Madras High Court
Arunachalam Pillai vs Ram Mudaliar (Died) And Three Others on 20 March, 1998
Equivalent citations: 1998(2)CTC146, (1998)IIIMLJ573
ORDER
1. 1st Defendant in O.S. No.431 of 1977, on the file of District Munsif, Kulithalai, is the appellant. The plaintiff who is the 1st respondent in this second appeal died and his legal heirs have been impleaded as respondent Nos. 3 and 4. The parties herein will be referred to in accordance with their rank in the suit.
2. The 2nd defendant is a temple, under which both the plaintiff and 1st defendant are lessees. The suit filed by the plaintiff was one for declaration that the lane marked as A B E F in the plan attached to the plaint belongs to the plaintiff and for a permanent prohibitory injunction restraining the 1st defendant, his men and agents from in any way interfering with the plaintiff's peaceful possession and enjoyment of the suit lane, and in the alternative to recover possession of the suit lane from the defendant and to recover future profits and costs of the suit. As I said earlier, both the plaintiff and 1st defendants are lessees under the 2nd defendant, and they have constructed separate houses. Both of them are in possession of the respective buildings. It is the further case of the plaintiff that he is entitled to a site of 42 feet east to west and 70 feet to south which is shown as A B C D plot in the plan attached to the plaint. According to the plaintiff, the suit lane is 5 feet east-west and separately marked as A B E F in the plaint plan and the same is running on the west of the house of the plaintiff. It is his case that he is in exclusive possession and enjoyment of the same for the last more than 40 years. It is further stated that the 1st defendant is entitled to only the site of 37 feet east west and 70 feet north-south situate on the western side of the plaintiff's site, where he has constructed his house. That portion of the 1st defendant's property is marked as A B G H in the plaint plan. It is further stated that separating the two plots of the plaintiff and 1st defendant, there was a thorny fence and in course of time it got effaced, and when the plaintiff wanted to reconstruct the fence, the same was objected to by the 1st defendant. The suit was therefore, necessitated for the reliefs stated above.
3. In the written statement filed by the 1st defendant, he disputed the claim of the plaintiff. According to him, the suit lane is part of his property and the plaintiff has no right over the same. He alone is in possession of the same for the last 50 years. In fact, certain attempts were made by the plaintiff to interfere with his possession, which necessitated to file a complaint before the local police. It was at that time, the plaintiff filed the suit.
4. In the written statement filed by the 2nd defendant it contended that it is an unnecessary party, since no relief has been sought for against it. It prayed for its costs.
5. The trial Court on the above pleadings took oral an documentary evidence. On the side of the plaintiff Exs.Al to A5 were marked and Exs.B1 to B13 were marked on the side of the defendants. As Court Exhibits, Exs.C1 to C4 were marked, which are the Commissioner's reports and plans. The plaintiff got himself examined as P.W.1 and an independent witness was examined as P.W.2. The 1st defendant got himself examined as D.W.1, apart from examining other two independent witnesses.
6. The trial Court as per the revised judgment dated 22.6.1981 dismissed the suit. It came to the conclusion that the plaintiff is not entitled to any right nor he is in possession of the suit lane. It may be stated that the suit was originally dismissed as per judgment dated 5.7.1978, on which an appeal has been taken by the plaintiff as AS No.123 of 1978, on the file of Subordinate Judge at Karur. Some additional evidence was let in before the appellate Court, and consequently the judgment of the trial Court was set aside and remanded with a direction to the trial Court to give reasonable opportunity to the parties to adduce evidence. It was after remand, some more evidence was let in by the parties and the revised Judgment was passed, dismissing the suit once again.
7. Against the revised judgment dismissing the suit, an appeal was taken before the lower Appellate Court as AS No.137 of 1981, on the file of Subordinate Judge at Karur. The lower Appellate Court partly allowed the appeal, and held thus:-
"I am of the view that neither the plaintiff nor the first defendant has established their exclusive title to the suit lane and the plaintiff is not entitled to get any declaration or injunction or in the alternative for recovery of possession of the property."
The lower Appellate Court did not end with that finding, but further went on and said thus:-
"There is also no material to come to the conclusion that the first defendant has perfected his title to the suit lane by adverse possession. No construction has been made by the first defendant and the suit lane portion remains only a vacant site. Hence it cannot be said that the first defendant alone has been exclusively using the same ousting the right of the plaintiff. Taking into consideration the available materials a finding can be given that the lane portion measuring 6' 4" width east west has to be kept in common for the convenient enjoyment of the plaintiff as well as the first defendant to the entire length. Hence the points are answered accordingly."
The decretal portion of the judgment of the tower Appellate Court reads thus:-
"In the result the appeal is allowed in part and the Judgment and decree of the lower Court are set aside and declaration is given that the suit is a common lane belonging to the plaintiff and the first defendant and each should enjoy the same without causing detriment to the other person. The drainage of the plaintiff running in the lane portion has to be removed and he should make separate provision for his drainages water. In other respect the suit is dismissed. In the peculiar circumstances of the case the parties shall bear their costs throughout."
8. The 1st defendant has preferred this second appeal against the said judgment, and the following substantial questions of law have been raised at the time of admission:-
" 1. Whether the lower appellate Court is in error in holding that the suit lane is a common lane, which is not the case of either party.
2. Whether the lower appellate Court is right in decreeing the suit when itself has found that the plaintiff failed to establish his claim of title to the suit lane.
3. Whether the lower appellate Court is right in holding that the defendant has not prescribed title by adverse possession merely because he has not put up any construction on the suit lane."
9. The concurrent judgment of the Courts below is that the plaintiff has failed to prove his title to the property and it has also been found that the plaintiff is not entitled either to injunction or for recovery of possession. The suit filed by the plaintiff is only for declaration of title and consequential injunction and in the alternative, for recovery of possession. The plaintiff claim exclusive title over the suit lane and the same is found against the plaintiff by both the Courts below. The question that arises for consideration in such cases is whether the lower Appellate Court was justified in granting a relief, which the plaintiff did not want or for which there is no foundation either in the pleadings of the plaintiff or in the written statement of the 1st defendant. In this connection, it may also be noted that the 1st defendant never admitted that the plaintiff has right over the suit lane. He also claimed exclusive title on himself, though the same was put only as a defence. He never wanted a declaration to be granted in that behalf. He claimed exclusive title, denying the title of the plaintiff and what he prayed was the dismissal of the suit. There is no admission on his part anywhere in the pleading that the plaintiff is entitled to any right over the lane. In such cases, is the Court competent to grant the relief declaring the lane as a common lane.
10. Learned counsel for the appellant brought to my notice, an early decision of our High Court reported in, Sambayya and another v. Gopalakrishnamma, ILR (15) Madras Series 489. The plaintiff therein claimed that the lane absolutely belonged to him and he prayed for a declaration and injunction restraining the defendants from interfering with his possession. The trial Court held that the plaintiff has miserably failed to prove his exclusive title or possession. But taking into consideration the nature of the lane, it held that both the plaintiff and defendants are entitled to make use of the lane, and the same was challenged before this Court. A Division Bench of this Court held thus:-
"The Subordinate Judge has found that the lane does not belong to the respondent.
Instead of dismissing the suit on that finding, he has declared that both plaintiff and defendants have rights of easement by long use over the lane, and has decreed that neither party should interfere with the other in the exercise of this right.
In a suit brought to establish a right of ownership of property, it is not competent to the Court to enter into and decide the question of right to an easement over the same.
Though, as observed in Virasvami Gramini v. Ayyasvami Gramini, 1 MHCR 477, the Courts are bound to take into consideration all the rights of the parties to a suit, both legal and equitable, and given effect thereto by their decrees, as far as possible, they are not at liberty to grant a relief either not prayed for in the plaint, or that does not naturally flow from the ground of claim as stated in the plaint.
Neither the pleadings nor the issues in the present case suggest a right of easement and the parties cannot be fairly presumed to have proceeded to trial with reference to such right,"
11. In, Govindaraj v. Kandaswami Goundar and another, , the Court has considered how far a new case be entertained. In that case, the plaintiff contended that there is a partnership between himself and the defendants, when defendants denied the same who pleaded that they are only agents. The suit was dismissed on the ground that the partnership was prohibited by law. A contention was taken by the plaintiff before the Appellate Court that since the defendants have admitted the agency, that create an accountable relationship and therefore, a decree for accounting could be granted. The said contention was rejected by this Court in paragraph 14 of the Judgment, which reads thus:-
"The other point raised by learned counsel for the appellant does not merit any serious consideration. The entire case of the plaintiff was rested on the existence of a partnership relationship between himself and the defendants. No doubt the existence of that relationship was denied by the defendants and they had also stated that they were the agents of the plaintiff to carry out his orders. It is clear law that the plaintiff cannot be allowed to abandon his own case, adopt that of the defendants and claim relief on that footing. If the plaintiff had put forward the case of agency it is possible that there might be other defences open to the defendants. It is sufficient in this connection to refer to the decision in Ramdayal v. Junmenjoy Coondoo, ILR 14 Cal 791 (FB) (H) where there Lordships have held:
'It would certainly be an unusual thing to allow a plaintiff, who was alleged one state of facts, as against the defendant who had denied that case and alleged another state of facts, to turn round and ask to be allowed to carry on the suit and claim relief on the ground that the defendant's statement of facts was true and his own false.'
12. A. N. Saha on the Code of Civil Procedure 5th Edition 1996, commenting on Order 7, Rule 7 has said thus:-
"It is the general law that relief to be granted by a Court must be based on pleadings. But considerations of form cannot override the legitimate consideration of substance. If a plea is not specifically taken and yet it is covered by an issue by implication and the parties knew that such pleas are 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 learned author further went on and said thus:-
"Deviation from the normal rule that a party can be allowed a relief only on the basis of pleading is rarely permissible. Only in exceptional cases it can be done when it can be postulated that the other side has unambiguously and unequivocally admitted completely the factual or the legal basis on which relief could be moulded. That is to say that it is the clear admission of opposite party in the pleadings that confers jurisdiction upon Court to award relief on a basis different from one covered by the issue on which parties went to trial."
The learned author has relied on the decision reported in, Nagayasami Naidu and others v. Kochadai Naidu and others, , for the said purpose. In paragraph 14 of the said Judgment, it has been held thus:-
"A party cannot be awarded relief on a basis not pleaded by him and on which there is no issue, merely taking advantage of some statements in the pleadings or in the evidence made or given for a different purpose and with reference to a different issue. Such deviation from the pleading is permissible, very rarely and only in exceptional circumstances, if it can be postulated that the other side has unambiguously and unequivocally admitted, completely the factual or the legal basis on which relief could be moulded. In other words, it is the clear admission of the opposite party in the pleadings that confers jurisdiction upon the court to award relief on a basis different from one covered by the issues on which parties went to trial."
13. In, Gobind Prasad Sinha v. Mst. Kulwanti and others, , a similar case came up for consideration. Both the plaintiff and defendant claimed independent right over the plot and the trial Court granted a decree for joint possession. That matter was taken in appeal. In paragraph 16 of the judgment, it has been held thus:-
"In the present case, the plaintiff as well as the contesting defendant both alleging independent right, title and interest over the disputed plot, it was not for the court of appeal below to make out a new case for the parties and to hold that the plaintiff and the contesting defendants were entitled to half and half and that they were in joint possession. The court cannot make out a new case for a party. It is true that the courts are bound to take into consideration all the rights of the parties to the suit, both legal and equitable, and give effect thereto by their decrees as far as possible but the courts are not at liberty to grant a relief either not sought for in the plaint or that does not naturally flow from the grounds of claim as stated in the plaint."
14. It is clear from the above decisions, that the jurisdiction of the Court to grant a relief must be based on pleadings or at least the opposite party must have admitted the right of the plaintiff in respect of the portion of the same. In this case, both the plaintiff and 1st defendant claimed exclusive title.
There is no alternative case for either of the parties. The 1st defendant has also not filed any counter claim and he has filed only written statement denying the right of the plaintiff. He claim exclusive right only as a defence to the plaintiffs claim and what he prayed for is only the dismissal of the suit. The question whether the plaintiff and defendant are entitled to equal right over the suit lane was not a matter in issue nor evidence let in that regard. Only because the suit lane lies in between the properties of the plaintiff and the 1st defendant, the Lower Appellate Court though that it has been commonly enjoyed by both of them. When the parties are not at issue and the relief granted by the lower Appellate Court is neither incidental to the main relief, following the decisions cited supra, I think that the relief granted was in excess of its jurisdiction. The relief does not flow either from the plaint claim or on the basis of any admission of the defendants. In such cases, the Court cannot grant a relief, as has been granted by the lower Appellate Court.
Consequently, the first substantial question of law raised in the Second Appeal has to be found in favour of the appellant. The lower Appellate Court has no jurisdiction to grant a declaration that the plaint lane is a common lane. On question No.2, it has to be held that when there is a finding that the plaintiff has failed to establish his case, it can only dismiss the suit and cannot grant a decree as has been done in this case. On question No.3, I hold that such question does not arise for consideration, since the suit has only to be dismissed.
15. In the result, the judgment of the Lower Appellate Court is set aside and that of the trial Court restored. The second appeal is allowed, however without any order as to costs.