Munni Bai @ Bisahin Bai v. Sahulal

AFR HIGH COURT OF CHHATTISGARH AT BILASPUR Second Appeal No. 435 of 2006

1. Munni Bai @ Bisahin Bai, Aged about 50 years, W/o Shri Chamru Singh, R/o Village Raja Deeh, P.S. Marwahi, Distt. Bilaspur, Chhattisgarh.

2. Semjir Bai, W/o Shri Itwar Singh, R/o Village Pateratola, Marwahi, Distt.

Bilaspur, Chhattisgarh.

3. Bihaniya Bai, W/o Shri Panchu, R/o Village Rumga, Marwahi, Distt. Bilaspur, Chhattisgarh.

4. Raghunath Singh (died) through Lrs.

a. Prem Singh, Aged about 46 years, S/o Late Shri Raghunath Singh.

b. Ram Singh, Aged about 48 yars, S/o Late Shri Raghunath Singh.

c. Samaru Singh, Aged about 35 years, S/o Late Shri Raghunath Singh.

d. Dharam Singh, Aged about 30 years, S/o Late Shri Umed Singh.

All R/o Village and Post Rumga, Tahsil Marwahi, Distt. Bilaspur, Chhattisgarh.

--- Appellants/Defendants

Versus

1. Sahulal, Aged about 33 years, S/o Shri Ramlal.

2. Babulal, Aged about 37 years, S/o Shri Ramlal.

3. Gendlal, Aged about 30 years, S/o Shri Ramlal.

4. Chhakelal, Aged about 27 years, S/o Shri Ramlal. All R/o Village Rajadeeh, P.S. Marwahi, Tahsil Pendra Road, Distt. Bilaspur, chhattisgarh.

5. State of Madhya Pradesh (Now Chhattisgarh) through District Collector, Bilaspur, Chhattisgarh.

--- Respondents/Plaintiffs For Appellants : Mr. Rakesh Thakur and Mr. Shashi Bhushan Tiwari, Advocates For Respondents : Mr. R.N. Jha, Advocate For State : Mr. Ravi Bhagat, Deputy Government Advocate Hon'ble Shri Justice Sanjay K. Agrawal Judgment on Board 06/12/2019

1. This second appeal preferred by the defendants was admitted for hearing on the following two substantial question of law :- "(A) Whether the learned First Appellate Court committed an illegality in granting a relief, which was not claimed by the Plaintiffs ?

(B) Whether the learned Appellate Court committed illegality in holding the Respondents No. 1 to 4 to be entitled to succeed the share of Pushani Bai ?"

(For the sake of convenience, parties would be referred hereinafter as per their status and ranking shown in the suit before the trial Court.)

2. The following genealogical tree will demonstrate the relation between the parties :- Jaipal Sitaram Mansharam 1st wife Indraniya Bai 2nd wife Pushani Bai Ghurau Raghunath Sukhdariya Bai Defendant No. 1 Defendant No. 3 (Daughter) Sahulal Chhakelal Babulal Gendlal Plaintiff No. 1 Plaintiff No. 4 Plaintiff No. 2 Plaintiff No. 3

3. The suit property admeasuring 13.28 acres in total situated at Village Rajadeeh, P.S. Marwahi, Tahsil Pendra Road was originally held by Sitaram who had one daughter namely Sukhdariya Bai, born out of his wedlock with his first wife Indraniya Bai. The Four plaintiffs are sons of Sukhdariya Bai and grandsons of Sitaram. Defendants No. 1 and 3 are sons of Mansharam who is the brother of

Sitaram, therefore, defendants No. 1 and 3 are nephews of Sitaram.

4. Sitaram, vide registered sale deed dated 08/07/1969 (Ex. D/1), alienated the suit property in favour of defendants No. 1 and 3 and his second wife namely Pushani Bai. Thereafter, he died in the year 1972.

5. Plaintiffs filed a civil suit only for permanent injunction claiming that defendants be restrained from interfering with their possession stating inter alia that the sale deed dated 08/07/1969 (Ex. D/1) executed by Sitaram in favour of defendants No. 1 and 3 and his second wife Pushani Bai was a nominal sale deed and not a real and outright sale deed as there was no legal necessity for Sitaram to alienate the suit property in favour of the two defendants and Pushani Bai.

6. Defendants denied the plaint allegations and set up a plea that the sale deed in question (Ex. D/1) executed by Sitaram in favour of defendants No. 1 and 3 and Pushani Bai is a real and outright sale deed and not a nominal one. The suit property was exclusively held by Sitaram,

therefore, he was fully competent to alienate the suit property and plaintiffs have no right to question the said sale deed.

7. Learned trial Court, after evaluation of oral and documentary evidence on record, vide its judgment and decree dated 16/03/1998, dismissed the suit holding that plaintiffs are not entitled for permanent injunction as defendants are in possession of the suit property.

8. On appeal being preferred by the plaintiffs, learned first appellate Court, vide its judgment and decree dated 11/07/2006, principally affirmed the judgment and decree of the trial Court and held that the suit property was the exclusive property of Sitaram and he, during his lifetime, alienated the suit property in favour of his nephews i.e. defendants No. 1 and 3 and his second wife i.e. Pushani Bai and gave rest of the land to his first wife Indraniya Bai and since, Sitaram himself did not question the said sale deed (Ex. D/1) in his lifetime, therefore, after his death, plaintiffs cannot question the alienation made by Sitaram in favour of defendants No. 1 to 3 and Pushani Bai, but

thereafter, in paragraph 20 and 21 of its judgment, the first appellate Court has held that Pushani Bai has already died and after her death, her share in the suit property would revert back to her husband Sitaram, who is also deceased, therefore, plaintiffs being the grandsons of Sitaram, would succeed the suit property upto the extent of Pushani Bai's share. The first appellate Court further recorded a finding that plaintiffs never sought the relief that they, being the legal heirs of Sitaram, would succeed the property of Pushani Bai, but in order to avoid multiplicity of the suit, the said relief is granted to the plaintiffs by virtue of Order 7 Rule 7 of the CPC, as such, plaintiffs will be entitled for Pushani Bai's share i.e. 1/3rd share in the suit property being 4.40 acres and thus, allowed the appeal in part.

9. Questioning the said judgment and decree of the first appellate Court, this Second Appeal under Section 100 of the CPC has been preferred by the defendants in which two substantial questions of law were formulated and are set out in the opening paragraph of this judgment. It is appropriate to mention at this juncture that

during the pendency of this second appeal, plaintiffs filed an application under Order 6 Rule 17 marked as I.A. No. 2 seeking amendment in the plaint. This Court, vide order dated 01/04/2015, allowed that application and accordingly, plaintiffs amended their plaint and sought additional reliefs for declaration of title and possession of Pushani Bai's 1/3rd share in the suit property.

10.Mr. Rakesh Thakur, learned counsel appearing for the appellants/defendants would submit that the first appellate Court, after having principally agreed with the finding recorded by the trial Court that the suit property was exclusively held by Sitaram and he, authorizedly and competently, alienated the suit property in favour of his two nephews i.e. defendants No. 1 and 3 and his second wife Pushani Bai, was absolutely unjustified in partly decreeing plaintiffs' suit by holding that after the death of Pushani Bai, her share would resort back to Sitaram and plaintiffs being the legal heirs of Sitaram would succeed the suit property upto the extent of Pushani Bai's share, as neither there was any pleading nor any relief sought in the suit for

declaration of title over Pushani Bai's share in the suit property. Pushani Bai admittedly, died way back in the year 1972 and plaintiffs filed the suit before the trial Court on 26/07/1982 i.e. ten years after her death, therefore, the first appellate Court has gravely erred in granting the relief which was neither claimed by the plaintiffs in the original plaint and nor it was tried and defendants had no opportunity to contest the said issue before the two Courts below. In order to buttress his submission, learned counsel for the appellants/defendants would highly rely upon the decisions rendered by the Supreme Court in the matters of Bachhaj Nahar v. Nilima Mandal and Ors.1 and Ratanlal alias Babulal Chunilal Samsuka v. Sundarabai Govardhandas Samsuka (D.) Th. Lrs. And Ors.2 and submit that the judgment and decree of the first appellate Court upto that extent as recorded in paragraphs 20 and 21 deserves to be set aside and the second appeal deserves to be allowed.

11.Mr. R.N. Jha, learned counsel appearing for the respondents/plaintiffs would submit that only the 1 AIR 2009 SC 1103 2 AIR 2017 SC 5797

relief of permanent injunction was claimed originally in the suit, but later on, in the first appellate Court application under Order 6 Rule 17 of the CPC was filed by the plaintiffs and amendment was sought for declaration of title and possession in the plaint and would submit that on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, it is always open to a Court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for and places reliance upon the decision rendered by the Supreme Court in the matter of Dharmarajan and Ors. v. Valliammal and Ors.3 12.I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

13.As mentioned above in paragraph 3 of this judgment, the suit property was held by Sitaram and admittedly, during his lifetime, he alienated the suit property in favour of his nephews i.e. defendants No. 1 and 3 and his second wife i.e. 3 2008 AIR SCW 155

Pushani Bai vide sale deed dated 08/07/1969 (Ex. D/1) and it is the case of the defendants that peaceful possession of the suit property was delivered to them and since then, they have been in possession of the suit property. Thereafter, Sitaram and Pushani Bai died in the year 1972. 14.Plaintiffs brought the suit on 26/07/1982 only for permanent injunction stating inter alia that the suit property admeasuring 13.28 acres in total sold by Sitaram in favour of defendants No. 1 to 3 and pushani Bai by the sale deed (Ex. D/4) is a nominal sale deed and it is not a real and outright sale, therefore, title has not passed upon defendants No.

exclusively held by Sitaram and he has rightly and competently alienated the suit property in favour of defendants No. 1 and 3 and Pushani Bai and he did not question that sale deed during his lifetime therefore, after his death, their grandsons i.e. plaintiffs cannot be permitted to question it. But surprisingly, the first appellate Court further held that since one of the purchasers Pushani Bai i.e. second wife of Sitaram has already died, her share would resort to her husband Sitaram and thereafter, to his heirs i.e. plaintiffs which has also been contended by Mr. Jha, learned counsel for the respondents/plaintiffs and though, such a relief has not been sought by the petitioners in their suit, but yet to avoid the multiplicity of the suit, plaintiffs are entitled for Pushani Bai's share in the suit property i.e. 4.40 acres out of the total of 13.28 acres.

15.The fact that deserves to be noticed is that the suit was filed on 26/07/1982 i.e. 10 years after the death of Pushani Bai and the plaintiffs were well aware that Pushani Bai had died in the year 1972, but still while filing the suit, they only sought relief of permanent injunction and claimed

that the alienation made by Sitaram in favour of defendants No. 1 and 3 and Pushani Bai is void and illegal and yet they did not challenge the said sale deed. That was not found favour with by the trial Court and it held that plaintiffs are not entitled for permanent injunction as the defendants are in possession of the suit property.

16.It was not the case of the plaintiffs before either of the two Courts below that since Pushani Bai has died issueless, therefore, they, being the legal heirs of her husband Sitaram, would succeed to Pushani Bai's share of the suit property and neither there was a suit for declaration of title on Pushani Bai's share. The plaintiffs rather laid a hostile claim against Pushani Bai that the sale deed dated 08/07/1969 (Ex. D/1) has not conferred any title upon her and they even sought invalidation of the said sale deed by way of application for amendment in the plaint filed before the first appellate Court, but the first appellate Court declined to allow their application for amendment and did not permit the plaintiffs to challenge the sale deed at a later stage in the first appeal, as such,

the said sale deed (Ex. D/1) has become final as the first appellate Court clearly held that the plaintiffs cannot be permitted to question the sale deed executed by Sitaram in favour of defendants No. 1 and 3 and Pushani Bai.

17.The Supreme Court, in the matter of Bachhaj Nahar (supra) highlighted the object and purpose of pleadings and held 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."

Their Lordships further held that relief can be granted only with reference to prayers made in the pleadings and held as under :- "16...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, nonjoinder 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."

18.Similarly, in the subsequent decision rendered in Ratanlal (supra), their Lordships of the Supreme Court have clearly held that the parties to a suit are always governed by their pleadings and any amount of evidence or proof adduced without there being proper pleading is of no consequence and will not come to the rescue of the parties. 19.At this stage, Mr. Jha, learned counsel for the respondents/plaintiffs would submit that he has

already amended the plaint pursuant to the order dated 01/04/2015 passed by this Court and has sought relied of grant of Pushani Bai's share to the plaintiffs.

20.Though the plaintiffs have been allowed to amend the plaint by this Court, but that is of no use or benefit to the plaintiffs. It is not the case that on the basis of subsequent events, amendment has been sought in the plaint. Pushani Bai admittedly, died much prior to the date of filing of the suit. Plaintiffs, for the reasons best known to them, did not file the suit for declaration of title and did not even seek relief of setting aside the sale deed (Ex. D/1) or declaration of sale deed as null and void which he took during the pendency of first appeal by filing an application for amendment which was not found favour with by the first appellate Court and ultimately, it was rejected by the first appellate Court. The plaintiffs cannot be permitted to suddenly take a u-turn in the midst of the litigation, firstly, taking calculated chance to only seek permanent injunction and when their suit for permanent injunction stood dismissed, then they sought relief of declaration

of title and possession of 1/3rd share in the suit property that after the death of Pushani Bai, they being her legal heirs, are entitled to succeed to the 1/3rd share of Pushani Bai. The amendment already incorporated in the plaint would not be of any consequence because the original suit was for permanent injunction simpliciter.

already available at the time of institution of the suit and it was deliberately, for the reasons not apparent on the face of the record, that the plaintiffs only filed a suit for permanent injunction simpliciter and not for declaration of title of Pushani Bai's share as well and even made hostile title against Pushani Bai. The first appellate Court has clearly erred in invoking Order 7 Rule 7 of the CPC granting relief of declaration of title and recovery of possession to the plaintiffs after having held that no relief was sought by the plaintiffs in the suit filed by them, but proceeded to grant such relief on the basis of the subsequent event i.e. death of Pushani Bai to avoid multiplicity of litigation.

21.The Supreme Court, in the matter of Om Prakash and Ors. v. Ram Kumar and Ors.4, has clearly held that a party cannot be granted a relief, which is not claimed, if the circumstances are such that granting such relief would result in serious prejudice to the interested party and deprive him of valuable rights under the statute. In reference to Order 7 Rule 7 of the CPC, it has 4 (1991) 1 SCC 441

further been held that plaintiff cannot base new cause of action on plea of defendant unless he amends the plaint or files separate proceedings. 22.In the matter of Satish Chand Makhan and Ors. v. Govardhan Das Byas and Ors.5, the Supreme Court has held that ordinarily a suit is tried in all its stages on the cause of action as it existed on the date of the institution, but the Court can look to subsequent events, when the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate, or (2) where it is necessary to take notice of the changed circumstances to shorten litigation, or (3) to do complete justice between the parties.

23.Furthermore, in the matter of Ganesh Shet v. Dr. C.S.G.K. Setty and Ors.6, their Lordships of the Supreme Court have held that under Order 7 Rule 7 of the CPC, the general or other relief, the Court may deem fit, sought by plaintiff can be granted only when it is consistent with the pleading as well as proof.

5 (1984) 1 SCC 369 6 (1998) 5 SCC 381

24.In Om Prakash Gupta v. Ranbir B. Goyal7, the Supreme Court has clearly held that subsequent events can be taken cognizance can be taken cognizance of only if Court's attention is invited towards them according to established rules of procedure so that the prerequisites of affording the opposite party an opportunity of meeting the new case and of determining the real questions in controversy are fulfilled by holding the following :- "11. The ordinary rule of civil law is that the rights of the parties stand crystalised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis.

such subsequent event is brought to the notice of the Court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. In Pasupuleti Venkateswarlu Vs. The Motor & General Traders - AIR 1975 SC 1409 this Court held that a fact arising after the lis, coming to the notice of the Court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the Court cannot be blinked at. The Court may in such cases bend the rules of procedure if no specific provision of law or rule of fairplay is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The court speaking through Krishna Iyer, J.

affirmed the proposition that court can, so long as the litigation pends, take note of updated facts to promote substantial justice.

cautions, and (iv) the rules of fairness to both sides should be scrupulously obeyed.

12. Such subsequent event may be one purely of law or founded on facts. In the former case, the Court may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6 Rule 17 of the CPC. Such subsequent event the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties. In Messrs. Trojan & Co. Vs. RM.

N.N. Nagappa Chettiar - AIR 1953 SC 235 this Court has held that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found;

without the amendment of the pleadings the Court would not be entitled to modify or alter the relief. In Sri Mahant Govind

Rao Vs. Sita Ram Kesho & Ors. - (1898) 25 Indian Appeals 195 (PC), their Lordships observed that, as a rule, relief not founded on the pleadings should not be granted.

13. Power of the Court to take note of subsequent events, specially at the appellate stage, came up for the consideration of a Full Bench of Nagpur High Court presided over by Justice Sinha (as His Lordship then was) in Chhote Khan Vs. Mohammad Obedulla Khan, AIR 1953 Nag

361. Hidayatullah, J. (as His Lordship then was) held, on a review of judicial opinion, that an action must be tried in all its stages on the cause of action as it existed at the commencement of the action. No doubt, Courts 'can' and sometimes 'must' take notice of subsequent events, but that is done merely 'inter partes' to shorten litigation but not to give to a defendant an advantage because a third party has acquired the right and title of the plaintiff. The doctrine itself is of an exceptional character only to be used in very special circumstances. It is all the more strictly applied in those cases where there is a judgment under appeal.

His Lordship quoted the statement of law made by Sir Asutosh Mookerjee, J. in a series of cases that merely because the plaintiff loses his title 'pendente lite'

is no reason for allowing his adversary to win if the corresponding right has not vested in the adversary but in a third party. "

25.The legal principle laid down in Om Prakash Gupta (supra) has consistently been followed by the Supreme Court in Ram Nibas Gagar (dead) by Lrs. v. Debojyoti Das and Ors.8, Ram Kumar Barnwal v. Ram Lakhan (dead)9, and Nidhi v. Ramkripal Sharma (dead) through Lrs.10 26.In view of the above-stated analysis, I am of the considered opinion that exercise of power by the first appellate Court in holding that plaintiffs are entitled for Pushani Bai's share in the suit property i.e. 4.40 acres, despite having recorded a finding that no relief was claimed by the plaintiffs with regard to the share of deceased Pushani Bai and granting the same by invoking Order 7 Rule 7 of the CPC, is wholly impermissible and bad in law which is not at all attracted in view of the legal position noticed herein-above. The first appellate Court has gravely erred in granting relief to the plaintiffs which was neither specifically pleaded 8 (2003) 1 SCC 472 9 (2007) 5 SCC 660 10 (2017) 5 SCC 640

by them and nor the other side was put to notice about the same. As such, the two substantial questions of law are answered in affirmative and the judgment and decree of the first appellate Court with respect to paragraphs 20 and 21 is hereby set aside and the relief granted to the plaintiffs thereby is also set aside.

27.Resultantly, the second appeal is allowed to the extent indicated herein-above and plaintiffs' suit would stand dismissed leaving the parties to bear their own cost(s).

28.Decree be drawn-up accordingly.

Sd/- (Sanjay K. Agrawal) Judge Harneet