Bombay High Court
Late Kakasaheb Mhaske Medical ... vs Nagapur Masjid Trust Thro. Its Trustee ... on 8 May, 2026
2026:BHC-AUG:21248
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 879 OF 2018
1] Late Kakasaheb Mhaske Medical Foundation
Regn. No.3064, Ahmednagar &
through its Trustees.
2] Dr.Subhash Kakasaheb Mhaske,
Age: 66 years, Occ : Medical Practitioner
3] Mrs.Sumati Subhash Mhaske,
Age: 62 years, Occ : Medical Practitioner,
Appellant no. 2 and 3 R/o. Near T.V. Center,
Punyayi Bungalow, Opposite Zalani Hospital,
Tarakpur, Ahmednagar.
4] Jayant Eknath Shinde,
Age: 51 years, Occ : Service,
R/o. T.V. Center, Professor Colony,
Ahmednagar.
.. APPELLANTS
[Orig.Defendant Nos.1 to 3 & 5]
VERSUS
1] Nagapur Masjid Trust,
Trust PTR No.B258(ANR)
Nagapur, Ahmednagar,
Through its trustees.
2] Sayyad Abbass Babulal,
Age: 65 years, Occ : Worker.
3] Sayyad Babulal Papamiya,
(Dead-deleted).
4] Sayyad Chand Abbas,
Age: 33 years, Occ : Service
2
5] Sayyad Vajir Abbas,
Age: 31 years, Occ : Business.
6] Sayyad Asif Abbas,
Age: 35 years, Occ : Business
All above R/o. Wadgaon Gupta,
Taluka & District Ahmednagar.
7] Vithalrao Kisanrao Mhaske,
Age: 51 years, Occ : Social Work,
R/o. Siddhartnagar, Laltaki,
Prayatna Bungalow, Ahmednagar.
8] Ramnath Laxman Wagh,
Age: 71 years, Occ : Social Work,
R/o. Raigad Burudgaon Road,
Ahmednagar.
9] Sayyed Akbar Babulal,
Age: 56 years, Occ : Worker,
R/o. Wadgaon Gupta,
Taluka & District Ahmednagar.
[Respondent Nos.7 to 9 deleted
as per Court's Order dtd.01.07.2025]
.. RESPONDENTS
...
Mr.Anil Sakhare, Senior Advocate i/b.Mr.Y.V.Kakade,
Advocate for the appellants.
Mr.Nikhil Sakhardande, Senior Advocate a/w.
Mr.Hrishikesh Chitaley, Mr.Sankent Joshi, Mr.Abhimanyu
Menon, Mr.Ashish Venugopal, Advocates i/b. Mr.S.V.Dixit,
Advocate for the respondent nos. 1 & 5.
Mr.N.V.Gaware, Advocate a/w. Mr.S.N.Gaikwad, Advocate
holding for Mr.S.S.Kotkar, Advocate for respondent no.4.
Mr.V.D.Salunke, Advoate for applicant-intervenor.
...
3
CORAM : ARUN R. PEDNEKER, J.
DATE : 08.05.2026
JUDGMENT :
1] By way of present Second Appeal, the appellants [original defendants] are challenging judgment and order dated 10.10.2018 passed by the District Judge-6, Ahmednagar in Regular Civil Appeal No.118/2017 thereby decreeing the suit for eviction by setting aside the judgment dated 15.03.2017 passed by the Civil Judge Senior Division, Ahmednagar in Regular Civil Suit No.273 of 2005.
2] During the pendency of this Second Appeal, the decree passed by the trial Court is executed and possession of the suit property is handed over to the plaintiffs. 3] This Court, by order dated 16th July, 2025, admitted the present Second Appeal on the following substantial questions of law :
[1] Whether the learned Lower Appellate Court has committed grave error in law by exceeding 4 jurisdiction by allowing appeal in absence of pleadings by granting decree of possession in the absence of plea of denial of title of plaintiff in suit ? [2] Whether the notice of termination of tenancy dated 21.08.2004 before filing the suit is invalid being contrary to the terms and conditions of the mortgage deed executed by respondent/plaintiffs? [3] Whether the judgment and decree of first appellate court militates with provisions of Section 111 of the Transfer of Property Act, in absence of specific disclaimer of landlords title?
[4] Whether the impugned decree is hit by variance between the pleadings and proof and whether relief can be granted at variance with cause of action pleaded in suit?
[5] Whether the impugned decree of possession is beyond pleadings and in absence of cause of action ? [6] Whether impugned decree is perverse and suffers from lack of foundation in pleadings and evidence?
Brief facts leading to filing the present Second Appeal are as under:
4] The plaintiffs' trust is registered in the year 5 1970. The primary objectives of the plaintiffs' trust were restricted to Muslim religious purposes and the same was later on expanded in 1996 to other social causes with approval of the authorities. The appellant - defendants' trust is registered in the year 1984 and is established with wide-ranging charitable, educational and medical objectives.
5] The plaintiff trust owns land at Nagapur, District Ahmednagar. On 22.05.1992, the Charity Commissioner granted formal sanction under Section 36 (1)
(b) of the Maharashtra Public Trusts Act for lease of the said land for 99 years to the defendants. Thereafter on 01.07.1992, the plaintiffs executed registered lease deed, granting defendants' possession of the land for 99 years for usage of the land for charitable and educational purposes.
6] On 21.08.2004, the plaintiffs issued legal notice to the defendants for termination of lease, citing multiple material breaches (sub-leasing, profiteering, waste) and declaring that the tenancy stood forfeited under the 6 Transfer of Property Act, 1882. On 02.09.2004, the defendants replied to the legal notice denying all the allegations of breach, asserting that ancillary operations (Credit Society, Canteen) were necessary for the educational campus and characterized the plaintiff's action as motivated by 'ill-will' after denial of employment requests to the heirs / relatives of the plaintiff trustee. 7] On 30.11.2004, deadline for vacating premises expired. As such, the plaintiff trust passed a Resolution on 17.12.2004 formalizing the decision to proceed with litigation following the defendant's non-compliance with the termination notice. On 27.07.2005, the plaintiffs filed Regular Civil Suit No.273/2005 before the Civil Judge Senior Division, Ahmednagar, seeking possession of the land, accounts, mesne profits and fixation of standard rent. 8] The case put up by the plaintiffs in the plaint is that the suit property is situated at Nagapur, District Ahmednagar, bearing Survey No.144, admeasuring 6 H. 68 R. the suit property is Deosthan Inam Class-III land. The suit 7 property was given on lease of 99 years to the defendants from 1st July, 1992. The lease deed was executed on the following primary terms and conditions :
i] The suit property shall not be converted to non-agricultural use;
ii] No construction shall be undertaken without prior permission.
iii] The lessee shall not cause any loss or damage to the trust property.
iv] The property shall not be misused.
v] The lessee shall not transfer the leasehold interest.
vi] The lessee shall not sub-let the property. vii] The lessee shall not create any third party rights or interests in the suit property. viii] No construction shall be carried out without prior permission of the lessor.
ix] The land shall be utilized solely for educational and charitable purposes and x] No commercial or profit-oriented activities shall be carried out.
9] It is further contended that the defendants violated terms and conditions of the lease and that certain portions of the leasehold land was given on rent basis and 8 that there is violation also of the conditions of the lease. There is destruction of 300 to 400 fruit bearing trees and the defendants had made profit from the said trees. Some of the part of the land is given to the Patsanstha on rent basis by taking pagadi. It is further stated in the plaint that the plaintiffs have suffered loss of lakhs of rupees and that the land was given only for educational purposes for meager rent of Rs.2,000/-. There is misuse of the land and lakhs of rupees is earned by the defendants. In the year 1993-94, the Charity Commissioner has expanded the objects of the plaintiff trust. As such, the suit was filed seeking possession of the suit property from the defendants. 10] The defendants filed written statement and defended the suit. With reference to para no.2 of the plaint, it was denied by the defendants that the land still remained Inam, Class-III land. It was further stated that on 22.05.201992, the parties have executed lease deed. At the time of execution of the lease, the defendants have given cheque of Rs.50,000/- as donation to the plaintiff trust as 9 per direction of the Charity Commissioner. The defendants have submitted that after obtaining requisite Government permission for construction of buildings on the suit property, they are running Educational Institute on the suit property.
11] The defendants have further stated that the lease deed was executed after obtaining sanction from the Charity Commissioner. In view of execution of the lease deed, the revenue authorities mentioned the name of the defendant trust in 7/12 revenue record of Survey No.144 in the column of other rights. The defendants have obtained requisite Government permission and constructed buildings on the immovable leased property. It was further stated that the constructions are made in furtherance of the aims and objectives of the trust and that no provisions of lease deed are breached. It is stated that the defendants have made huge expenditure in leveling and constructing the buildings and that there are no breaches in respect of the lease deed. The defendants contended that there is no violation of 10 terms and conditions of lease and sought dismissal of the suit.
12] The trial Court formulated following issues and answered them accordingly:
ISSUES FINDINGS
1. Does the plaintiff proves that the suit Affirmative.
property described in plaint was leased
out to defendant No.1 Trust since 1st July, 1992 for 99 years.
2. Does the plaintiff further proves that Affirmative.
defendant no.1 executed registered lease- deed on 1st July 1992 in favour of the plaintiff ?
3. Does the plaintiff further proves that, Negative.
defendants have contravened the terms and conditions of the lease deed?
4. Does the plaintiff further proves that they Negative.
are entitled to get vacant possession of the suit property ?
5. Does the plaintiff is entitled for mesne Negative profit under order 20 Rule 12 (i) (c) of the Code of Civil Procedure ?
6. Does the plaintiff entitled to a relief of Negative possession and mesne profits as prayed ?
7. What order, relief and decree ? As per final order.
Additional Issues 11
8. Does the plaintiff prove that the notice Affirmative dated 2-9-2004 issued by it is legal and valid as per the provisions of law ?
9. Does the plaintiff prove that it has Does not survive obtained permission of the Charity Commissioner under section 50 of the Bombay Public Trusts Act ?
The trial Court by judgment and order dated 15.03.2017 dismissed the civil suit.
13] On being aggrieved by the judgment and order of the trial Court, the plaintiffs filed Regular Civil Appeal No.118/2017 against the aforesaid judgment dated 15 th March, 2017. The Appellate Court formulated the following points and answered accordingly :
Sr. Points Findings
No.
1. Whether it is proved that the defendant Yes.
trust has committed breach of the terms
and conditions of the lease?
2. Whether the notice dated 21.08.2004 Yes
issued on behalf of the plaintiff trust is legal and valid ?
3. Whether the plaintiff trust is entitled for Yes the decree of possession and mesne profits?
12
4. Whether any interference is warranted in Yes the judgment and decree passed by the learned Trial Court ?
5. What order and decree ? Appeal is allowed, as per final order.
14] Before the Appellate Court following 5 breaches of terms and conditions were pointed out, as under:
(i) The defendant trust sub-let part of suit property for Credit Co-operative Society, for Kamgar Bazaar and for a canteen, and thereby started doing business which is against the terms and conditions of the lease.
(ii) The defendant trust has started hospital in the suit property and thereby earning huge amount, which is against the terms and conditions of the lease.
(iii) The defendant trust has misused the suit property and started doing business, changing very purpose of lease.
(iv) The defendant trust is not working for charity.
(v) The defendant trust has denied the title of the plaintiff trust.
15] Thereafter, the Appellate Court confirmed the findings of the trial Court on the breaches noted 1 to 4 above. However, the Appellate Court rendered further 13 findings regarding denial of title by the defendant trust and on the point of denial of title, the suit was decreed. 16] Challenging the above judgment and order dated 10.10.2018 of the Appellate Court, the learned Senior Counsel Mr.Anil Sakhare instructed by Mr.Y.V.Kakade, learned counsel for the appellants submits that analysis of evidence and witness testimony reveals critical weaknesses in the respondent's - plaintiff's case that was not properly appreciated by the First Appellate Court. Mutation Entry No.9942 dated 01.11.2007 is particularly significant as it shows that the appellant - trust as 'Kabjedar' (possessor) and not as owner. This entry conclusively establishes that the appellant never claimed ownership of the land but consistently maintained its position as possessor under the lease deed. The entry negates any allegation of denial of title and demonstrates the appellant's acknowledgment of the respondent's - plaintiffs ownership while asserting its legitimate rights as lessee. It is further submitted that Order VI Rule 2 of the Code of Civil Procedure mandates that 14 pleadings must contain a concise statement of the material facts on which the party pleading relies. The respondent - plaintiff had primarily based their case on allegations of breach of lease terms such as subletting, business use, and misuse of land. However, the specific plea of denial of landlord's title attracting Section 111 (g) (2) of the Transfer of Property Act was not adequately and clearly pleaded in the plaint, nor the same was incorporated by the amendment to the plaint and thus, the First Appellate Court's decision to decree the suit on this unpleaded ground renders the entire decree legally unsustainable. 17] The learned counsel for the appellants further submits that the numerous judicial pronouncements clearly lay down that the Court cannot travel beyond the pleadings and grant relief on grounds not specifically raised by the parties. The approach of the First Appellate Court violates this cardinal principle and exceeds the permissible limits of judicial adjudication. The mutation entries and administrative actions undertaken by the appellants with 15 proper governmental approvals cannot constitute denial of title in the absence of specific pleadings to that effect in the plaint. It is further submitted that the relief granted by courts must correspond to the pleadings and must be based on a proper cause of action and that the Appellate Court has committed a grave jurisdictional error by granting relief which was neither pleaded adequately nor proved by the respondent - plaintiffs in the original suit. In this regard, the learned counsel for the appellants relies upon the judgments in the case of Trojan & Co. Vs. R.M.N.N. Nagappa Chettiar, reported in AIR 1953 SC 235, in the case of Bachhaj Nahar Vs. Nilima Mandal and another reported in [2008] 17 SCC 491 and in the case of Bharat Amratlal Kothari Vs. Dosukhan Samadkhan Sindhi, reported in AIR 2010 SC 475. The learned counsel submits that the substantial question of law noted at para 3 (1), (4), (5) and (6) which relates to the decree being granted on facts not pleaded in the plaint arises for consideration. The learned counsel for defendant also submits that there was no notice as is contemplated in Section 111 (g) (2) of the Transfer of 16 Property Act and a decree based on non compliance of provision of 111 (g) (2) of the Transfer of Property Act cannot be sustained. The learned counsel thus submits that the question of law framed at para 3 (2) and (3) relating to illegality of notice / absence of notice under Section 111 (g) (2) of the Transfer of Property Act arise for consideration. 18] Per contra, Mr.Nikhil Sakhardande, Senior Advocate instructed by Mr.S.V.Dixit, learned counsel for the respondent Nos.1 and 5-plaintiffs submits that the pleading gives reference of the denial of title particularly in para no.4 of the plaint and in para no.2A of the written statement. The mortgaged mutation entries are subsequently carried out. The mortgage deed is produced in evidence and there are no objections for the same. The mortgaged mutation entries are carried out indicating that the appellant- defendant being shown as owner is produced by the plaintiff, so also, the document is put in the cross examination. The parties knew the case and have led evidence on this aspect before the Court and the trial Court rendered the findings against the plaintiff whereas the 17 Appellate Court reversed the findings in favour of the plaintiffs. He further submits that the findings rendered by the Appellate Court is not perverse and that the parties were fully aware of the case put up against them. There is no prejudice caused to the defendants that they were never taken by surprise.
19] It is further submitted that the focal point of this matter is that the parties were fully aware of the case put up against one and another. There is no opposition to the plaintiffs' evidence, so also, the defendants' in his cross examination admitted the documents. There is no prejudice caused to the defendants as the evidence is available on record. He further submits that the evidence clearly indicates that the defendants had set up title in themselves by mortgaging the property and by making mutation entries showing themselves as owners of the property so as to avail other benefits. It is further submitted that the conversion of the land from Class-III to Class-II would have been only done by the plaintiffs being owners of the land. The defendants had no authority to make such an application in 18 respect of conversion of usage of property and shown his name as owners in the properties for taking loans as the property is leasehold property. Considering this aspect of the matter, substantial question of law does not arise for consideration before this Court.
The learned counsel for the respondent-
plaintiffs relies upon the judgments in the case of Kedarnath Agrawal (Dead) and anr. Vs. Dhanraji Devi (Dead) by L.Rs. And anr. Reported in 2004 AIR SCW 5789, Sheshambai (Dead) Thr. L.Rs. Vs. Chelur Corporation Chelur Buildings & Ors. Reported in [2010] 3 SCC 470, Pasupauleti Venkateswarlu Vs. The Motor & general Traders reported in [1975] 1 SCC 770, Gaiv Dinshaw Irani Vs. Tehmtan Irani reported in [2014] 8 SC 294, Sushilkumar Kamalnarayan Jaiswal Vs. Awatarsingh Teneja reported in 2023 SCC Online Bom3017, Chandrabhan Vs. Saraswati reported in [2022] 20 SCC 199, Santosh Hazari Vs. Pursuhottam Tiwari reported in AIR 2001 SC 965 and in the case of Thiagrajan Vs. Venugopalaswamy B. Koil reported in AIR 2004 SC 1913.
1920] Mr.N.V.Gaware, learned counsel appearing for the respondent nos.4 has adopted the argument of the learned counsel appearing for the plaintiffs. CONSIDERATION :
21] The first question that needs to be decided as noted is whether the Appellate Court would have rendered finding on 'denial of title' without there being pleadings to that effect in the plaint. The questions i.e. questions nos.(1), (4), (5) and (6) as noted in para no.3 above are overlapping and are thus decided together. The law on the aspect of the evidence being considered beyond the pleadings and findings rendered thereon is elaborately discussed in the various judgments as relied by the plaintiffs and defendants and are noted below for ready reference:
22] The Hon'ble Supreme Court in the case of Srinivas Raghavendrarao Desai (Dead) by Lrs Vs. Kumar Vamanrao alias Alok and others reported in 2024 SCC OnLine SC 226 held, as under :20
24. ".....the High Court committed a grave error in placing reliance upon the partition allegedly effected in the year 1965, in terms of which Schedule 'A' properties were allotted exclusively to the share of defendant No. 1. The fact remains that it is not even the pleaded case of the plaintiffs in the suit that there was any partition of the family properties in the year 1965...
25. There is no quarrel with the proposition of law that no evidence could be led beyond pleadings. It is not a case in which there was any error in the pleadings and the parties knowing their case fully well had led evidence to enable the Court to deal with that evidence. In the case in hand, specific amendment in the pleadings was sought by the plaintiffs with reference to 1965 partition but the same was rejected. In such a situation, the evidence with reference to 1965 partition cannot be considered".
23] In the case of Shivshankara and another Vs. H.P. Vedavyasa Char reported in [2023] 13 SCC 1, the Hon'ble Supreme Court has held in para no.64, as under :
64. In the decision in Duggi Veera Venkata Gopala Satyanarayana v. Sakala Veera Raghavaiah 16 this Court agreed with the observation made in the earlier decision in Hasmat Rai v. Raghunath Prasad17 that any amount of proof offered without pleadings is generally of no relevance. In Duggi Veera Venkata Gopala Satyanarayana 16 with respect to the aforesaid observations in Hasmat Rail this Court held, "we respectfully agree with the above statement of law and reiterate the same". Further, it is also relevant to refer to para 85.6 of the decision in Union of India v. Ibrahim Uddin 18, which reads thus: (Ibrahim Uddin case18, SCC p. 182) "85.6. The court cannot travel beyond the pleadings as no party can lead the evidence on an issue/point not raised in the pleadings and in case, such evidence has been adduced or a finding of fact has been recorded by the court, it is just to be ignored. Though it may be a different case where in spite of specific pleadings, a particular issue is not framed and 21 the parties having full knowledge of the issue in controversy lead the evidence and the court records a finding on it."
24] In the case of Ram Sarup Gupta (Dead) By Lrs Vs. Bishun Narain Inter College and others reported in [1987] 2 SCC 555, the Hon'ble Supreme Court has held in para no.6 as under :
6. The question which falls for consideration is whether the respondents in their written statement have raised the necessary pleading that the licence was irrevocable as contemplated by Section 60(b) of the Act and, if so, is there any evidence on record to support that plea. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law. In such a case it is the duty of the court to ascertain the substance of the pleadings to deter-mine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings considering this question observed :
If a plea is not specifically made and yet it is 22 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 formal 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. 25] In the case of Syed and Company and others Vs. State of Jammu & Kashmir and others reported in 1995 Supp (4) SCC 422, the Hon'ble Supreme Court has held without specific pleadings, evidence could not be led in since it is a settled principle of law that no amount of evidence can be looked unless there is a pleading. Therefore, without amendment of the pleadings merely trying to lead evidence is not permissible. 23 26] In the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) By Lrs and others reported in [2008] 4 SCC 594, the Hon'ble Supreme Court has observed that the only averment in the plaint that the plaintiffs were the owners of the suit property having purchased the same under sale deeds dated 9-12-1968, did not enable the court, much less a High Court in second appeal, to hold a roving enquiry into an oral gift and its validity or validation of ostensible title under Section 41 of the TP Act. No amount of evidence or arguments can be looked into or considered in the absence of pleadings and issues, is a proposition that is too well settled.
27] In the case of Bachhaj Nahar Vs. Nilima Mandal and another reported in [2008] 17 SCC 491, the Hon'ble Supreme court has held at para nos.12, 13 and 16, as under:
12. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has 24 repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take.
13. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when the defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief.
16. The principle was reiterated by this Court in Ram Sarup Gupta v. Bishun Narain Inter College³: (SCC pp. 562-63, para 6) "6. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet.
In order to have a fair trial it is imperative that the party should settle the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be 25 adopted to defeat justice on hair-splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings; instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite d of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal."
28] In the case of Sushilkumar Kamalnarayan Jaiswal (Pitariya) Vs. Awtarsingh s/o. Jawaharsingh Taneja reported in 2023 SCC OnLine Bom 3017, the Court has held it is a settled law that when both the parties went to the trial, knowing well the case of each others and lead evidence, even if a specific issue is not framed in that regard the decision would not vitiate.
29] In the case of Nagubai ammal and others Vs. B. Shama Rao and others reported in [1956] 1 SCC 698, the Hon'ble Supreme court has held at para no.9.2 and 9.3 as 26 under :
9.2. The question of lis pendens was raised by the plaintiff at the very commencement of the trial on 8-3-
1947 when he went into the witness-box and filed in his examination-in-chief Ext. J series, relating to the maintenance suits, the decrees passed therein and the proceedings in execution thereof, including the purchase by Devamma. This evidence is relevant only with reference to the plea of lis pendens, and it is significant that no objection was raised by the defendants to its reception. Nay, more. On 13-3-1947 they cross- examined the plaintiff on the collusive character of the proceedings in Ext. J series, and filed documents in proof of it. The trial went on thereafter for nearly three months, the defendants adduced their evidence, and the hearing was concluded on 2-6-1947. In the argument before the District Judge, far from objecting to the plea of lis pendens being permitted to be raised, the defendants argued the question on its merits, and sought a decision on the evidence that the proceedings were collusive in character, with a view to avoid the operation of Section 52 of the Transfer of Property Act. We are satisfied that the defendants went to trial with full knowledge that the question of lis pendens was in issue, had ample opportunity to adduce their evidence thereon, and fully availed themselves of the same, and that, in the circumstances, the absence of a specific pleading on the question was a mere irregularity, which resulted in no prejudice to them.
9.3. It was argued for the appellants that as no plea of lis pendens was taken in the pleadings, the evidence bearing on that question could not be properly looked into, and that no decision could be given based on Ext. J series that the sale dated 30-1-1920 was affected by lis; and reliance was placed on the observations of Lord Dunedin in Siddik Mahomed Shah v. Saran¹ that "no amount of evidence can be looked into upon a plea which was never put forward". The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a 27 particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto.
30] In the case of Kali Prasad Agarwala (Dead by L.Rs.) and others Vs. M/s. Bharat Coking Coal Ltd. And others reported in AIR 1989 SC 1530, the Hon'ble Supreme Court has held in para no. 19 as under:
19. In Kunju Kesavan v. M.M. Philip (1964) 3 SCR 634: (AIR 1964 SC 164), this Court has stated (as summarised in the head note at p. 637) (of SCR): (at p. 169 of AIR):
"The parties went to trial, fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not. The absence of an issue, therefore, did not lead to a material sufficient to vitiate the decision. The plea was hardly needed in view of the fact that the plaintiff stated in his replication that the "suit property was obtained as makkathayam property, by Bbagavathi Valli under the Ezhava Act. The subject of exemption from Part IV of the Ezhava Act, was properly raised in the trial Court and was rightly considered by the High Court.
31] In the case of Gian Chand and brothers and another Vs. Rattan Lala alias Rattan Singh reported in [2013] 2 SCC 606, the Hon'ble Supreme Court has held in para nos.26 and 27 as under :
26. Scrutinised thus, the irresistible conclusion would be that the defendants could not have been permitted to lead any evidence when nothing was stated in the pleadings. The courts below had correctly rested the burden of proof on the defendant but the High Court, in an erroneous impression, has overturned the said finding.28
27. Another aspect which impressed the High Court was the variance in the pleadings in the plaint and the evidence adduced by the plaintiffs. To appreciate the said conclusion, we have keenly perused Paras 6 and 7 of the plaint and the evidence brought on record. It is noticeable that there is some variance but, as we perceive, we find that the variance is absolutely very little. In fact, there is one variation i.e. at one time, it is mentioned as Rs 6,64,670 whereas in the pleading, it has been stated as Rs 6,24,670 and there is some difference with regard to the date. In our considered view, such a variance does not remotely cause prejudice to the defendant. That apart, it does not take him by any kind of surprise. In Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar the High Court had non-suited the landlord on the ground that he had not pleaded that the business of the firm was conducted by its partners, but by two other persons and that the tenant had parted with the premises by sub - letting them to the said two persons under the garb of deed of partnership by constituting a bogus firm. This Court observed that there is substantial pleading to that effect. The true test, the two-Judge Bench observed, was whether the other side has been taken by surprise or prejudice has been caused to him. In all circumstances, it cannot be said that because of variance between pleading and proof, the rule of secundum allegata et probata would be strictly applicable. In the present case, we are inclined to hold that it cannot be said that the evidence is not in line with the pleading and in total variance with it or there is virtual contradiction. Thus, the finding returned by the High Court on this score is unacceptable.
32] From the above noted judgments, the legal principle that emerges is that the Court would not permit the parties to deviate from the pleadings and lead evidence and no finding thereon would be made. However, the pleadings are not to be understood in pedantic sense and has to be understood liberally and if the parties are in full 29 knowledge of case put up against them and has led evidence on the case so as to enable the Court to deal with the case, finding can be rendered without specific issue being framed in that regard.
33] 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 if a particular matter was not expressly taken in the pleadings would be purely formal 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?
34] When there is no prayer for a particular relief and no pleadings to support such a relief, and when the 30 defendant has no opportunity to resist or oppose such a relief, if the Court considers and grants such a relief, it will lead to miscarriage of justice. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-
splitting technicalities. It is the duty of the Court to ascertain the substance of the pleadings and not to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised, the enquiry should not be so much about the form of the pleadings; instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that inspite of deficiency in the pleadings, parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a 31 party to raise the question of absence of pleadings in appeal.
35] The Court has to ascertain the substance of the pleadings and although there is no specific issue framed thereon if the parties have understood the pleadings and evidence is led thereupon and though the issue is not formulated, the findings can be rendered, provided the parties are not taken by surprise and they are fully aware as to the case set up.
36] Considering the law as noted above, now coming to the facts of this case, para no.4 of the plaint is relevant and is noted below :
4. प्यारा कलम १ मधील जमीन मिळकत लीजने घेतेवेळी प्रतिवादी व प्रतिवादी न्यासाने सदरची शेतजमीन वादी व वादी न्यासाचे परवानगी शिवाय बिनशेतीकडे वर्ग करणार नाही, छोटे मोठे बांधकाम करणार नाही, वार्दीचे न्यासाचे नुकसान करणार नाही. लीजने घेतलेल्या जागेचा गैरवापर करणार नाही. लीजने घतलेली जमीन त्रयस्त इसमास अगर संस्थेस तबटील करणार नाही. अगर जागेत पोटभाडेकरू टाकणार नाही. अगर सदर जमीनीत त्रयस्त 32 इसमाचा अगर संस्थेचा हक्क हितसंबंध निर्माण करणार नाही. जमिनीत वादीने परवानगीशिवाय कोणतेही बांधकाम करणार नाही. भाडयाने घेतलेल्या जागेचा वापर शैक्षणिक व चारिटेबल उद्देशाशिवाय इतर परपज करिता करणार नाही तसेच जमीनीचा वार कमर्शियल परपजकरिता करणार नाही आणि कोणतेही नफेखोर करणार नाही अशा महत्त्वाच्या अटी लेखी व तोंडी कबूल करून वादीकडू न नाममात्र दरसाल खंड रूप्ये २०००/- इतक्या अल्प खंडाने न्यासाचे उदात्त हेतू आहेत असे खंडाने घेतली. वादींनी प्रतिवादींच्या भुलथापावर विश्वस्त ठे वून न्यासाच्या जमीनीचा उपयोग केवळ शैक्षणिक व चारिटेबल उद्देशाकरिता होईल या भावडया भावनेने मौल्यवान जमीन प्रतिवादी व प्रतिवादी न्यासास तब्बल ९९ वर्षाच्या दीर्घ मुदतीकरिता भाडयाने दिली.
Para no. 2A of the written statement is as under:
2) Without prejudice to the aforesaid submissions these opponents are replying to the Suit/Plaint of the applicants parawise hereunder...
A) The Contents/description of the immovable property mentioned in para (I) are true and correct. As regards para (2) these opponents submit that it is denied that the said land still remains Inam III land.
37] The plaintiff in his examination in chief has produced the land conversion document obtained by the defendant and also produced the mortgage deed and 33 corresponding changes made in the record of rights. The mortgage deed was executed after filing of the suit and the same was produced in the examination in chief by the plaintiff. The defendant was also cross-examined on mortgage deed and he admitted his signature on the mortgage deed.
38] The trial Court dealt with the aspect of 'denial of title' and observed that after perusal of 7/12 extracts produced on record on behalf of the plaintiffs, it is seen that in some of 7/12 extracts the name of plaintiff trust along with trustees have been mentioned in ownership column whereas the names of defendant no.1 trust and its trustees have been recorded in other rights column on the basis of lease deed executed for the period of 99 years. It is further observed that in some 7/12 extracts the names of defendant trust and its trustees have been introduced in ownership column but the entries in revenue record does not confer title to the defendants when admittedly they have executed lease deed at Exh.322 in consonance with the order dated 34 22.05.1992 passed by the Charity Commissioner. Thus, on this aspect the trial Court held that the defendants have not challenged ownership of plaintiff trust on the basis of revenue entry. It is also concluded that there are no breaches of terms and conditions of the lease. The trial Court further observed that mere execution of mortgage deed cannot be a ground for passing decree of delivery of possession as prayed by plaintiffs.
39] The Appellate Court on this aspect has taken into consideration some of the terms of the lease deed, particularly in clause no.4, which points out that the parties have agreed that construction would remain with the defendants whereas the ownership of the land will remain with the plaintiffs and all the taxes will be paid by the defendants. The Appellate Court has further observed that the suit property, which is Inam land, classified as Inam Class-III in revenue record, has been converted by the defendant trust as non-inam land assessable to land revenue and the proposal was sent by the defendant to the State 35 Government for deletion of suit land from Deosthan Inam Class-III. It is further observed by the Appellate Court that such a proposal can only be sent by owner of the property and not by tenant. On the basis of proposal moved by the tenant i.e. defendant trust, an order came to be issued by State Government thereby deleting the suit property from deosthan Inam Class-III and the said order is at Exh.67/1. It is further observed that on the basis of the order of State Government dated 04.12.2001 and order of District Collector dated 24.03.2006, the suit property came to be mutated in the name of defendant trust. All this happened on the proposal moved by the defendant trust and the mutation entry No.9202 was taken and thereby name of the plaintiff trust came to be deleted and instead name of defendant trust came to be recorded as holder of the suit property that means the defendant trust got mutated it's name as owner of the suit property in the revenue record. Accordingly, 7/12 extracts came to be issued in the name of defendant trust. As such, the defendant trust has not only got deleted the suit property from Deosthan Inam Class-III, 36 but also deleted the name of Deosthan trust in the ownership column in the record of rights. The basic structure of the property was of religious inam trust and the tenant can not be allowed to change the basic structure of the property and again can claim innocence. It is further observed that while submitting development plan to the Municipal Corporation, the defendant trust has posed itself as owner of the property. The application moved to the Collector was also in the name of the defendant trust. The certified copy of the mortgaged deed filed on record was relied upon, wherein it is observed that the defendant trust through its trustees has mortgaged the property as well as the construction work thereon and to do so no permission is taken to mortgage the suit property. The lease deed does not permit to mortgage the suit property. Finally, it was held by the Appellate Court that by posing itself as a owner of the property, the defendant trust has firstly changed the structure and character of the property and secondly got deleted the name of the plaintiff trust from the record of rights and thereby lease would be forfeited under Section 37 111 (g) of the Transfer of Property Act.
40] The correctness / validity of finding of 'denial of title' is not before this Court. The question before this Court is whether the finding of 'denial of title' could have been rendered in the instant case as it is contended the pleadings are insufficient or do not make a case of 'denial of title' and whether decree for eviction could have been passed thereon.
41] In the instant case, this Court finds that in the plaint it was specifically pleaded that the leased land is Deosthan Inam Class-III and that the defendant without permission of the owner has applied for change of the nature of the land and that such an application could have been only made by the plaintiff being owner of the land. However, the defendant, in his written statement at para no.2A, has observed that the nature of land is no more Class-III Inam land. From the above pleading the plaintiff contends that the defendant applied for conversion of land i.e. an act only to be done by the owner. The 38 defendant has acted as the owner of the property. The pleadings if proved would establish breach of terms and conditions of the lease so also, it would establish the fact of 'denial of title'. As such, 'denial of title' is intrinsic to the pleadings, though not in very clear-terms. Also, no specific issue is framed on 'denial of title'. Although the pleadings are not very clear on the aspect of denial of title, the subsequent conduct of the parties of leading evidence without objection, clearly indicates that the parties have understood the case against them. On the 'denial of title', the evidence is led before the trial Court, which is not objected by the defendant. The plaintiff led evidence in chief on this aspect by producing documents and the defendant is cross-examined on the documents produced by the plaintiff and was not at all taken in surprise as there was time gap between the evidence of plaintiff and the defendant. The trial Court has considered the evidence on denial of title and rendered finding in favour of the defendants that there was no 'denial of title'. However, the Appellate Court has reversed the finding on 'denial of title'. 39 Thus, from the pleadings and evidence brought on record, it cannot be said that the parties are taken by surprise. There is specific pleading as regards breach of terms of lease deed. The breach complaint also travels in the domain of 'denial of title'. The denial of title also emerges from the written statement with pleading at para 2A wherein the defendant states that the leased land is no more Inam land. The pleadings are not to be construed in its strict sense and the pleading in the plaint would mean that the land is altered by the defendant on their own. During pendency of the suit, the suit property was mortgaged and further evidence was brought on record as regards mortgage being created on the land and structure thereon. The Appellate Court found that the land is also mortgaged and corresponding entries in the record of rights are created showing ownership of the land of the defendant and the right of owner being shifted into other right column. Thus, it cannot be said that the defendant was taken by surprise and case is not limited merely to breach of terms of lease deed. There was no objection taken by the defendant to the evidence led by the 40 plaintiff in that regard. The defendant had opportunity to defend the mortgage document and has admitted the signature on the mortgage document. As such, it cannot be said that the defendant is taken by surprise. Thus, it would be difficult for this Court to hold that the findings of 'denial of title' are completely beyond the pleadings. The parties were aware of the case put up against them and have led evidence on the aspect of 'denial of title' and were not taken by surprise. Thus, the first question of law raised is answered accordingly.
42] Coming to the next question is noted in para no. 3 (2) and 3 (3), namely, whether the notice of termination of tenancy dated 21.08.2004 before filing the suit is invalid being contrary to the terms and conditions of the mortgage deed executed by respondent / plaintiffs and whether the judgment and decree of first appellate court militates with provisions of Section 111 of the Transfer of Property Act, in absence of specific disclaimer of landlords title. 43] Section 111 of the Transfer of Property Act, 41 1882 is noted below for ready reference :
111. Determination of lease. -- A lease of immovable property determines --
(a) by efflux of the time limited thereby;
(b) where such time is limited conditionally on the happening of some event--by the happening of such event;
(c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event--by the happening of such event;
(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right;
(e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them;
(f) by implied surrender;
(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter [***]; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; [or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event]; and in [any of these cases] the lessor or his transferee [gives notice in writing to the lessee of] his intention to determine the lease;
(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.42
44] It is the contention of the appellants - defendants that in absence of notice being given under Section 111 (g) of the Transfer of Property Act no decree of eviction would have been passed under Section 111 (g) of the Transfer of Property Act is concerned, the learned counsel for the appellants - defendant relies upon the judgment in the case of Devasahayam (Dead) by LRS Vs. P.Savithramma and others reported in [2005] 7 SCC 653 has held in para 23 and 24 as under :
23. Under the provisions of the Transfer of Property Act, a landlord can evict his tenant only upon service of proper notice as envisaged under Section 106 of the Transfer of Property Act. A lease can be determined by forfeiture inter alia when the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself. But even in such a case, the lessor must give notice in writing to the lessee of his intention to determine the lease.
24. Distinction between clause (g) and clause (h) of Section 111 is that in the former the right of forfeiture is exercised while the tenancy is still subsisting while in a case falling under clause (h) the lease is determined by a notice to quit.
45] The learned Senior Counsel for the respondent
- defendant submits that notice of termination is not contemplated in the case of forfeiture of lease by 'denial of title' and notice is contemplated only in case of re-entry in 43 land, in case of breach of express condition of lease which provides for re-entry on breach and not in case of forfeiture of lease by denial of title.
46] The notice dated 21.08.2004 given to the defendant is for forfeiture of lease and the relevant clauses of the notice are noted below :
३. ...सदर भाडेपट्ट्यातील कोणत्याही अटी व शर्तीचा भंग झाल्यास तुमची टेनन्सी मुदती संपण्यापुर्वी रद्द करण्याचा व भाडयाने दिलेल्या जमिनीचा प्रत्यक्ष व मोकळा कब्जा मागण्याचा आमचे अशिलास अधिकार होता व आहे.
४. प्यारा कलम १ मधील जमिन मिळकत लीजने घेतेवेळी तुम्ही व तुमच्या न्यासाने सदरची शेतजमीन आमचे व आमचे न्यासाचे परवानगी शिवाय बिनशेतीकडे वर्ग करणार नाही, छोटे मोठे बांधकाम करणार नाही. आमचे आशिलाच्या न्यासाचे नुकसान करणार नाहीं. लीजने घेतलेल्या जागेचा गैरवापर करणार नाही. लीजने घेतलेली जमिन त्रयस्थ इसमास अंगर संस्थेस तबदील करणार नाही.
१०. सबब वरील सर्व कारणास्तव आमचे अशिल एकमताने ठराव घेऊन सदरची लीगल नोटीस रजिस्टर पोस्टाने तुम्हास पाठवून तुमची प्यारा कलम १ मधील मिळकतीची टेनन्सी याद्वारे रद्द करीत आहे. तुमचे टेनन्सीचे वर्ष ३० जून 44 २००४ अखेर संपलेले आहे. यापुढे वरील सर्व कारणास्तव आमचे अशिलास तुम्हास प्यारा कलम १ मधील मिळकतीत भाडेकरू म्हणून ठे वणे नाही. तुमचे टेनन्सी या नोटसीने टर्मिनेट केली आहे.
47] The above clause of the notice would indicate that the defendant / tenant has breached the clauses of the lease agreement and thus the tenancy is forfeited and would stand covered in Section 111 (g) of the Transfer of Property Act. The intention to determine the lease is clearly expressed in the notice. The words used in Section 111 (g) of Transfer of Property Act "and in any of these cases"
would indicate that the notice of termination of lease is mandatory in all the 3 sub-clauses of clause (g) of Section 111 of the Transfer of Property Act and it cannot be said that notice of termination is mandatory only in cases of sub- clauses (a) and (c) of Section 111 (g). The only essential condition is to terminate / determine the lease so as to claim back possession. There is no requirement of law that the notice has to indicate the specified sub-clauses of Section 111 (g).45
48] Thus, the substantial question of law raised at para no. 3 (2) and (3) is answered accordingly. 49] All the substantial questions of law are answered against the defendant - appellants. The Second Appeal is accordingly dismissed.
50] In view of the dismissal of Second Appeal, all pending Civil Applications are also disposed of.
[ARUN R. PEDNEKER] JUDGE 51] After pronouncement of the judgment, the learned counsel appellants prays for continuation of status quo for a period of eight [8] weeks from today. 52] Considering the request of the learned counsel for the appellants, status-quo shall be maintained qua the suit property for the period of eight [08] weeks from today.
[ARUN R. PEDNEKER] JUDGE DDC