Kumar Arun vs Sheo Shankar Singh
2021 Latest Caselaw 944 Jhar

    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     (Civil Appellate Jurisdiction)
                        S.A. No. 32 of 2012
                                  ........

    Kumar Arun                                  ..... Appellant
                               Versus
    Sheo Shankar Singh                   .... .....     Respondent

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) ........

For the Appellant : Mr. Rajeev Kumar, Advocate. For the Respondent : Mr. Manjul Prasad, Sr. Advocate.

: Mr. Jitesh Kumar, Advocate : Mr. Arvind Kumar Sinha, Advocate.

........

15/25.02.2021.

The plaintiff /Appellant / appellant has preferred this Second Appeal against the judgment of affirmation passed by the first appellate court in Eviction Appeal No.04 of 2004 affirming the judgment and decree passed in Eviction Suit No.06/1998.

Learned counsel for the appellant, Mr. Rajeev Kumar has submitted that the learned courts below, though have admitted the plaintiff to be the owner of the property, but dismissed the suit for eviction on the ground that relationship of landlord and tenant have not been proved by the plaintiff / appellant / appellant.

Learned counsel for the appellant has submitted, that the judgment and decree passed by both the courts below are contrary to the law pronounced by the Apex Court in the case of Bhagwati Prasad Vs. Chandramaul reported in AIR 1966 SC 735 Paras - 9 and 10 of which are referred hereunder:-

"9. There can be no doubt that if a party asks for a relief on a clear and specific ground, and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. The same principle was laid down by this Court is Sheodhar Rai & Others v. Suraj Prasad Singh & Others . In that case, it was held that where the defendant in his written statement sets up a title to the disputed lands as the nearest reversioner, the Court cannot, on his failure to prove the said case, permit him to make out a new case which is not only made in the written statement, but which is wholly inconsistent with the title set up by the defendant in the written statement. The new plea on which the defendant

sought to rely in that case was that he was holding the suit property under a shikmi settlement from the nearest reversioner. It would be noticed that this new plea was in fact not made in the written statement, had not been included in any issue and, therefore, no evidence was or could have been led about it. In such a case clearly a party cannot be permitted to justify its claim on a ground which is entirely new and which is inconsistent with the ground made by in its pleadings.

10. But in considering the application of this doctrine to the facts of the present case, it is necessary to bear in mind the other principle that considerations of form cannot over-ride the legitimate considerations of substance. 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 where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issue, 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 had 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."

Learned counsel for the appellant has further submitted, that similar principles have been followed by the Apex Court in a case of Biswanath Agrawalla Vs. Sabitri Bera & Others reported in (2009) 15 SCC 693, where considering the litigation between the parties as held in paragraph-29, the matter was remitted to the court below

giving liberty to amend the plaint and pay the court fee and thereafter, defendant be entitled to file additional written statement. Thereafter, the court shall frame an appropriate issue and the parties would be entitled to adduce any other or further evidence on such issue and the Trial Judge shall dispose of the suit as expeditiously as possible, preferably within three months from the date of the filing of the application by the plaintiff in terms of the said direction.

Learned counsel for the appellant has submitted, that the parties are descendent of a common ancestor. The Partition Suit No.46 of 1998 between father of plaintiff, Nand Kishore Singh and his brothers namely, Late Bhrigu Nath Singh and Yadunath Singh, all sons of Late Babu Laxmi Singh was decreed on the basis of joint compromise petition, which has been brought on record as Exhibit-5.

Learned counsel for the appellant has further submitted that even after compromise decree another suit was preferred by the brother of defendant namely, Rajendra Prasad Singh against Nand Kishor Singh, who is father of the present plaintiff (Kumar Arun). The said suit was withdrawn on 14.03.2000 by Rajendra Prasad Singh, brother of the present defendant (Sheo Shankar Singh), which has been brought on record as Exhibit-3.

During the pendency of Title Eviction Suit No.06 of 1998, the brother of present defendant namely Rajendra Prasad Singh preferred Title Partition Suit No.76 of 1998 against Nand Kishore Singh i.e, father of the present plaintiff and the same has been dismissed as withdrawn in terms of order dated 14.03.2000.

Learned counsel for the appellant has submitted, that thereafter the Sheo Shankar Singh preferred Title Suit No.56 of 2000 being plaintiff against Nand Kishore Singh, who is father of the present plaintiff (Kumar Arun) and the said suit was dismissed by learned Sub Judge-II, Palamau on 21.01.2008, which has been brought on record as Exhibit-5/A.

Learned counsel for the appellant has submitted, that under the such circumstances, the courts below have completely erred in not

granting relief to a person, whose title has not been disputed even by the courts below.

Under the aforesaid circumstances, the judgment passed by both the courts below are contrary to laws pronounced by the Apex Court as held in the case of Gurnam Singh & Ors. Vs. Lehna Singh reported in (2019) 7 SCC 641, as such, this appeal may be admitted.

The instant second appeal is admitted on following substantial question of law:

1. Whether the court below has erred in not decree the suit in favour of the plaintiff / appellant / appellant as the parties were knowing the lis between the parties and to that effect evidence has been brought on record, as such, in view of the judgment passed by the learned Apex Court in the case of Bhagwati Prasad Vs. Chandramaul reported in AIR 1966 SC 735, Vishwanath Agrawala Vs. Savitri Bera & Others reported in (2009) 15 SCC 693 as well as Radha Devi Vs Ajay Kumar reported in 1998 2 BLJR 1069 (para-9), the judgments passed by learned courts below are bad in law contrary to the judgment passed by the Apex Court ?

Under the aforesaid circumstances, let Lower Court Records be called through Special Messenger, for which appellant deposit the cost for special messenger cost.

Notice is waived as Mr. Manjul Prasad, Sr. Advocate assisted by Mr. Jitesh Kumar and Arvind Kumar Sinha are already appeared in this case.

Learned senior counsel for the respondent, Mr. Manjul Prasad has submitted that this Court may consider the judgment passed by the Apex Court in the case of Rajendra Tiwari Vs. Basudev Prasad reported in 2001 4 PLJR 79 SC and order passed by Coordinate Bench in S.A. No.162 of 1991(R) Kashi Prasad Vs. Mathura Prasad (unreported judgement).

Learned counsel for the parties have fairly submitted that this matter may be taken up in the month of March, 2021 as they have agreed for final disposal in April 2021.

Office is directed to place the case "For Hearing" in the monthly cause list of April 2021.

However, the parties shall be at liberty to frame any other substantial question of law at the time of hearing of this appeal.

(Kailash Prasad Deo, J.) Jay/-