment properly understood is not a charter for interference by the High Courts with the findings of facts recorded by the final court of facts. When the situation is of exceptional character like where the evidence which was incapable of supporting more than one conclusion was considered as justifying a conclusion which no reasonable Tribunal could rationally reach, the finding recorded by the final court of facts may be disturbed. This is however not a case of that kind.
6. Thus, as has been stated above, the only question which requires consideration is whether since the wall and the fence are common to both the parties, the suit of the appellants was liable to have been dismissed since they failed to prove exclusive title and possession to the property, or whether the suit should have been decreed to the extent of declaring joint title and possession of the appellants and respondent and whether permanent injunction should have been granted to the extent of interference with the joint possession of the appellants.
7. While it has been urged by the appellants that such a decree should have been passed instead of dismissing the suit. Mr. S.P. Mishra, learned counsel appearing for the respondent has raised the following contentions : --
(i) It is not open to the court to make out a third case.
(ii) The parties cannot be permitted to lead evidence beyond the pleadings.
(iii) The plaintiffs having never come with a case of common title or joint possession, no such decree should be passed.
(iv) The trial court only found joint possession as the appellate court.
Besides it was also urged by Mr. Mishra that the very finding regarding common title or joint possession is open to challenge since both the courts below have only made generalised statements regarding the finding of joint possession.
8. The submission made by Mr. Mishra that it is not open to the court to make out a third case and that the parties cannot be permitted to lead evidence beyond the pleadings is well known and unexceptionable. The matter stands concluded by a series of decisions of the Privy Council and the Supreme Court vide AIR 1930 PC 57(1) (Siddik Mahomed Shah v. Mt: Saran), AIR 1942 PC 64 (Lala Hem Chand v. Lala Pearey Lal), AIR 1953 SC 235 (Trojan & Co v. RM NN. Nagappa Chettiar), AIR 1966 SC 1861 (Bhagat Singh v. Jaswant Singh), ull summarised in AIR 1975 Pat 168 (Smt. Ramsurat Devi v. Smt. Satraji Kuer). The substance of all these decisions based on the principles of Order 6. Rule 2, C.P.C. are that no amount of evidence could be looked into upon a plea which was never put forward and that the procedure in allowing the parties to adduce evidence on the point, which arose on the evidence led by the parties, but were not raised in the pleadings or issues was irregular, and should not be allowed without amending the pleadings and raising necessary issues. Without an amendment of the plaint, the court was not entitled to grant relief which was not asked for. In AIR 1954 SC 758 (Sheodhari Rai v. Suraj Prasad Singh) it was held that it was not right for the trial court to make out a new case for the defendant which was not only (not?) made in the written statement hut was wholly inconsistent with the title set up by the defendant.
9. The question raised here however is substantially different. Order 7. Rule 7. Civil P.C. allows the plaintiff to claim relief either simply or in the alternative, and further vests power in the court to grant either general or other relief to the same extent as if it had been asked for where the court thinks it just and proper and the same rule also applies to any relief claimed by the defendant in his written statement. The court has thus inherent power to grant either general relief or other relief which appears to it to be legitimate and proper in any case even though such reliefs have not been specifically asked for. This power of the court which even though may appear to be inconsistent with the principles urged by Mr. Mishra. namely, that the court cannot make out a third case or that the parties should not be allowed to lead evidence which is not in accordance with their pleadings, yet on a closure scrutiny there is no inconsistency. In AIR 1966 SC 735 (Bhagawati Prasad v. Chandra Maul) it was held as follows : --
"There can be no doubt that if a party asks for a relief on a clear and specific ground, and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new.
xxxxx But in considering the application of this doctrine to the facts of the present case, it is necessary to bear in mind the other principle that considerations of form cannot override the legitimate considerations of substance. If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely forma and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is : did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."
10. Thus the substance of the question is that when the question relates to the title of both the parties and evidence has been led about it and both the parties are aware of the same, the mere technicality that the issue was not expressed in the pleadings is of formal nature and should not be allowed to preclude the court from granting the relief. The real question for consideration is to consider; whether by such process one party is allowed to spring a surprise on the other party inasmuch as the other party had no notice and had no opportunity to lead evidence at the trial. Such a case may arise where the plea raised by either of the parties is wholly inconsistent and can by no reasonings co-exist with the original plea taken.
11. In the present case, the plaintiffs-appellants' claim in the suit was for declaration of exclusive title, confirmation of possession and permanent injunction against the respondent. In such a suit the plaintiffs could have come with the alternative prayer that in case they are found to lack in exclusive title and possession, their joint title and possession along with the defendant be declared and injunction to the extent of non-interference of their joint possession be granted. Such a plea would not have been inconsistent in any way with the case of the appellants. As a matter of fact during the course of argument. Mr. Mishra conceded that the appellants could have amended the suit for grant of such relief but he urged that without such amendment, the relief cannot be granted.
12. The property in question is a wall and a fence separating the houses of the appellants and the respondent. Admittedly, the cases of both the parties are that the thatches of their respective houses rest on the wall. Both the parties have led evidence that they are maintaining the wall and the fence. Neither of the parties have been able to prove their exclusive title and possession to the property even though they were at issue on the question and being fully conscious of their respective rights have gone into the trial of the suit and have led evidence. There is thus no infirmity in the findings of the courts below regarding the wall and the fence being common and such finding does not take the defendant-respondent by surprise. Of course, in granting reliefs which have not been specifically asked for, the powers of the court under Order 7, Rule 7, Civil P.C. are circumscribed by the necessity that larger reliefs than what has been claimed by the plaintiff cannot obviously be granted. But where the plaintiff has come with a claim ,of larger relief but is found entitled to a lesser one, in appropriate case the suit need not be dismissed and such lesser relief may be granted to him if it is found to be just and proper and further such reliefs are not wholly inconsistent with the original claim nor takes the defendant by surprise so as to deprive him of the opportunity to lead any evidence to the contrary. In this view of the matter, I am of the opinion that the suit of the appellants was not to be dismissed in toto but that their joint title along with the respondent to the disputed property should have been decreed and also possession and injunction should have been granted to that limited extent. I am supported in this view by a decision reported in AIR 1951 Mad 1047 (Uddi Rajamma v. Poornappagari Padmayatamma) wherein it was found that where the plaintiff had come with a case of exclusive title to the property to the exclusion of her sister, it was held that the suit need not be dismissed because the plaintiff prayed for reliefs much larger than what she was entitled to but that the reliefs can be granted for declaration that she is entitled to half a share to the suit property while her sister was entitled to the other half share. In a case decided by the Privy Council reported in (1890) ILR 17 Cal 814 (Khagendra Narain Choudhury v. Matangini Devi) it was held by the Privy Council that in cross suits between the owners of adjoining estates, each claiming against the other to be entitled to and to be put into possession of the property situate on the boundary between their estates, there was sufficient evidence of possession and title having been held by both which would support the conclusion that each had a claim to an equal moiety to which each should be declared entitled. Again, in AIR 1952 Nag 202 (Gangaram Ramchandra v. Butrusao) a similar question arose and it was held that a suit for exclusive possession of 16 annas can be turned into a suit for partition and possession of such share as may be determined to belong to the plaintiff if the defendants contend, or it is found that the plaintiff is not entitled to the whole but only to a part of it. The view is also supported by AIR 1954 All 191 (Pandohi Ahir v. Faruq Khan). In AIR 1963 Andh Pra 78 (Pandavala Narasimham v. Pendyala Venkata. Narasimha Rao) it was held that in a suit for possession of certain property with sole and exclusive right therein, a decree for partition could be granted notwithstanding the absence of alternative prayer to such effect or even without an amendment to such effect, if such relief would not result in much prejudice or injustice to the other side.
13. The other contention raised by Mr. Mishra that the finding regarding common title or joint possession recorded by the Courts below was without any basis and that such finding was too generalised and not warranted in law, is not necessary to be examined in detail since I find that the finding has been reached on proper analysis of the evidence and cogent reasoning and there is no reason to depart from the same at this stage.
14. In the result, the appeal is allowed and the decree passed by the courts below is modified to the extent that the appellants have joint title and possession over the suit property and that the appellants are entitled to permanent injunction restraining the respondent from preventing the appellants from exercising their joint possession over the disputed property. The appellants would be entitled to maintain their side of the wall and fence and exercise such rights of possession over the same as are necessary for their peaceful joint possession of the property. The suit is accordingly decreed to the extent specified above. There shall be no order as to costs.