Bombay High Court
Mr. Mahadu Karbhari Pund(Mali) ... vs Mrs. Sonyabai Khnadu Mhaske And ... on 16 March, 2021
Bench: S. K. Shinde
Rane 1/10 SA-606-2015 (sr.17)
16.3.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 606 OF 2015
ALONGWITH
CIVIL APPLICATION NO. 1341 OF 2015
Mr. Mahadu Karbhari Pund
(Mali) and Others .....Appellants
V/s.
Mrs. Sonyabai Khandu Maske
and Ors. .....Respondents
****
Mr. Rameshwar N. Gite, Advocate for the appellants.
Mr. Anilkumar K. Patil, Advocate for the respondents.
CORAM : SANDEEP K. SHINDE, J.
Tuesday, 16th March, 2021.
P.C. :
1. Heard Mr. Gite, learned Counsel for the
appellants and Mr. Patil, learned Counsel for the
respondents.
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16.3.2021
2. Aggrieved by the decree passed in Regular Civil
Appeal No.9/2004, original plaintiffs in Regular Civil Suit
No. 71/1996 have preferred this Second Appeal.
3. The only ground, on which the impugned decree
has been assailed, is the ground no.11 of the Appeal Memo,
which reads as under :
"11. The Judgment and Order passed by the
Ld. District Court is perverse to the record and
therefore, is illegal, improper and is against the
documents on record and therefore deserves to be
quashed and set aside."
3. Facts :
. Suit property is Gat No.36. Plaintiffs sought, a
declaration of their title and injunction to restrain the
defendants from obstructing and interfering their
possession over the suit land. Respondents no.13 and 14
(original defendants no.13 and 14) had filed a counter-claim
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and asserted their right and share in the suit Gat No.36.
The learned trial Court vide judgment and decree dated 2nd
January, 2004 decreed the suit and rejected the counter-
claim of the defendants no.13 and 14. Aggrieved by the
decree, the original defendants no.1 to 8 had preferred
Regular Civil Appeal No. 5/2004; whereas, defendants
no.13 and 14 have preferred Regular Civil Appeal
No.9/2004. The Appellate Court dismissed Appeal No.
5/2004. However, Appeal No.9/2004 was allowed.
Resultantly, decree of the trial Court, was modified as
follows :
"(i)That the plaintiffs and defendant Nos.9 to 12
are declared to be owners of north side ½ portion
out of Gat No.36, situated at Gajarwadi and
defendant Nos.1 to 8, either by themselves or
through anybody on their behalf are permanently
restrained from disturbing possession of plaintiffs
and defendant Nos.9 to 12 over north side ½
portion of suit property.
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(ii) It is further ordered and declared that defendant
Nos.13 and 14 by name Pandharinath Pund and
Vishnu Pund are owners of south side ½ portion
out of Gat No.36 and plaintiff Nos.1 and 2 and
defendant Nos.9 to 12 are ordered to deliver
possession of said south side ½ portion to defendant
Nos.13 and 14, within 3 months from today i.e. on
or before 5/8/2014.
(iii) Separate enquiry into past and future mesne
profits is ordered to be held under Order 20 Rule 12
of Civil Procedure Code."
4. It is against the decree in Regular Civil Appeal
No.9/2004, this Appeal is preferred.
5. The learned Counsel for the appellant, would
contend that the Appellate Court erred in granting, the
relief beyond pleadings in the counter-claim. It is
submitted that, the defendants no.13 and 14 did not seek a
declaration of the title in Suit Gat no.36. It is submitted, in
absence of the pleadings, the Appellate C0ourt has declared
the defendants no.13 and 14 as owners of the southern
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portion of Gat No.36. In support of the contentions,
learned Counsel, has taken me through the plaint,
judgment of the trial Court, Appellate Court and the
issues/points framed therein. The learned Counsel has also
taken me through the Written Statement filed by
defendants no.13 and 14 and particularly relied on para-9 of
the Written Statement. Submission is that, the defendants
no.13 and 14 would assert their interest in the suit land as
the 'tenants' and not as its owners. Learned Counsel, in
support of his submissions, relied on the judgment of the
Apex Court in the case of Bachhaj Nahar Versus.
Nilima Mandal and Another1.
6. Mr. Patil, learned Counsel on the other hand,
would support the judgment and decree passed in Regular
Civil Appeal No.9/2004.
1 (2008) 17 SCC 491
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16.3.2021
7. I have carefully considered the submissions of the
Counsel for the parties.
Facts discerned from Evidence-Pleadings :
8. That father of the plaintiffs, Karbhari Gangaram
Pund and father of defendants no.13 and 14, Kashiram
Abaji Pund had purchased the suit Gat No.36 from the
predecessor-in-title of defendants no.1 to 8. The sale-deed
is at Exhibit-102. This fact is not in dispute. Infact, this
fact is pleaded in plaint, para-2. It reads as follows;
^^oj dye 1 e/;s o.kZu dsysyh feGdr gh eqGph oknh o
lkfey izfroknh ua-9 rs 12 ;kaps [email protected] Eg.kts dS-
dkjHkkjh xaxkjke iaqM&ekGh o dkf'kjke vkckth iaqM ;kaps
ekydhph o dCtsofgokVhph gksrh- ijarw izR;{kkr gh feGdr
dS- dkjHkkjh xaxkjke iqaM ;kapsp dCtkr laiw.kZi.ks gksrh o rs
okjY;kuarj gh laiw.kZ feGdr vkt jksth oknh Eg.ktsp dS-
dkjHkkjh xaxkjke iqaM ;kaps okjlkaph dCtsofgokVhr] miHkksxkr]
ekydh gDdkus vktgh vkgs-^^
Admittedly, Khandu Maske, is the predecessor-in-title of
the defendants no.1 to 8. He had filed Regular Civil Suit
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No.4/1983 against the father of the plaintiff in respect of
Suit Gat No.36. In the said suit, written statement was
filed by the plaintiffs, wherein they admitted that the suit
land was purchased, jointly by their father, Karbhari Pund
with Kashiram Pund (father of defendants no.13 and 14).
9. Thus, the pleadings in the plaint, written
statement and the sale-deed at Exhibit-102 has established
a fact, that the suit property was jointly owned by father of
the plaintiffs and father of defendants no.13 and 14, vide
the sale-deed (at Exhibit-102), which has not been
questioned by the appellants-plaintiffs. Thus, in
consideration of the facts, the learned Appellate Court has
correctly held that, defendants no.13 and 14 are the owners
of half southern portion of Gat No.36. In the backdrop of
the aforestated "admitted fact", reliance on the judgment
of the Hon'ble Apex Court in Bachhaj (supra) is of no
assistance to the appellants. In the cited judgment,
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plaintiff's suit for declaration of title, on the sale-deed
dated 29th December, 1962, was negated by the first
Appellate Court. However, in Second Appeal, High Court
held that, the plaintiffs had made out a case for grant of
relief based on easementary right of passage, in respect of
the suit property. In context of these facts, it was observed
in para-18 of the judgment that,
"A perusal of the plaint clearly shows that entire
case of the plaintiffs was that they were the
owners of the suit property and that the first
defendant had encroached upon it. The plaintiffs
had not pleaded, even as an alternative case, that
they were entitled to an easementary right of
passage over the schedule property."
and held in para-13, thus :
"10. 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
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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 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."
However, in this case, a plaintiff himself had pleaded
and admitted that suit land was purchased by
Karbhari Pund (their father) and Kashiram Pund
(father of defendants no.13 and 14) vide sale-deed
Exhibit-102. As such, the ratio laid down in the cited
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judgment, has no application to the facts of the case in
hand.
10. In view of the facts of the case and for the
reasons stated, the Appeal does not give rise to any
substantial question of law. The Appeal is dismissed.
11. In view of dismissal of the Appeal, Civil
Application No. 1341 of 2015 becomes infructous and does
not survive. The same is accordingly disposed of.
Digitally
signed by
Neeta Neeta S.
Sawant
S. Date:
Sawant 2021.03.18
17:11:36
+0530
(SANDEEP K. SHINDE, J.)
