Bombay High Court
M/S. Accord Developers Through Its ... vs Narayan Maruti Falke And Ors on 4 February, 2025
2025:BHC-AS:5263
Neeta Sawant WP-14599-2024+group-FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 14599 OF 2024
M/s. Accord Developers Partnership Firm } ...Petitioner
-Versus-
1. Shri. Narayan Maruti Falke
Since deceased through legal heirs
1A. Sindhubai Narayan Falke and others } ...Respondents
WITH
WRIT PETITION NO. 5178 OF 2016
Mr. Ranjeet Buwaji Nimhan
Since deceased through legal heirs
1.1. Kanta Ranjeet Nimhan and others }... Petitioner
-Versus-
1. Shri. Narayan Maruti Falke
Since deceased through legal heirs
1A. Sindhubai Narayan Falke and others } ...Respondents
WITH
WRIT PETITION NO. 17409 OF 2024
Mr. Ranjeet Buwaji Nimhan
Since deceased through legal heirs
1.1. Kanta Ranjeet Nimhan and others }... Petitioner
-Versus-
1. Shri. Narayan Maruti Falke
Since deceased through legal heirs
1A. Sindhubai Narayan Falke and others } ...Respondents
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WITH
WRIT PETITION NO. 17410 OF 2024
M/s. Accord Developers through its Partners
1. Mr. Jaspritsingh Ragbirsingh Rajpal and others } ...Petitioner
-Versus-
1. Shri. Narayan Maruti Falke
Since deceased through legal heirs
1A. Sindhubai Narayan Falke and others } ...Respondents
__________________________________________________________
Dr. V. V. Tulzapurkar, Senior Advocate with Mr. Mandar Soman,
for Petitioner in WP/14599/2024 and for the Respondent No. 15 in
WP/17409/2024.
Mr. Sunil G. Karandikar with Mr. H. P. Vyas (through V. C.), for
Petitioner in WP/5178/2016.
Mr. Surel Shah Senior Advocate (through V. C.), i/by Mr. Sahil
Mahajan, for Petitioner in WP/17409/2024.
Mr. Anil Anturkar, Senior Advocate with Mr. Rishi Bindra i/by
Ramiz Shaikh for Respondent Nos. 2a, 2b, 2d and 3 in WP/14599/2024
and for Respondent No. 1.1 to 1.3, 2, 3.1, 3.3, 3.4 and 4 in WP/
17410/2024.
Mr. Ramiz Shaikh with Mr. Harshil Gandhi, for Respondent Nos. 1.1,
1.2, 1.3, 2, 3.1, 3.3, 3.4 and 4 in WP/17409/2024.
Mr. Ramiz Shaikh with Mr. Rishi Bindra, for Respondent Nos. 2a, 2c,
2d and 3 in WP/5178/2016.
Ms. Kavita S. Solunke, AGP for State-Respondent in WP/14599/2024.
Mr. S. D. Rayrikar, AGP for State-Respondent in WP/17409/2024.
Ms. Dhruti Kapadia, AGP for State-Respondent in WP/17410/2024
and WP/5178/2016.
__________________________________________________________
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CORAM : SANDEEP V. MARNE, J.
Reserved On : 24 January 2025.
Pronounced On : 4 February 2025.
JUDGMENT :
1) The challenge in these four petitions is to declaration
of tenancy rights in favour of the contesting Respondents under
provisions of Section 70(b) of Maharashtra Tenancy and
Agricultural Lands Act, 1956 (the Act) and to fixation of purchase
price under Section 32-G thereof in their favour. Writ Petition No.
14599 of 2024 is filed by the developer-M/s Accord Developers
and Writ Petition No. 5178 of 2016 is filed by purchaser-Ranjeet
Buwaji Nimhan challenging order dated 13 January 2016 passed
by Maharashtra Revenue Tribunal (MRT) dismissing their
Revision Application and confirming the order passed by Sub-
Divisional Officer (SDO) dated 30 March 2005. The SDO had
allowed the Appeal preferred by contesting Respondents and set
aside the order passed by Agricultural Lands Tribunal and
Tehsildar (ALT) dated 18 November 2003 rejecting their claim of
being tenants in respect of the lands in question. The net effect of
the order passed by the MRT is that tenancy claim of contesting
Respondents in respect of the lands in question has been upheld.
2) On account of upholding of tenancy claims of the
contesting Respondents, they applied for fixation of purchase
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price of lands under Section 32G of the Act and by order dated
21 October 2024 the ALT, has fixed such purchase price and has
directed issuance of purchase certificate under Section 32M in
favour of contesting Respondents, on payment of determined
price. Both Accord Developers and Ranjeet Nimhan are aggrieved
by order dated 21 October 2024 and have accordingly filed Writ
Petition Nos. 17410 of 2022 and 17409 of 2024 respectively.
3) A brief factual narration for better understanding of
the issue at hand would be necessary. Agricultural lands bearing
Survey Nos. 396, 401, 403, 405, 410, 413, 417/4, 419, 420/2, 423/1,
423/4 and 427 at Village Bhugaon, Taluka Mulshi, District Pune
were originally owned by members of Angre family. It is claimed
that the one of the original owners Genu Tukaram Angre has
inducted Maruti Cheema Falke as a tenant in respect of the lands.
The daughter of Maruti Cheema Falke viz. Sheelabai was married
in the family of landlords to Krishna Genu Angre and her name
post her wedding became Sheelabai Krishna Angre. Son and
grandchildren of Maruti Cheema Falke viz. (i) Narayan Maruti
Falke, Chandrakant Shankar Falke and Rajendra Shankar Falke
filed Tenancy Case No. 20/2003 before the ALT seeking a
declaration that they are tenants in respect of agricultural lands
under the provisions of Section 70(b) of the Act. In their
application, the Applicants (Respondent Nos. 1, 2 and 3) claimed
that Maruti Cheema Falke used to pay Khand (rent) towards
cultivation of the lands to Angre family. It appears that Sheelabai
Krishna Angre (daughter of Maruti Cheema Falke) admitted the
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tenancy claim of Respondent Nos. 1, 2 and 3 by filing Affidavit
before ALT. However, it appears that Sheelabai Krishna Angre
separately filed an application dated 18 June 2003 for recording
her name as heir of Krishna Angre in respect of one-third portion
of lands in question. After conduct of inquiry, ALT proceeded to
reject the application preferred by Respondent Nos. 1, 2 and 3
vide order dated 18 November 2003 holding that relationship of
landlord and tenant could not be established.
4) Respondent Nos. 1 to 3 preferred Tenancy Appeal
No.20/2004 before the SDO challenging the ALT's order dated
18 November 2003 and prayed that the proceedings be remanded
to ALT in order to enable them to lead evidence. It appears that
Respondent Nos. 1 to 3 filed additional documents directly before
the SDO. The SDO considered the additional documents and
proceeded to allow the Appeal preferred by Respondent Nos. 1 to
3 by order dated 30 March 2005 and declared that Respondent
Nos. 1 to 3 are protected tenants in respect of the lands by setting
aside ALT's order dated 18 November 2003.
5) Angre family members filed Tenancy Revision
Application No. 122/2005 before the Divisional Commissioner,
which apparently came to be transferred to MRT. It appears that
during pendency of Revision Application before the Tribunal, the
lands were purchased by Shri. Ranjeet Nimhan on 7 October 2005
from Angre family members. A Development Agreement dated
31 December 2007 was executed by Shri. Ranjeet Nimhan in
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favour of Accord Developers. Accordingly, both Shri. Ranjeet
Nimhan and Accord Developers applied for intervention in the
Revision Application filed by Angre family members. It appears
that they were initially impleaded as Respondents and
subsequently transposed as Revision Applicants. The Tribunal
has rejected the Revision Application by judgment and order
dated 13 January 2016 which is subject matter of challenge in Writ
Petition No. 14599 of 2024 filed by Accord Developers and Writ
Petition No. 5178 of 2016 filed by Shri. Ranjeet Nimhan.
6) During pendency of Writ Petition Nos. 14599 of 2024
and 5178 of 2016, it appears that Respondent Nos. 1 to 3, filed
proceedings before the ALT for fixation of purchase price of the
lands. By order dated 21 October 2024, the ALT has allowed the
application preferred by Respondent Nos. 1 to 3 and has fixed
purchase price of the lands under provisions of Section 32G of the
Act with a further direction that upon payment thereof,
Certificate of Purchase under Section 32M of the Act would be
issued in their names. Both Accord Developers and Shri. Ranjeet
Nimhan are aggrieved by the said order dated 21 October 2024
and have accordingly filed Writ Petition Nos. 17410 of 2024 and
17409 of 2024.
7) Dr. Tulzapurkar, the learned senior advocate
appearing for M/s. Accord Developers, who is Petitioner in Writ
Petition No. 14599 of 2024 and Respondent No. 15 in Writ Petition
No. 17409 of 2024, would submit that the SDO has grossly erred
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in setting aside ALT's order and in declaring Respondent Nos. 1
to 3 as tenants ignoring the fact that the only prayer made was for
remand of proceedings for re-inquiry. That the SDO would not
have decided something which was beyond the prayers raised in
Appeal filed before him. That SDO erred in permitting
Respondent Nos. 1 to 3 to produce additional evidence before
him which was never produced before the ALT. That production
of additional evidence directly before SDO was contrary to the
prayer made in application for grant of opportunity to lead
additional evidence by remand of proceedings before the ALT.
He would submit that unfair trial and fair appeal is a concept
unknown to law. That a specific prayer was made before the
Tribunal that the order passed by SDO was contrary to the
prayers. He would submit that the Respondent before SDO was
not even aware about production of additional documents and
did not receive any notice about filing of additional documents.
Dr. Tulzapurkar would therefore submit that the SDO has
committed jurisdictional error by declaring Respondent Nos. 1 to
3 as tenants contrary to the prayers made before the SDO. In
support of his contentions, Dr. Tulzapurkar would rely upon the
judgment of the Apex Court in Bachhaj Nahar Versus. Nilima
Mandal and another1. He would therefore pray for setting aside the
impugned orders passed by SDO and MRT.
8) Mr. Karandikar the learned counsel appearing for
Shri. Ranjeet Nimhan in Writ Petition No. 5178 of 2016 would
(2008) 14 S.C.R. 621
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adopt submissions of Dr. Tulzapurkar and would additionally
submit that what was produced before the SDO were mere
photocopies of some of the unsubstantiated documents. He
would invite my attention to finding recorded by MRT that the
Tehsildar was right in rejecting tenancy claim and would criticise
the MRT in still dismissing Petitioner's Revision Application. He
would further submit that the finding recorded by SDO about
erroneous entry made by Tehsildar of 'Rit 1' in cultivation column
is perverse. He would submit that the application under Section
70(b) of the Act was required to be treated as a plaint by
following the provisions of the Mamlatdar Courts Act. That in the
present case neither issues were framed nor evidence was
recorded by ALT or SDO and tenancy claim of Respondent Nos. 1
to 3 is erroneously accepted. He would submit that after purchase
of the lands, Shri. Ranjeet Nimhan was originally impleaded as
Respondent to the proceedings before ALT and subsequently
transposed as Revision Applicant. That since Respondent Nos. 1
to 3 did not challenge impleadment and transposition orders,
they are now estopped from questioning the locus of Petitioners
in filing the petitions. He would pray for setting aside the orders
passed by SDO and MRT.
9) Mr. Shah, the learned senior advocate appearing for
Petitioner-Accord Developers in Writ Petition No. 17409 of 2024
would submit that the orders passed by ALT fixing purchase
price under Section 32G of the Act is liable to be set aside since
declaration of tenancy rights in favour of Respondent Nos. 1 to 3
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is itself illegal. He would therefore submit that if Writ Petition
Nos. 14599 of 2024 and 5178 of 2016 are allowed, the impugned
order passed by ALT on 21 October 2024 fixing the purchase price
would automatically be rendered ab intio void.
10) Mr. Anturkar, the learned senior advocate would
appear on behalf of the contesting Respondents would oppose the
petitions. He would submit that Petitioners are chance takers,
who whole heartedly participated in hearing before SDO without
raising any objections about decision on merits of the claim by the
SDO. That they did not raise any objection before SDO for taking
the additional documents and evidence on record. He would
submit that the objection of SDO deciding merits of the tenancy
claim was not raised before MRT in Revision Application filed by
Angre family nor even orally argued when the Revision
Application was heard and decided. That Shri. Ranjeet Nimhan
and Accord Developers do not have locus to challenge SDO's
order as both of them did not participate in proceeding before
SDO and as subsequent purchasers who have taken calculated
risk of purchasing the land despite full knowledge of the tenancy
claim of Respondent No.1 was already upheld by SDO. That their
purchase transaction is itself void as Angre family was no longer
competent to sell land to Shri. Ranjeet Nimhan nor Shri. Ranjeet
Nimhan had authority to execute Development Agreement in
favour of Accord Developers. Mr. Anturkar would further submit
that the judgment of the Apex Court in Bachhaj Nahar (supra) has
no application to the present case as the judgment is rendered in
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the light of importance of pleadings in a civil suit. He would
submit that it is the duty of ALT under the provisions of the Act
to determine tenancy rights. That provisions of the Code of Civil
Procedure do not apply to tenancy proceedings and therefore the
order passed by SDO cannot be questioned merely on the basis of
technicalities of absence of prayer in the appeal memo. Mr.
Anturkar would therefore pray for dismissal of the petition.
11) Rival contentions of the parties now fall for my
consideration.
12) The main ground of challenge to the order passed by
the SDO and MRT is about the SDO exceeding the prayer made in
the Appeal memo and proceeding to decide the merits of tenancy
claim. The ALT had rejected the tenancy claim of Respondent
Nos. 1 to 3 by order dated 18 November 2003, inter-alia holding
that name of Respondent No.1 was indicated in respect of most of
the lands in the cultivation column and though growth of grass
was reflected in respect of some of the lands, Respondent Nos.1 to
3 could not produce any evidence to show that their forefather
owned cattle. The ALT further held that Respondent Nos.1 to 3
did not produce evidence about payment of rent or rent
agreement. The ALT further held that Respondent Nos.1 to 3
were close relatives of Angre family and that therefore they
cannot be treated as tenants of the land. This is how ALT
proceeded to reject the tenancy claim of Respondent Nos.1 to 3.
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13) When the Respondent Nos.1 to 3 filed Appeal before
the SDO, they made following prayers in their appeal :
तरी मे. कोर्टा स वि नंती की,
अ) केस क्र. /७०ब/एस.आर./ २०/२००३ य अर्जक मी तहसिसलद र मुळशी
यनं ी विदले ल आदेश रद्दब तल ठरवि ण्य त य .
ब) म मलतद र कोर्टा अॅ'क्र्टा १९०६ मुंबई कुळ विह र्टा शेतर्जविमन अधि.विनयम
१९४८ मध्ये असण ऱ्य तरतुदीप्रम णे अॅ'पेलन्र्टा, रिरस्पॉन्डर्टा स क्षीद र य च
ं े
पुर व्य क मी शपथे र र्जब ब, सरतप सणी, उलर्टातप सणी, घेतले ले न हीत ते
घेण्य त य ेत त्य क मी फेरचौकशी करण्य त य ी.
क) अपील चे मुदतीत रिरस्पॉन्डर्टा य न
ं ी द विमळकतीत त्रयस्थ व्यक्तीचे विहतसंबं.
विनम ण करू नयेत. अगर धितन्ह ईत इसम स विमळकतीची वि क्री करू नये अस त्य ंचे
वि रूध्द मन ईच हुकूम करण्य त य .
ड) अपील दरू
ु स्तीस पर नगी अस ी.
इ) इतर योग्य न्य य चे हुकूम व्ह ेत.
14) Thus in their Appeal, Respondent Nos.1 to 3 prayed
for setting aside the order passed by the ALT and for remand of
the proceedings before the ALT for grant of opportunity to lead
evidence. Thus the only prayer made by Respondent Nos.1 to 3 in
their Appeal was for conduct of re-enquiry by the ALT by
recording evidence in accordance with the provisions of
Mamlatdar Courts Act, 1906 and Maharashtra Tenancy and
Agricultural Lands Act, 1958.
15) However, contrary to their prayer in the Appeal,
Respondent Nos.1 to 3 apparently produced additional evidence
relating to old 7/12 extracts and about proof of ownership of
cattle directly before the SDO. According to the Petitioners, the
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landlords did not have any notice of production of any additional
evidence. Perusal of the order passed by the SDO infact shows
that the SDO was inclined to remand the proceedings before ALT
by holding that Respondent Nos.1 to 3 were not able to produce
evidence in support of the tenancy claim before the ALT. The
SDO also criticised ALT for not granting adequate opportunity to
Respondent Nos.1 to 3 to produce the relevant documents. SDO
further held that Respondent Nos.1 to 3 were not in a position to
record their statement or to submit written submissions without
procuring the old documents. It would be apposite to reproduce
the findings recorded by SDO in his order dated 30 March 2005 :
य प्रकरणी दोन्ही ब र्जूंचे लेखी युक्ती द, म झ्य समोर द खल असलेले पुर व्य चे
क गदपत्र ख लील कोर्टा च विनणय तसेच चौकशी संधिचक य च ं मी अभ्य स
छ ननी केली आहे. य प्रकरणी अविपल थQ हे द र्जमीनीच कूळ हक्क स ंगत
आहेत. अविपल थQ य च ं ह कूळ हक्क प्रधित दी. नं. २ ते १२ य न ं ी न क रल आहे.
प्रधित दी नं. १ विहने म त्र अविपल्यथQचे कथन स समथन विदले आहे. ख लील
कोर्टा ची संधिचक प हत विनक लपत्र प हत , ख लील कोर्टा ने द र्जमीनीच्य
विह र्टा सदरी अविपल थQ य ंच्य असलेल्य नोदीसमोर रिरत नमूद न ही र्जमीनी
ग तपड आहेत तसेच अविपल थQ य न ं ी त्य ंचेकडे पशु.न असलेच पुर स दर
केलेल न ही खंड, धिचठ्ठय इत्य दी पुर स दर केलेल न ही, य क रण स्त
अविपल थQ य च ं अर्ज फेठ ळणेच विनणय विदल आहे. अविपल थQ य च ं े असे कथन
आहे की, ख लील कोर्टा ने त्य न ं अस पुर स दर करणेस पुरश े ी सं.ी विदलेली
न ही. आपल्य कथन च्य पृष्ठयथ अविपल थQ य न ं ी म झ्य समोर त्य न ं ी द
र्जमीनीचे र्जुन्य क ल .ीचे ७/१२ इत्य दी क गदपत्र ंच्य नकल विमळणेस ठी
केलेल अर्ज त्य र अविपल थQ य न ं तहसिसलद र य न ं ी विदलेले उत्तर य ंच्य प्रती
स दर केल्य आहेत. हे क गदपत्र प हत , अविपल थQ य न ं तहसिसलद र य नी
संबंधि.त क गदपत्र आढळू न येत नसल्य ने त्य ंच्य नकल देत येत नसल्य चे
कळवि ले आहे. त्य मुळे अविपल थQ हे सदरहू पुर व्य चे क गदपत्र ख लील कोर्टा त
स दर करु शकले न हीत, ही स्तुस्थिस्थती असल्य चे स्पष्ट होते. अविपल थQ य न ं ी
ख लील कोर्टा त त्य च लखी म्हणणे अथ र्जब बही विदलेल न ही. क रण
अविपल थQ य न ं र्जुनी क गदपत्रे विमळ ल्य शिश य र्जब ब देणे किंक लेखी म्हणणे
स दर करणेही अशक्य झ ले असल्य चे स्पष्ट होते. ख लील कोर्टा ने अविपल थQ य न ं
ही क गदपत्रे स दर करणेस लेखी म्हणणे स दर करणेस पुरश े ी सं.ी विदलेली न ही,
हे देखील स्पष्ट होते. ख लील कोर्टा त अविपल थQ य न ं ी आपण द र्जमीनींचे
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कृषकविदन पू Qप सूनचे कूळ असल्य च ठर करून विमळणेची म गणी केली होती.
अविपल थQ य नं ी स दर केलेल्य ७/१२ मध्ये विह र्टा सदरी रिरत नमूद न ही
र्जमीनी ग तपड असल्य चे स्पष्ट होते.
16) After recording the above findings, ordinarily SDO
ought to have granted the prayer made by Respondent Nos.1 to 3
for conduct of re-enquiry by the ALT after grant of opportunity of
leading evidence to the parties. However, despite repeatedly
holding that the ALT ought to have granted opportunity to
Respondent Nos.1 to 3 to lead evidence, the SDO erroneously
proceeded to consider the additional documentary evidence
apparently produced before him by Respondent Nos.1 to 3. This
is clear from the following findings recorded by the SDO :
तथ विप, अविपल थQ हे.. द र्जमीनी कोणत्य हक्क ने विह र्टाीत होते र्जमीनी
ग तपड क ठे ल्य , य ची पूण चौकशी ख लील कोर्टा ने केलेली न ही. ख लील
कोर्टा ने कूळ क यद कलम २(१) मध्ये विदलेली "कृविष" य शब्द ची व्य ख्य नीर्टा न
अभ्य सत र्जमीनी ग तपड आहेत, म्हणून अविपल थQ य च ं ी विह र्टा नसल्य च
परिरण मी कुळ हक्क नसल्य च विनष्कष चुकीच्य पध्दतीने क ढल आहे. अविपल थQ
यन ं ी म झ्य समोर र्जुने ७/१२ तसेच अविपल थQ य च ं ेकडे असलेले पशु.न ब बतचे
पुर व्य चे क गदपत्र द खल केले आहेत. हे क गदपत्र प हत , अविपल थQ हे द
र्जमीनींच उपयोग त्य ंचे पशु.न स च र च रणेस ठी करीत आले असल्य चे स्पष्ट
होते ह पर कुळ क यद कलम २(१) म.ील व्य ख्येनुस र "कृविष" य संझेत
येतो. अविपल थQ य च ं े पू र्ज धिचम र्जी हे द र्जमीनीचे सन १९३० प सून कूळ
असल्य चे विह र्टा सदरी असलेल्य नोंदी रुन स्पष्ट होते. अविपल थQ तसेच त्य ंचे
पू र्ज ंची द र्जमीनीस असलेली ही विह र्टाीची नोद के ळ रिरत नमूद न ही, य
क रण स्त अम न्य करणेच ख लील कोर्टा ने विदलेल विनष्कष चुकीच आहे. द
र्जमीनींपैकी क ही र्जमीनींचे विह र्टा सदरी अविपल थQ य च ं ी विह र्टा रिरत-१ नुस र
दशवि णेत आली आहे. अविपल थQ य च ं े न द र्जमीनीचे कब्र्जेद र सदरी द खल
न ही. य रुन तल ठी य न ं ी विह र्टा सदरी नमूद केलेली रिरत-१ चुकीची आहे, हे
सिसध्द होते. कूळ विह र्टाीब बत विनणय करत न के ळ अधि.क र अशिiलेख तील
नोंदी र वि संबत येत न ही.
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17) Thus, SDO relied upon additional documents
apparently produced by Respondent Nos. 1 to 3 directly before
him. He had already recorded a finding that the ALT ought to
have granted opportunity to Respondent Nos. 1 to 3 to lead
evidence. Curiously, after considering the additional evidence
directly produced before SDO by Respondent Nos.1 to 3, he once
again recorded following findings :
अश प्रक रे चौकशी करणेस ठी ख लील कोर्टा ने अविपल थQ य न
ं पुरश
े ी सं.ी देणे
आ श्यक होते.
18) In my view, the SDO has committed jurisdictional
error in considering the additional evidence produced by
Respondent Nos.1 to 3 directly before him. More grave is the
error on the part of the SDO in going beyond the prayers made by
Respondent Nos. 1 to 3 in their Appeal. In their Appeal,
Respondent Nos. 1 to 3 did not pray for declaring themselves as
tenants in respect of the lands in question. Their limited prayer
was for remand of proceedings before ALT for conduct of re-
enquiry by granting opportunity of hearing. In the light of this
limited prayer being made before the SDO, he could not, by
himself, have considered the merits of tenancy claim of
Respondent Nos.1 to 3. SDO was acting merely as an Appellate
Authority and was expected to only marshal the evidence on
record for examining whether there was any error on part of the
ALT while rejecting the tenancy claim of Respondent Nos.1 to 3.
While deciding the Appeal, he could not have himself taken on
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record any additional evidence when the prayer of Respondent
Nos. 1 to 3 was for remand of the proceedings by granting them
an opportunity to lead additional evidence.
19) The Respondents before SDO were defending only the
prayer for remand of proceedings and were never put to notice
that SDO himself would take additional evidence on record and
proceed to decide the tenancy claim, by himself, based on such
additional evidence. In this regard, reliance by Dr. Tulzapurkar
on the Apex Court judgment in Bachhaj Nahar (supra) appears to
be apposite wherein the Apex Court has highlighted the object
and purpose of pleadings and impermissibility for the Courts to
travel beyond pleadings. The Apex Court held in paragraphs-9,
10, 11 and 12 as under :
9. 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 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.
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 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
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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.
11. The High Court has ignored the aforesaid principles relating to the
object and necessity of pleadings. Even though right of easement was
not pleaded or claimed by the plaintiffs, and even though parties
were at issue only in regard to title and possession, it made out for the
first time in second appeal, a case of easement and granted relief
based on an easementary right. For this purpose, it relied upon the
following observations of this Court in Nedunuri
Kameswaramma v. Sampati Subba Rao [AIR 1963 SC 884] : (AIR p. 886,
para 6)
"6. ... No doubt, no issue was framed, and the one, which was
framed, could have been more elaborate; but since the parties
went to trial fully knowing the rival case and led all the
evidence not only in support of their contentions but in
refutation of those of the other side, it cannot be said that the
absence of an issue was fatal to the case, or that there was that
mistrial which vitiates proceedings. We are, therefore, of
opinion that the suit could not be dismissed on this narrow
ground, and also that there is no need for a remit, as the
evidence which has been led in the case is sufficient to reach
the right conclusion."
But the said observations were made in the context of absence of an
issue, and not absence of pleadings. The relevant principle relating to
circumstances in which the deficiency in, or absence of, pleadings
could be ignored, was stated by a Constitution Bench of this Court
in Bhagwati Prasad v. Chandramaul [AIR 1966 SC 735] : (AIR p. 738,
para 10)
"10. ... 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
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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."
(emphasis supplied)
The principle was reiterated by this Court in Ram Sarup
Gupta v. Bishun Narain Inter College [(1987) 2 SCC 555 : AIR 1987 SC
1242] : (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 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 of deficiency in the pleadings parties knew the
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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."
(emphasis supplied)
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, contain 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 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 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 [AIR 1966 SC 735] and Ram Sarup Gupta [(1987) 2
SCC 555 : AIR 1987 SC 1242] 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.
20) In my view therefore, it was impermissible for SDO to
travel beyond the prayers raised in the Appeal filed before the
SDO. There is nothing on record to indicate that Respondent
Nos.1 to 3 filed any application before the SDO for leading
additional evidence or that such application was considered or
allowed by the SDO. The so-called documents of ownership of
cattle by Respondent Nos. 1 to 3 are not backed by oral evidence.
The SDO, in my view, ought to have remanded the proceedings
before the ALT for being decided afresh by granting opportunity
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to Respondent Nos.1 to 3 to lead evidence, both documentary as
well as oral. The MRT has grossly erred in not correcting the
jurisdictional error committed by SDO in going beyond the
prayers in the Appeal. Mere grant of opportunity of hearing to
the Petitioners before MRT would not cure the inherent defect in
the order passed by the SDO.
21) After considering the overall conspectus of the case, I
am of the view that the order passed by SDO and MRT are
indefensible and are liable to be set aside. The proceedings
deserve to be remanded before the ALT for being decided afresh
by granting opportunity to Respondent Nos.1 to 3, as well as to
the Petitioners to lead additional evidence. True it is that
Petitioners have stepped into the shoes of Angre family members
on account of execution of conveyance and Development
Agreement in their favour. However, this would not preclude the
Petitioners from participating in the proceedings before the ALT
to rebut the additional evidence that would be produced by
Respondent Nos.1 to 3 and also to examine members of Angre
family if necessary and to produce any other relevant
documentary evidence. Since the orders passed by the SDO and
MRT are being set aside, the consequential order passed by the
ALT fixing purchase price of the lands under the provisions of
Section 32G of the Act vide order dated 21 October 2024 is also
liable to be set aside.
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22) I accordingly proceed to pass the following order :
(i) Order dated 30 March 2005 passed by the SDO as well as
order dated 13 January 2016 passed by MRT are set
aside.
(ii) Order dated 21 October 2024 passed by the Tehsildar and
ALT, Mulshi fixing purchase price of the lands under the
provisions of Section 32G of the Act are consequently set
aside.
(iii) Tenancy Case No.70-B/SR/20/2004 is remanded to
Tehsildar and ALT, Mulshi for being decided afresh after
grant of opportunity to Respondent Nos.1 to 3, as well as
to the Petitioners to lead additional evidence in support
of their respective claims.
(iv) Considering long passage of time, the Tehsildar and ALT
shall proceed to decide the remanded proceedings in an
expeditious manner, preferably within a period of one
year.
(v) All rights and contentions of the parties on merits of
their claims are expressly kept open and the ALT shall
not be influenced by any of the observations made by
SDO and MRT as well as by this Court while deciding
the remanded proceedings afresh.
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23) With the above directions, all the four Writ Petitions
are allowed and disposed of. There shall be no order as to costs.
NEETA [SANDEEP V. MARNE, J.]
SHAILESH
SAWANT
4 February 2025
