Himachal Pradesh High Court
Pritam Singh vs Of on 13 December, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 91 of 2007 .
Judgment reserved on: 7.12.2016
Date of decision: 13. 12. 2016
Pritam Singh ...Appellant.
Versus
of
Krishan Chand and others ....Respondents
Coram rt
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No For the Appellant : Mr. K. D. Sood, Senior Advocate, with Mr. Rajnish K. Lal, Advocate.
For the Respondents : Ms. Devyani Sharma, Advocate, for respondents No. 1 to 9.
Tarlok Singh Chauhan, Judge The present appeal is directed against the judgment and decree passed by learned Additional District Judge, Fast Track Court, Hamirpur, H.P. in Civil Appeal No. 23 of 1999 on 30.11.2006 whereby he affirmed the judgment and decree dated 17.2.1999 passed by learned Sub Judge-II, Hamirpur, in Civil Suit No. 50 of 1991 RBT No.301 of 1994.
2. The brief facts as necessary for the disposal of the present appeal are that the respondents/plaintiffs (hereinafter referred to as the plaintiffs filed a suit against the appellant/defendant Pritam Singh and others for declaration and consequential relief of injunction. It was 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 15/04/2017 21:43:55 :::HCHP 2 averred by the plaintiffs that the land comprised in Khata No. 1 min Khatauni No. 5, Khasra Nos. 190, 191, 192, 193, 194 and 242, plots 6, .
measuring 145-82 sq.mtrs. as per Misal Hakiyat Bandobast for the year 1980-81, situated in Up-Mohal Ghurare, Tehsil and District Hamirpur (hereinafter referred to as the suit land) was recorded under the ownership of the plaintiffs and wrongly recorded under the possession of of the defendants. It was averred that previously the house of defendants No. 1 to 3 was situated over the suit land, which collapsed in the year rt 1976 and thereafter, the defendants migrated and settled near Pathankot (Punjab) and abandoned the suit land. It was averred that the defendants No. 1 to 3 were only licensee over the suit land and they were allotted Shamlat land in village Masiana, Mouza Jangal Ropa, Tehsil and District Hamirpur. It was further averred that after the collapse of the house over the suit land the plaintiffs had been in continuous, open and peaceful possession of the same and the entries showing the defendants No. 1 to 3 in possession of the same are wrong and illegal and against the factual position on the spot. It was averred that on the basis of these wrong entries in favour of defendants No. 1 to 3 and at the instance of defendant No.4, they were threatening to take forcible possession of the suit land and the defendant No.4 also wanted to snatch the suit land from the plaintiffs. The plaintiffs requested the defendants several times not to interfere with the possession of the plaintiffs over the suit land and also to correct the revenue entries in their name, but they did not pay any heed to their requests and hence the suit.
3. The appellant/defendant filed the written statement and contested the suit on the ground of maintainability, cause of action, ::: Downloaded on - 15/04/2017 21:43:55 :::HCHP 3 valuation and estoppel. On merits, it was averred that the defendant is in possession of the suit land and the walls of the cow-shed of the .
defendant still exist on the spot. The plaintiffs have never remained in possession of the suit land. The defendant was not allotted any Shamlat land. It is admitted that the defendants are now residing at Mund, Tehsil Nurpur, but claimed that they frequently visit the suit land and look after it.
of The house and cattle shed had not collapsed as the walls still exist on the spot. The other allegations were denied.
4. rt The defendant No.4 filed separate written statement and stated that he had no connection with the suit land. The house of the defendants No. 1 to 3 existed over the suit land, but the defendants migrated from this place and house collapsed thereafter. Though, it was submitted that the defendants No.1 to 3 were in possession of the suit land but was not aware in which capacity they were in possession.
Moreover, he had expressed his ignorance about the possession over the suit land.
5. The respondents/plaintiffs filed replication in which they denied the allegations made in the written statement and reasserted the averments made in the plaint.
6. On 12.10.1992 the learned trial Court framed the following issues:
1. Whether the plaintiffs have no cause of action to file this suit/ OPD
2. Whether the plaintiffs are estopped by their act and conduct from filing this suit? OPD ::: Downloaded on - 15/04/2017 21:43:55 :::HCHP 4
3. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction, if so what is its .
value for this purpose? OPD
4. Whether the defendant is entitled for special costs under Section 35-A CPC? OPD
5. Whether the plaintiffs are entitled to the relief of of injunction as prayed for? OPP
6. Relief.
7. rt After recording the evidence and evaluating the same, the learned trial Court vide its judgment and decree dated 17.2.1999 decreed the suit of the plaintiffs and the defendants No. 1 to 3 were restrained permanently from interfering in the suit land in any way including to take its forcible possession.
8. Aggrieved by the judgment and decree passed by the learned trial Court, the appellant/defendant No.2 filed first appeal in the Court of learned Additional District Judge, Fast Track Court, Hamirpur, who vide judgment and decree dated 30.11.2006 dismissed the same.
9. Aggrieved by the judgment and decree passed by learned Courts below, the appellant filed the instant second appeal before this Court, which was admitted on 6.9.2013 on the following substantial questions of law:
"1. Whether the findings of the Court below are based on misreading and misconstruction of oral and documentary evidence as also the pleadings of the parties particularly the compromise Exhibit DW-4/A and the statements of witnesses Pritam Singh, Sunka Ram, Brij Lal as also Chuni Lal, Madho Ram and Roshan Singh?::: Downloaded on - 15/04/2017 21:43:55 :::HCHP 5
2. Whether the assumption that the defendant had abandoned the property and the plaintiff had become owner by adverse possession is sustainable in law in the absence .
of specific pleadings and proof of abandonment of possession and the inferences drawn are based on no evidence?
3. Whether the findings are based on inadmissible evidence and the rejection of the application of the defendant of under Order 18 Rule 17-A and allowing the plaintiff to led evidence in rebuttal and consideration thereof has vitiated the findings?
rt I have heard learned counsel for the parties and gone through the records of the case carefully.
10. Since all the aforesaid substantial questions of law are inter-
related and inter-connected, therefore, I proceed to dispose of the same through common reasoning.
11. Adverting to the pleadings, the plaintiffs/respondents in the suit had specifically mentioned that there was a house over the suit land which collapsed in the year 1976 and thereafter it was the appellant/defendants No.1 to 3, who were the licensee abandoned the suit land and were allotted Shamlat land in Village Masiana in Mauza Jangal-Ropa and even otherwise the defendants No.1 to 3 had already migrated from village Ghurare and settled at Mund near Pathankot.
12. In the written statement filed by defendant No.2 /appellant in the preliminary submissions raised objections regarding cause of action, valuation, estoppel and maintainability. On merits, it was averred that the defendant was not allotted any Shamlat land and that the defendants are ::: Downloaded on - 15/04/2017 21:43:55 :::HCHP 6 now residing at Village Mund, Tehsil Nurpur, but had been frequently visiting the suit land.
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13. However, during the pendency of the case before the trial Court, the appellant/defendant moved two applications for amendment of the written statement, the first was moved in October, 1996 for taking the plea of adverse possession and second application was moved in of February, 1997 for taking preliminary objections with regard to limitation.
Notably, both these applications were dismissed.
14. rt The appellant thereafter filed another application under Order 18 Rule 17-A CPC seeking permission to produce on record the original document dated 19.4.1941 and defence now set up by the appellant was that he had purchased the suit land from the predecessor-in-interest of the plaintiffs in the year 1940 and thus, the plaintiffs had lost their right, title or interest, if any, over the suit land. Even this application came to be dismissed, however, this Court is not concerned with the merits of the case, but is merely concerned with as to what actually is the defence of the appellant.
15. The appellant has not been able to show that he is in possession of the suit land much less in adverse possession thereof. As regards the compromise, the same admittedly has not been entered by the parties to the lis. Now, that the appellant has also taken the plea of adverse possession, inherent therein is the plea that someone else i.e. the respondents are owner of the property. What probably has been over-
looked by the appellant is that an action at law is not a game of chess, therefore, a litigant cannot prevaricate and take inconsistent positions. It is one of those fundamental principles of jurisprudence that litigants must ::: Downloaded on - 15/04/2017 21:43:55 :::HCHP 7 observe total clarity and candour in their pleadings. (Vide: Ritesh Tewari & Anr. v. State of Uttar Pradesh & Ors., (2010) 10 SCC 677; and Amar .
Singh v. Union of India and others (2011) 7 SCC 69).
16. As already observed earlier, the appellant has failed to lead any clear, cogent and convincing evidence to prove that he is in possession of the suit land.
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17. At this stage, learned counsel for the appellant would contend that even the claim of the plaintiffs/respondents is based on rt adverse possession. Therefore, inherent of such plea is that someone-
else is the owner of the suit land. I do not find any substance or merit in this contention as the appellant has infact misconstrued the pleadings to suit his convenience, whereas, no such plea of adverse possession infact has been taken by the plaintiffs, as would be evident from para-4 of the plaint, the relevant portion whereof reads thus:-
"the plaintiffs have been in continuous open peaceful possession of the land in suit as a owner".
18. Evidently, the plea of hostile animus is conspicuously absent and what in fact has been pleaded that after the appellant had abandoned the suit land in the year 1976, the plaintiffs have occupied the land openly and continuously thereafter.
19. Adverting to the rejection of the application under Order 18 Rule 17-A CPC filed, it would be noticed that this application was filed by the defendants to prove that the suit land had been purchased by the defendant/appellant from the predecessor-in-interest of the plaintiffs/respondents in the year 1940, but then this is not even the ::: Downloaded on - 15/04/2017 21:43:55 :::HCHP 8 pleaded case of the appellant and, therefore, the learned Courts below committed no illegality or irregularity by dismissing the application.
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20. A learned Division Bench of this Court of which I was a member had elaborately considered in detail the relevance of pleadings in State of Himachal Pradesh and others versus Baldev and others 2016 (1) SLC 361 and it was observed as under:-
of "38. While deciding a civil suit, the pleadings are the foundation of the case. The pleadings play an important role in making the judgment and decree and that is why it is said that the pleadings rt are the heart, soul and essential foundation of a judicial verdict. It is the bedrock of the judicial disposal.
39. In the instant case, at the cost of repetition, the plaintiffs-
respondents have not prayed for relief of compensation or recovery of possession, no such foundation was laid.
40. The Apex Court in the case titled as State of Orissa & Anr. versus Mamata Mohanty, reported in 2011 AIR SCW 1332, held that the relief, not founded on pleadings, cannot be granted. It is apt to reproduce para 35 of the judgment herein:
"35. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition that "as a rule relief not founded on the pleadings should not be granted." Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ. (Vide : Sri Mahant Govind Rao v. Sita Ram Kesho, (1898) 25 Ind. App. 195; M/s. Trojan & Co. v. RM. N.N. Nagappa Chettiar, AIR 1953 SC 235; Ishwar Dutt v. Land Acquisition Collector & Anr., AIR 2005 SC 3165 : (2005 AIR SCW 578); and State of Maharashtra v. Hindustan ::: Downloaded on - 15/04/2017 21:43:55 :::HCHP 9 Construction Company Ltd., (2010) 4 SCC 518 : (2010 AIR SCW 2265)) "
41. The parties, the Courts of first instance, the Appellate .
Courts or the Revisional Courts cannot travel beyond the pleadings in view of the mechanism provided in CPC, which provides as to what procedure is to be followed after trial stage, i.e. after framing the issues, in terms of Order XIV CPC and how it has to be taken to its logical end after framing the issues.
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42. The Apex Court in the case titled as Hari Chand versus Daulat Ram, reported in AIR 1987 Supreme Court 94, held that when the plaintiff fails to prove his case as pleaded in the plaint, rt the relief cannot be granted by the Court, which is neither pleaded nor prayed. It is apt to reproduce para 11 of the judgment herein:
"11. On a consideration of all the evidences on record it is clearly established that the alleged encroachment by construction of kuchha wall and khaprail over it are not recent constructions as alleged to have been made in May 1961. On the other hand, it is crystal clear from the evidences of Ramji Lal P.W. 1 and Daulat Ram D.W. 1 that the disputed wall with khaprail existed there in the disputed site for a long time, that is 28 years before and the wall and the khaprail have been affected by salt as deposed to by these two witnesses. Moreover the court Amin's report 57C also shows the said walls and khaprail to be 25-30 years old in its present condition. The High Court has clearly come to the finding that though the partition deed was executed by the parties yet there was no partition by metes and bounds. Moreover there is no whisper in the plaint about the partition of the property in question between the co-sharers by metes and bounds nor there is any averment that the suit property fell to the share of plaintiffs vendor Ramji Lal and Ramji Lal was ever in possession of the disputed property since the date of partition till the date of sale to the plaintiff. The plaintiff has singularly failed to prove his case as pleaded in the plaint."
43. The Apex Court in the case titled as Bachhaj Nahar versus Nilima Mandal & Ors., reported in 2009 AIR SCW 287, held that the Court cannot, on finding that the plaintiff has not ::: Downloaded on - 15/04/2017 21:43:55 :::HCHP 10 made out the case put-forth by him, grant some other relief. It is apt to reproduce para 12 of the judgment herein:
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"12. It is thus clear that a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contains the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence of thereon. As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently rt put forward and that the parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise. The principles laid down in Bhagwati Prasad and Ram Sarup Gupta (supra) referred to above and several other decisions of this Court following the same cannot be construed as diluting the well settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded, only when one of the parties raises the same at the stage of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and had led evidence on that case.
Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, suo motu."
44. The pleadings and particulars are necessary to enable the Court to decide the rights of the parties in the trial.
45. The Apex Court in the case titled as National Textile Corporation Ltd. versus Nareshkumar Badrikumar Jagad & Ors., reported in 2011 AIR SCW 6180, has laid down the same principle. It is apt to reproduce para 7 of the judgment herein:
"7. Pleadings and particulars are necessary to enable the court to decide the rights of the parties in the trial. Therefore, ::: Downloaded on - 15/04/2017 21:43:55 :::HCHP 11 the pleadings are more of help to the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate .
evidence on the said issue. It is a settled legal proposition that "as a rule relief not founded on the pleadings should not be granted". A decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ.
of (Vide: M/s. Trojan & Co. v. RM N.N. Nagappa Chettiar, AIR 1953 AIR 235; State of Maharashtra v. M/s. Hindustan Construction Company Ltd., AIR 2010 SC 1299; and Kalyan rt Singh Chouhan v. C.P. Joshi, AIR 2011 SC 1127)."
The substantial questions of law are answered accordingly.
21. In view of the aforesaid discussion, there is no merit in this appeal and the same is accordingly dismissed, so also the pending application(s), if any, leaving the parties to bear their own costs.
(Tarlok Singh Chauhan) th December 13 , 2016. Judge (GR) ::: Downloaded on - 15/04/2017 21:43:55 :::HCHP