Smt.Ediga Sarabhamma vs Ediga Mallamma
2024 Latest Caselaw 2845 Tel

Telangana High Court

Smt.Ediga Sarabhamma vs Ediga Mallamma on 26 July, 2024

Author: G.Radha Rani

Bench: G.Radha Rani

          THE HONOURABLE Dr. JUSTICE G.RADHA RANI

                 I.A.No.2 of 2020 in A.S.No.83 of 2020
                                  and
            APPEAL SUIT No.83 of 2020 & C.C.No.691 of 2023


JUDGMENT:

This Appeal is filed by the appellants-plaintiffs 1 to 3 aggrieved by

the judgment and decree dated 06.01.2020 passed in O.S.No.17 of 2014 by the

III Additional District and Sessions Judge, Mahabubnagar District at Gadwal

in dismissing the suit filed by them for declaration of title and for recovery of

possession and recovery of damages of Rs.3,00,000/- at the rate of

Rs.1,00,000/- per annum.

2. As per the averments in the plaint, the plaintiffs 1 to 3 were the

natural daughters of late Nadipi Sunkanna Goud through his legally wedded

wife by name, Narayanamma @ Shyamalamma, who died in the year 1960.

During the life time of late Nadipi Sunkanna Goud, he developed illicit

relationship with one Ediga Mallamma, defendant No.1 and gave birth to

defendants 2 to 7. Since there was no valid marriage between late Nadipi

Sunkanna Goud and Ediga Mallamma, the defendants 2 to 7 should be

regarded as illegitimate children. After the death of Nadipi Sunkanna Goud,

the suit schedule properties were devolved upon plaintiffs 1 to 3 and they were 2 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

cultivating the same through defendants 6 and 7, who used to manage the

cultivation affairs and account for the yield and used to pay a sum of

Rs.1,00,000/- per annum to the plaintiffs. Taking advantage of their close

access to the estate affairs of the suit property, defendants 6 and 7 managed the

revenue authorities and got their names mutated in the revenue records, as if

they were the legal heirs of late Nadipi Sunkanna Goud and after such

mutation, they refused to give the agricultural usufruct to the plaintiffs. In the

month of October 2013, they claimed their exclusive rights over the suit

schedule properties. The plaintiffs convened a panchayath through elders and

got issued a legal notice on 05.11.2013 demanding delivery of possession of

suit schedule properties. Defendants 1, 6 and 7 got issued reply notice on

25.11.2013 with false allegations, as such, they filed the suit for declaration of

title and for recovery of possession and damages.

3. The defendant No.7 filed written statement. The same was adopted

by defendants 1 to 6. The defendants admitted their relationship with

plaintiffs, but denied that late Nadipi Sunkanna Goud had not married the

defendant No.1 after the marriage of plaintiff's mother. They contended that

defendant No.1 was the legally wedded wife of late Nadipi Sunkanna Goud

and defendants 2 to 7 were his legitimate children. The marriages of the 3 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

plaintiffs were performed by late Nadipi Sunkanna Goud. He gave sufficient

amount and gold in the form of ornaments to the plaintiffs at the time of their

marriages. As such, the plaintiffs were not having any right or share in the suit

schedule properties. After the death of Nadipi Sunkanna Goud in the year

2002, the suit schedule properties devolved upon the defendants. By virtue of

Will Deed dated 30.05.1995, executed by late Nadipi Sunkanna Goud, the

defendants 6 and 7 partitioned the suit schedule properties in the year 2003

and the Mandal Revenue Officer issued mutation proceedings.

4. Basing on the said pleadings, the trial court framed the issues as

follows:

i. Whether the defendant No.1 is the legally wedded wife of late Nadipi Sunkanna Goud?

ii. Whether the plaintiffs are the only legal heirs of Nadipi Sunkanna Goud?

iii. Whether the plaintiffs are entitled for declaration that they are the owners of the suit property and to recover the suit property?

iv. Whether the plaintiffs are entitled for damages as prayed for? v. Whether the plaintiffs are entitled for mesne profits as prayed for?

           vi.    To what relief?
                                           4                                  Dr.GRR,J
                                              A.S.No.83 of 2020 and C.C.No.691 of 2023

5. The plaintiff No.3 was examined as PW.1 and got examined two

other witnesses as PWs.2 and 3 and got marked the documents Exs.A1 to A15

on their behalf. On behalf of the defendants, defendant No.7 was examined as

DW.1 and a third party as DW.2, the scribe and attestors to Will Deed as

DWs.3 to 5 and got marked Exs.B1 to B22.

6. The trial court, on considering the oral and documentary evidence

on record held that, the defendant No.1 was not the legally wedded wife of late

Nadipi Sunkanna Goud. However, considering Section 16(3) of the Hindu

Marriage Act, 1955, the trial court held that not only the plaintiffs but also

defendants were the legal heirs of late Nadipi Sunkanna Goud and the

plaintiffs were not entitled for a declaration that they were the exclusive

owners of the suit schedule properties and that the plaintiffs and defendants

were the co-owners of the suit schedule properties. The trial court dismissed

the suit leaving open to the plaintiffs to file an appropriate suit for partition, if

the law permits.

7. Assailing the judgment and decree in O.S.No.17 of 2014, the

plaintiffs preferred this appeal contending that having regard to the averments

made in the plaint coupled with the documentary evidence, the trial court

ought to have seen that the appellants-plaintiffs, being the daughters of late

5 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

Nadipi Sunkanna Goud through legally wedded wife Narayanamma were

entitled for the property and ought to have decreed the suit for partition, as the

plaintiffs had got right over the property and filed I.A.No.2 of 2020 under

Section 151 of C.P.C. for amendment of the prayer in the suit by incorporating

the alternative relief of partition and separate possession of the suit schedule

property into 27.5% share each to the plaintiffs 1 to 3 and for the division of

suit schedule properties in O.S.No.17 of 2014.

8. Heard Sri V. Ramana, the learned counsel for the appellants-

plaintiffs and Sri P. Ganga Rami Reddy, the learned counsel for the

respondents-defendants.

9. The contention of the learned counsel for the appellants was that as

the trial court held that the appellants-plaintiffs as well as the respondents-

defendants were co-owners of the suit schedule properties, it ought to have

divided the suit schedule properties and allotted the shares to the plaintiffs 1 to

3. In view of the Order VII Rule 7 of C.P.C., the alternative relief of partition

could be granted even in the absence of prayer. Under Order VII Rule 7 of

CPC, the court had power to grant the lesser relief claimed by the plaintiffs

and relied upon the judgments of composite High Court of Andhra Pradesh in 6 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

Pendyala Narasimham Vs. Pendyala Venkata Narasimha Rao 1, and of the

Division Bench of High Court of Andhra Pradesh in Kusam Satyanarayana

Reddy and Ors. Vs. Kusam Sambrajyamma (died) by LRs. And Ors. 2, and

of the Hon'ble Apex Court in Bachhaj Nahar Vs. Nilima Mandal and Anr. 3,

and Rajendra Tiwary Vs. Basudeo Prasad and Anr. 4, and of the High Court

of Karnataka in Neelavva Vs. Shivawwa5 and of the Hon'ble Apex Court in

Life Insurance Corporation of India Vs. Sanjeev Builders Pvt. Ltd. &

Anr. 6

10. Learned counsel for the respondents on the other hand contended

that in the absence of plea in the plaint and evidence that the suit schedule

properties were joint family properties and that the plaintiffs were members of

the joint family and entitled for a share in the suit schedule properties, the

plaintiffs were not entitled to the alternative relief. The defendants had not

admitted that the plaintiffs had a share in the suit schedule properties and

denied specifically that the plaintiffs had no right and interest in the suit

schedule properties. The defendants filed documents marked under Ex.B11,

B18 and B19 under which Nadipi Sunkanna Goud had mortgaged the land

AIR 1963 AP 78

2004 (2) ALD 635 (DB)

(2008) 17 SCC 491

AIR 2002 SC 136

ILR 1988 Karnataka 2761

Civil Appeal No.5909 of 2022 dated 01.09.2022 7 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

covered by Sy.No.738 to an extent of Ac.11-02 cents and sold the land

covered by Sy.No.266 to perform the marriages of plaintiffs and defendants 2

to 7. After the death of late Nadipi Sunkanna Goud in the year 2002, by virtue

of the Will marked as Ex.B20 dated 30.05.1995 executed by late Nadipi

Sunkanna Goud in favour of defendants 6 and 7, defendants 6 and 7

partitioned the suit schedule properties in the year 2003 and mutated their

names in the revenue records as pattadars and enjoyers in respect of their

respective shares. The mutation proceedings issued by the MRO were marked

as Exs.B5 and B6. Even before filing the suit, the defendant No.6 sold the

land allotted to him in Sy.Nos.205-1, 213-B and 738 under Ex.B13 to B17.

The defendants 6 and 7 also formed a layout in Sy.No.738 and sold the entire

land keeping a small extent of 500 Sq.yards and 700 Sq. yards for each

respectively.

10.1. He further submitted that in a suit for partition, the burden of proof

would be on the plaintiffs to prove whether there existed joint family nucleus

and the Court had to adjudicate and decide the right, entitlement and shares of

the parties basing on the pleadings and evidence. The Court had to decide

whether the person seeking division had share or interest and entitled for the

relief of division and in what manner the properties had to be divided. Merely 8 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

because the trial court held that the plaintiffs and defendants were co-sharers

of the suit schedule properties, the plaintiffs were not entitled to the shares as

claimed in the appeal. The Court had to decide whether late Nadipi Sunkanna

Goud died intestate or testate, whether the suit schedule properties were

available for partition and to what extent the plaintiffs and defendants were

entitled to shares. There need to be pleadings, issues and evidence on record

on these aspects. The relief of partition was distinct and different and not a

subsidiary relief to the main relief of declaration of title. In the present case,

absolutely there were no pleadings and evidence on record to grant the

alternative relief claimed by the appellants-plaintiffs. The trial court rightly

dismissed the suit leaving open to the plaintiffs to file an appropriate suit for

partition, if the law permits. There were no grounds warranting interference

with the judgment and decree of the trial court in O.S.No.17 of 2014 and

prayed to dismiss the appeal.

10.2. Learned counsel for the respondents also relied upon the judgments

of the Hon'ble Apex Court in Bachhaj Nahar Vs. Nilima Mandal and Anr.

(3 supra), Shub Karan Bubna @ Shub Karan Prasad Bubna Vs. Sita 9 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

Saran Bubna and Ors. 7, and National Textile Corporation Ltd. Vs. Naresh

Kumar Badrikumar Jagad and Ors.8.

11. On hearing the contentions of both the learned counsel, the points

that arise for consideration in this appeal are:

i. Whether I.A.No.2 of 2020 filed by the appellants-

plaintiffs seeking amendment of the prayer for alternative relief of partition and separate possession of the suit schedule properties can be allowed?

ii. Whether the judgment of the trial court in O.S.No.17 of 2014 dismissing the suit filed by the plaintiffs for declaration of title, recovery of possession and for recovery of damages is sustainable?

                iii.    To what result?


    P O I N T No.1:

Whether I.A.No.2 of 2020 filed by the appellants-plaintiffs seeking amendment of the prayer for alternative relief of partition and separate possession of the suit schedule properties can be allowed?

12. As seen from the facts of the case, the plaintiffs filed the suit seeking

the relief of declaration of title, recovery of possession, damages and mesne

profits claiming that they were the legal heirs of late Nadipi Sunkanna Goud and

(2009) 9 SCC 689

(2011) 12 SCC 695 10 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

the defendants 1 to 7 were having no right, interest or title over the suit schedule

properties. The defendants contended that the defendant No.1 was the second

wife of late Nadipi Sunkanna Goud and defendants 2 to 7 were also children of

late Nadipi Sunkanna Goud born to his second wife. The trial court, on

considering the evidence on record held that the evidence of defendants on record

was not sufficient to hold that the late Nadipi Sunkanna Goud married defendant

No.1 after the death of his first wife Narayanamma @ Shyamalamma. As such,

the said marriage between the defendant No.1 and late Nadipi Sunkanna Goud

was void under Section 5(1) of Hindu Marriage Act, 1955, since it was performed

during the subsistence of the marriage between late Nadipi Sunkanna Goud and

Narayanamma @ Shyamalamma. But, however, considered that there was ample

evidence on record to hold that defendant No.1 was given social approval as the

wife of late Nadipi Sunkanna Goud. PW.1 admitted in her cross-examination that

the marriages of plaintiffs 1 and 2 were performed by Nadipi Sunkanna Goud and

defendant No.1 and that defendant No.1 used to live along with her father and

mother in the same house along with defendants 2 to 7 under the common roof.

The conduct of the family members of the plaintiffs also would show that they

accepted the defendant No.1 as the wife of Nadipi Sunkanna Goud. In view of

Section 16(3) of the Hindu Marriage Act, 1955 and as per the judgment of the

Hon'ble Apex Court in Revana Siddappa & Another Vs Mallikarjun & 11 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

Ors. 9 held that defendants 2 to 7 were on par with the plaintiffs and were

entitled to all the rights in properties of their parents both self-acquired and

ancestral and that they were co-owners of the suit schedule properties.

13. The contention of the learned counsel for the appellants was that as

the plaintiffs and defendants 2 to 7 were considered as co-owners by the trial

court, the trial court ought to have granted the relief of partition without driving

the plaintiffs to file a separate suit for partition. Order VII Rule 7 permits

granting such a relief to the parties.

14. In the light of the said contention raised by the learned counsel for

the appellants, it is considered fit to go through the provision of Order VII Rule

7 of C.P.C. It reads as follows:

"7. Relief to be specifically stated: - Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement."

(2011) 11 SCC 1 12 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

15. The Hon'ble Apex Court in Rajendra Tiwary Vs. Basudeo

Prasad and Anr. (4 supra) while considering the provisions of Order VII Rule

7 observed that:

"A plain reading of Order VII Rule 7 makes it clear that it is primarily concerned with drafting of relief in a plaint. It is in three parts -- the first part directs that the relief claimed by the plaintiff simply or in the alternative shall be stated specifically. It incorporates in the second part the well settled principle that it shall not be necessary to ask for general or other relief which may always be given as the Court may think just on the facts of the case to the same extent as if it has been asked for. The third part says that in regard to any relief claimed by the defendant in his written statement, the same rule shall apply.

16. By placing reliance upon its earlier judgment in Firm Sriniwas

Bam Kumar vs. Mahabir Prasad & Ors. [AIR 1951 SC 177] it was held that:

"Ordinarily, the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings & which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendants own plea cannot possibly be regarded with surprise by the latter & no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the 13 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

defendant, it may not be proper to drive the plaintiff to a separate suit."

17. Learned counsel for the appellants relied upon the judgment of the

High Court of Karnataka in Neelavva Vs. Shivawwa (5 supra) on similar facts

wherein the plaintiff had filed the suit for declaration and injunction to restrain

the defendant from alienating the suit property and there was no prayer for

partition and separate possession, it was held that:

"No doubt in the plaint there is no specific prayer made by the plaintiff seeking partition and separate possession of her share in the suit land. However, it should not come in the way of granting a preliminary decree for partition and separate possession of the share of the plaintiff. Once it is declared that the plaintiff is entitled to a half share in the suit land, the necessary consequence of it is to divide the suit land and give her half share. As all the persons entitled to a share in the suit land are parties to the suit, in a suit of this nature the relief for partition must be deemed to have been prayed for in the suit. It is also relevant to notice that the relief of partition and separate possession flows from the same cause of action which forms the basis for the present suit. Denial of such a relief would only lead to another suit. Multiplicity of proceedings should normally be avoided as the same tends to delay justice. In the facts and circumstances of the case the relief of partition and separate possession becomes a consequential relief.

18. By also considering its earlier judgment in Rangappa v. Jayamma

[ILR 1987 KAR 2889] on considering the scope of Rule 7 of Order VII of C.P.C.,

it was held that:

14 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

"8.1. The provisions of O. VII, R. 7 of the C.P.C.

are so widely worded that they do enable the Court to pass a decree for partition in a suit for declaration of title to immoveable property and possession thereof where it turns out that the plaintiff is not entitled to all the interest claimed by him in the 'Suit property. In such a situation there is nothing unusual in giving relief to the parties by directing partition of the suit property according to the share of the parties established in the suit. The normal rule that relief not founded on the pleadings should not be granted is not without an exception. Where substantial matters constituting the title of all the parties are touched in the issues and have been fully put in evidence the case does not fall within the aforesaid rule. The Court has to look into the substance of the claim in determining the nature of the relief to be granted. Of course, the Court while moulding the relief must take care to see that relief it grants is not inconsistent with the plaintiffs claim, and is based on the same cause of action on which the relief claimed in the suit, that it occasions no prejudice or causes embarrassment to the other side; that it is not larger than the one claimed in the suit, even it the plaintiff is really entitled to it, unless he amends the plaint; that it had not been barred by time on the date of presentation of the plaint.

8.2. No doubt the plaintiff has sought for exclusive title and he has not been able to prove his exclusive title; but has been able to prove, that he is entitled to a half share in the suit properties. When a party claims exclusive title to the suit property and is liable to establish that he is entitled to half of the suit property, it will not be unusual for the Court to pass a decree for partition and possession of his half share. In fact such a relief flows from the relief prayed for in the plaint that he is the exclusive owner of the entire property,When a 15 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

larger relief is made and what is established, is not the entire relief claimed in the suit but a part of it, as whole includes a part, larger relief includes smaller relief, and it also arises out of the same cause of action. Therefore in the instant case, nothing prevented the Court to pass a decree for partition, in order to avoid another suit for partition and to give relief to the party in conformity with the right he had established."

Therefore we are of the view that instead of driving the plaintiff to another suit for partition, in conformity in the right she has established, it is just and appropriate to pass a preliminary decree for partition and separate possession of her half share. The plaintiff has not also lost her right in the suit property because the, suit is filed within 12 years from the date of the death of her father. In other words, within 12 years from the date the property devolved upon her or the succession opened. Therefore, even if a separate suit has to be filed for partition, the defendant does not have any sustainable defence. Therefore no prejudice will be caused to the defendant/ respondent if a preliminary decree for partition and separate possession is passed in this suit itself."

19. Learned counsel for the appellants contented that no question of

limitation also would arise in filing a suit for partition as relief of partition was

not barred by limitation and relied upon the judgment of the Hon'ble Apex

Court in Ganesh Prasad Vs. Rajeshwar Prasad and Ors. 10 wherein the

position of law with regard to amendments was explained by the Hon'ble Apex

court by citing the case of Life Insurance Corporation of India Vs. Sanjeev

Builders Pvt. Ltd. & Anr. (6 supra) as under:

2023 SCC OnLine SC 256 16 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

"36. In one of the recent pronouncements of this Court, in the case of Life Insurance Corporation of India v. Sanjeev Builders Private Limited and Another, Civil Appeal No. 5909 of 2022 dated 01.09.2022, the position of law has been explained as under:

"70. ..... (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC.

(iii) The prayer for amendment is to be allowed

(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

(ii) to avoid multiplicity of proceedings, provided

(a) the amendment does not result in injustice to the other side,

(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and

(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

(iv) A prayer for amendment is generally required to be allowed unless

(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,

(ii) the amendment changes the nature of the suit,

(iii) the prayer for amendment is malafide, or

(iv) by the amendment, the other side loses a valid defence.

(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical 17 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897)"

18 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

20. The only objection for the amendment was that by the proposed

amendment, an opposite party should not be subjected to injustice and that the

amendments of the pleadings should be allowed liberally which were necessary

for determination of the real controversies in the suit. Provided that the

proposed amendment should not alter or substitute a new cause of action.

21. Learned counsel for the appellants further contended that all the

properties were included in the suit and all the co-owners were parties to the

suit. He further relied upon the judgment of the Hon'ble Apex Court in Praful

Manohar Rele Vs. Krishnabai Narayan Ghosalkar and Ors. 11, wherein by

placing reliance upon its earlier judgments in B.K. Narayana Pillai Vs.

Parameswaran Pillai [(2000) 1 SCC 712], it was held that:

"22...Allowing the amendment this Court held that the plea sought to be raised was neither inconsistent nor repugnant to the pleas raised in defence. The Court further declared that there was no absolute bar against taking of inconsistent pleas by a party. What is impermissible is taking of an inconsistent plea by way of an amendment thereby denying the other side the benefit of an admission contained in the earlier pleadings. In cases where there was no inconsistency in the facts alleged, a party is not prohibited from taking alternative pleas available in law.

23. Reference may also be made to the decision of this Court in J.J. Lal Pvt. Ltd. and Ors. v. M.R. Murali and Anr. [(2002) 3 SCC 98] where this Court formulated the following tests for determining whether the alternative plea raised by the plaintiff was permissible:

(2014) 11 SCC 316 19 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

"14. To sum up the gist of holding in Firm Sriniwas Ram Kumar's case: If the facts stated and pleading raised in the written statement, though by way of defence to the case of the plaintiff, are such which could have entitled the plaintiff to a relief in the alternative, the plaintiff may rely on such pleading of the defendant and claim an alternate decree based thereon subject to four conditions being satisfied, viz., (i) the statement of case by defendant in his written statement amounts to an express admission of the facts entitling the plaintiff to an alternative relief,

(ii) in granting such relief the defendant is not taken by surprise, (iii) no injustice can possibly result to the defendant, and (iv) though the plaintiff would have been entitled to the same relief in a separate suit the interest of justice demand the plaintiff not being driven to the need of filing another suit."

22. He also relied upon the judgment of the Hon'ble Apex Court in

State of Maharashtra Vs. Hindustan Construction Company Limited12 on

the aspect that:

"14. Pleadings and particulars are required to enable the court to decide true rights of the parties in trial. Amendment in the pleadings is a matter of procedure. Grant or refusal thereof is in the discretion of the court. But like any other discretion, such discretion has to be exercised consistent with settled legal principles. In Ganesh Trading Co. v. Moji Ram [(1978) 2 SCR 614], this Court stated :

"Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleading in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to

(2010) 4 SCC 518 20 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take."

15. Insofar as Code of Civil Procedure, 1908 (for short 'CPC') is concerned, Order VI Rule 17 provides for amendment of pleadings. It says that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

23. Learned counsel for the appellants further relied upon the judgment

of the High Court of Andhra Pradesh in Pendyala Narasimham Vs. Pendyala

Venkata Narasimha Rao (1 supra) wherein on considering that a suit for

ejectment would be regarded as one for partition if the plaintiff was found

entitled to it, even in the absence of an alternative claim, it was held that:

"29. What emerges from these rulings is that even without an amendment in a suit for possession of certain property with sole and exclusive rights therein, a decree for partition could be granted notwithstanding the absence of an alternative prayer provided such a relief would not result in much prejudice or injustice to the other side."

24. He further contended that the relief of partition was a smaller relief

to the relief of declaration and relied upon the Division Bench judgment of the

High Court of Andhra Pradesh in Kusam Satyanarayana Reddy and Ors. Vs.

Kusam Sambrajyamma (died) by LRs. And Ors. (2 supra) wherein it was

held that:

21 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

"18. In view of this judgment and in view of the mandate of Order 7, Rule 7 of the Code which clothes the Courts with inherent power to grant either general relief or other relief which appears to be just, legitimate and proper in any case even though such reliefs have not been specifically asked for. We find no difficulty in this case in upholding the Trial Court's judgment. It may also be, however, noted that under Order 7, Rule 7 of the Code although the Court can grant a relief which has not been asked for, but it cannot grant a relief which is larger than the relief claimed by the plaintiff, but where the relief claimed by the plaintiff is larger and the Court grants a relief which is smaller than the one claimed, it would be legal. In the present case the plaintiffs claimed whole property, but on facts the Trial Court found that they could claim part of the property as legal representatives of the original owner along with some of the defendants. Therefore, in our view, the Trial Court was right in granting the decree of partition. Same view was expressed by the Orissa High Court in a judgment reported in Managobinda v. Brajabandhu Misra [AIR 1986 Orissa 281], where the plaintiff had claimed a declaration of exclusive title, confirmation of possession and consequent permanent injunction, but the Court found it to be joint property and did not agree with the plaintiff that he had the exclusive title and possession. In the result the Court passed a decree that the plaintiff had joint title and possession over the suit property."

25. However, the Courts while considering these principles stated that

the amendment should not change the nature of the suit and if the amendment

changes the nature of the suit or the cause of action by setting up an entirely

new case, the amendment must be disallowed. Even if the amendment with

regard to claiming the relief of partition, as prayed for by the appellants is

allowed, there are no pleadings whether the suit schedule property was a joint 22 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

family property or that whether the plaintiffs and defendants 2 to 7 were

members of a joint family and whether they were entitled for a share in it. The

defendants 6 and 7 were contending that by virtue of a Will, the properties

were executed by late Nadipi Sunkanna Goud in their favour and that they had

partitioned the suit schedule properties in the year 2003 and they had also sold

the land allotted to them to third parties except keeping a small extent of land

of 500 Sq. yards and 700 Sq. yards each. Thus, all these issues with regard to

the nature of the property, availability of the property and whether there was

an earlier partition between the parties and whether any third parties' interest

were brought in and whether the said third parties also should be included as

parties to the suit are also necessary issues, which have to be framed and

decided. So the entire nature of the suit itself would be changed by allowing

the relief of partition, as prayed for.

26. Learned counsel for the respondents relied upon the judgment of

the Hon'ble Apex Court in Bachhaj Nahar Vs. Nilima Mandal and Anr. (3

supra) wherein in a suit filed for declaration, possession and injunction, the

High Court in Second Appeal, in the absence of any pleading or issue relating

to an easementary right, granted permanent injunction restraining the 23 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

defendant No.1 from interfering with the plaintiffs' use and enjoyment of the

right of passage over the suit property held that:

"10. The High Court, in this case, in its obvious zeal to cut delay and hardship that may ensue by relegating the plaintiffs to one more round of litigation, has rendered a judgment which violates several fundamental rules of civil procedure. The rules breached are :

(i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject matter of an issue, cannot be decided by the court.

(ii) A Court cannot make out a case not pleaded. The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint.

(iii) A factual issue cannot be raised or considered for the first time in a second appeal.

11. The Civil Procedure Code is an elaborate codification of the principles of natural justice to be applied to civil litigation. The provisions are so elaborate that many a time, fulfillment of the procedural requirements of the Code may itself contribute to delay. But any anxiety to cut the delay or further litigation, should not be a ground to float the settled fundamental rules of civil procedure. Be that as it may. We will briefly set out the reasons for the aforesaid conclusions.

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 24 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

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.

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 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.

15. 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 vs. Shri Chandramaul [AIR 1966 SC 735] :

"If a plea is not specifically made and yet it is covered by an issue by implication, and the parties 25 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

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 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 matter relating to the title of both parties to the suit was touched, tough 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)

16. The principle was reiterated by this Court in Ram Sarup Gupta (dead) by LRs., vs. Bishun Narain Inter College [AIR 1987 SC 1242]:

"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 26 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

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 state 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 if 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 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 case and they proceeded to trial on those issue 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]

17. It is thus clear that a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contains the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence 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 27 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise. The principles laid down in Bhagwati Prasad and Ram Sarup Gupta (supra) referred to above and several other decisions of this Court following the same cannot be construed as diluting the well settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded, only when one of the parties raises the same at the stage of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, suo moto.

22. The observation of the High Court that when a plaintiff sets forth the facts and makes a prayer for a particular relief in the suit, he is merely suggesting what the relief should be, and that it is for the court, as a matter of law, to decide upon the relief that should be granted, is not sound. Such an observation may be appropriate with reference to a writ proceeding. It may even be appropriate in a civil suit while proposing to grant as relief, a lesser or smaller version of what is claimed. But the said observation is misconceived if it is meant to hold that a civil court may grant any relief it deems fit, ignoring the prayer.

23. It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits, grant of relief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppel, acquiescence, non-joinder of causes of action or parties etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of Rs.one lakh, the court cannot grant a decree 28 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

for Rs. Ten lakhs. In a suit for recovery possession of property `A', court cannot grant possession of property `B'. In a suit praying for permanent injunction, court grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc.

24. In the absence of a claim by plaintiffs based on an easementary right, the first defendant did not have an opportunity to demonstrate that the plaintiffs had no easementary right. In the absence of pleadings and an opportunity to the first defendant to deny such claim, the High Court could not have converted a suit for title into a suit for enforcement of an easementary right. The first appellate court had recorded a finding of fact that plaintiffs had not made out title. The High Court in second appeal did not disturb the said finding. As no question of law arose for consideration, the High Court ought to have dismissed the second appeal. Even if the High Court felt that a case for easement was made out, at best liberty could have been reserved to the plaintiffs to file a separate suit for easement. But the High court could not, in a second appeal, while rejecting the plea of the plaintiffs that they were owners of the suit property, grant the relief of injunction in regard to an easementary right by assuming that they had an easementary right to use the schedule property as a passage."

27. Learned counsel for the respondents also relied upon the judgment

of the Hon'ble Apex Court in National Textile Corporation Ltd. Vs. Naresh

Kumar Badrikumar Jagad and Ors. (8 supra) wherein it was held that:

"7. Pleadings and particulars are necessary to enable the court to decide the rights of the parties in the trial. Therefore, the pleadings are more of help to the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties 29 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

may adduce appropriate evidence on the said issue. It is a settled legal proposition that "as a rule relief not founded on the pleadings should not be granted". A decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ. (Vide:

M/s. Trojan & Co. v. RM N.N. Nagappa Chettiar, AIR 1953 SC 235; State of Maharashtra v. M/s. Hindustan Construction Company Ltd., AIR 2010 SC 1299; and Kalyan Singh Chouhan v. C.P. Joshi, AIR 2011 SC 1127."

28. There are no pleadings with regard to the nature of the suit or the

entitlement of the parties to their respective shares and evidence on the said

aspects. Without necessary pleadings, issues and evidence, these aspects

cannot be decided.

29. The Hon'ble Apex Court in Shub Karan Bubna @ Shub Karan

Prasad Bubna Vs. Sita Saran Bubna and Ors. (7 supra) while considering

the necessary requisites which have to be pleaded and proved in a suit for

partition held that:

"5. `Partition' is a re-distribution or adjustment of pre- existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty.

6. A partition of a property can be only among those having a share or interest in it. A person who does not have a share

30 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

in such property cannot obviously be a party to a partition. `Separation of share' is a species of 'partition'. When all co- owners get separated, it is a partition. Separation of share/s refers to a division where only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother.

7. In a suit for partition or separation of a share, the prayer is not only for declaration of plaintiff's share in the suit properties, but also division of his share by metes and bounds. This involves three issues: (i) whether the person seeking division has a share or interest in the suit property/properties; (ii) whether he is entitled to the relief of division and separate possession; and (iii) how and in what manner, the property/properties should be divided by metes and bounds?

In a suit is for partition or separation of a share, the court at the first stage decides whether the plaintiff has a share in the suit property and whether he is entitled to division and separate possession. The decision on these two issues is exercise of a judicial function and results in first stage decision termed as `decree' under Order 20 Rule 18(1) and termed as `preliminary decree' under Order 20 Rule 18(2) of the Code. The consequential division by metes and bounds, considered to be a ministerial or administrative act requiring the physical inspection, measurements, calculations and considering various permutations/ combinations/alternatives of division is referred to the Collector under Rule 18(1) and is the subject matter of the final decree under Rule 18(2).

20. On the other hand, in a partition suit the preliminary decrees only decide a part of the suit and therefore an application for passing a final decree is only an application 31 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

in a pending suit, seeking further progress. In partition suits, there can be a preliminary decree followed by a final decree, or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the court. In fact several applications for final decree are permissible in a partition suit. A decree in a partition suit enures to the benefit of all the co-owners and therefore, it is sometimes said that there is really no judgment-debtor in a partition decree.

21. A preliminary decree for partition only identifies the properties to be subjected to partition, defines and declares the shares/rights of the parties. That part of the prayer relating to actual division by metes and bounds and allotment is left for being completed under the final decree proceedings. Thus the application for final decree as and when made is considered to be an application in a pending suit for granting the relief of division by metes and bounds."

30. Thus, the points that have to be considered in a partition suit are

completely different from the points that have to be considered in a suit for

declaration of title. Merely because the trial court held that the plaintiffs and

defendants were co-owners of the suit schedule properties, the appellants-

plaintiffs could not be permitted to seek amendment which changes the nature

of the suit itself. The relief of partition was distinct and different and could

not be considered as a subsidiary relief to the main relief of declaration of title

as there were no pleadings and evidence for granting the alternative relief

claimed by the appellants-plaintiffs. As such, the application of the appellants-

32 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

plaintiffs seeking amendment of the prayer for the alternative relief of partition

could not be considered.

P O I N T No.2:

Whether the judgment of the trial court in O.S.No.17 of 2014 dismissing the suit filed by the plaintiffs for declaration of title, recovery of possession and for recovery of damages is sustainable?

31. The appellants - plaintiffs accepted the judgment and decree of the

trail court and only sought for an alternative relief of partition. They had not

expressed any grievance over the judgment of the trial court in not considering

their plea for declaration of title and other reliefs as sought for by them. This

Court does not find any grounds warranting interference with the judgment

and decree of the trial court in O.S.No.17 of 2014. As such, the appeal filed

against the said judgment and decree is dismissed.

P O I N T No.3: To what result?

32. In the result, the appeal is dismissed confirming the judgment and

decree of the learned III Additional District Judge, Mahaboobnagar at Gadwal

in O.S.No.17 of 2014 dated 06.01.2020.

No order as to costs.

33 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

Miscellaneous petitions, if any pending shall stand closed.

This Contempt Case is filed by the appellants-plaintiffs under Sections 10

to 12 of the Contempt of Courts Act to punish the respondents for wilful and

deliberate disobedience of the orders passed by this Court in I.A.No.1 of 2020

in A.S.No.83 of 2020 on 18.01.2021.

2. Heard the learned counsel for the appellants-plaintiffs and the

learned counsel for respondent-defendant No.7.

3. The contention of the learned counsel for the appellants-plaintiffs

was that they filed O.S.No.17 of 2024 on the file of the III Additional District

and Sessions Judge, Mahaboobnagar District at Gadwal and the said suit was

dismissed. Aggrieved by the same, they preferred an appeal vide A.S.No.83 of

2020 and also filed I.A.No.1 of 2020 seeking interim directions. Interim

directions were given in I.A.No.1 of 2020 on 18.01.2021 as follows:

"Respondent Nos.1, 6 and 7 filed a counter-affidavit stating that item No.2 of the suit schedule properties was mortgaged by the father of respondent Nos. 6 and 7 under Ex,B11-mortgage deed and after the death of their father, they paid the entire mortgage amount and got released the property and that respondent No.6 sold the land covered by Item No,2 of the suit schedule properties, under Exs.B13 to 15 prior to the filing of the suit.

34 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

In the light of the above, admittedly, there are certain properties, which are not yet alienated.

In those circumstances, there shall be interim stay of alienating or creating any third party interest with respect to the suit schedule properties other than the ones which have been alienated as mentioned above."

4. The said interim order was passed in the presence of the learned

counsel for the respondents 1, 6 and 7. The respondents were also aware of

the order passed by this Court. The respondent No.7 recently executed a

registered sale deed in favour of Smt. Thotakura Manikyamma,

W/o. Thotakura Balram Goud with respect to Plot No.23 admeasuring

266.66 Sq.yards vide registered document No.9535 of 2021 dated 05.05.2021

and also executed registered sale deed in favour of Sri B. Devender Naidu,

S/o. B. Narayana with regard to Plot Nos.21 and 24 admeasuring 551.11 Sq.

yards vide document No.9536 of 2021 dated 05.05.2021 by violating the

orders of this Court. The action of the respondent No.7 in executing the above

registered sale deeds in favour of third parties was not legal and valid. The

respondent No.7 executed the registered sale deeds with a malafide intention

to defraud the appellants. The execution of registered sale deeds in favour of

third parties would amount to wilful and deliberate disobedience of orders of

this Court and prayed to punish the respondents under Sections 10 to 12 of the

Contempt of Courts Act.

35 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

5. Learned counsel for the respondents - defendants submitted that the

defendant No.7 had sold plot Nos.4, 5, 8 to 17 and 21 to 29 under the General

Power of Attorney bearing document No.130 of 2018 dated 08.06.2018 to U.

Krishnam Raju and Uppari Jayaramudu, after receiving the entire sale

consideration delivering possession. The GPA holders alienated the plots 21,

23 and 24. The defendant No.7 had no knowledge. He was not signatory to

the sale deeds executed by the GPA holders. The defendant No.7 had not

violated the orders of the court dated 18.01.2021 and prayed to dismiss the

petition.

6. Generally, any directions given by this court to the parties shall

also bind their agents or persons acting through them. However, considering

that in the present case, the GPA along with possession was executed by the

defendant No.7 in favour of the third parties in the year 2018 itself, prior to

passing the order on 18.01.2021 in I.A.No.1 of 2020 in A.S.No.83 of 2020 and

as it was reported that the GPA holders alienated the said plots without the

knowledge of the defendant No.7 and as defendant No.7 was not signatory to

the said sale deeds executed by the GPA holders, it is considered that the

defendant No.7 had not violated the orders of this Court.

36 Dr.GRR,J A.S.No.83 of 2020 and C.C.No.691 of 2023

7. In the result, the Contempt Case is closed.

Miscellaneous petitions, if any pending shall stand closed.

___________________________ Dr. JUSTICE G.RADHA RANI July 26th, 2024 ss