Jagan Nath v. Suresh Kumar & ORS.
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* "The genesis of the present appeal, shorn of unnecessary detail, lies in the institution of a suit for partition by the plaintiffs, wherein it was pleaded that the immovable property comprising three rooms along with the entire area measuring 42′ × 46′, as fully described in the plaint and situated in Village Bakhli, was originally owned and possessed by one Atma Ram. The lineage of the parties was duly pleaded and stands reflected in the pedigree table reproduced in paragraph 2 of the impugned judgment.
It was further asserted that the suit property is ancestral in nature, having descended from one Ram, and that the parties to the suit derive their respective rights and interests therein through Atma Ram. The plaintiffs specifically pleaded that the respective shares of the parties in the said house are as under:( - 1/6th share
- 1/3rd share
- 1/3rd share
- 1/6th share
It was categorically averred that the aforesaid property has never been subjected to partition and continues to remain joint. The plaintiffs further alleged that the parties had merely permitted Ram Kishan, son of Atma Ram, to use the suit property; however, the said Ram Kishan, acting in collusion with defendant No.1, subsequently began to deny and repudiate the ownership rights of the plaintiffs, thereby giving rise to the present lis.
Proceeding further with their case, the plaintiffs pleaded that they are residing away from the suit property, whereas defendant No.1, taking undue advantage of their absence, has allegedly procured certain judicial pronouncements asserting exclusive ownership over the suit property and has been extending threats to assume exclusive possession thereof. It was asserted that such unilateral claims and conduct on the part of defendant No.1 have cast a cloud upon the lawful rights and interests of the plaintiffs, thereby compelling them to seek partition of the joint holding."
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entered appearance and contested the suit by filing a written statement.
, on the other hand, filed a written statement admitting the claim of the plaintiffs, whereas the remaining defendants failed to appear despite due service and were, accordingly, proceeded against ex parte.
Setting up a defence in clear opposition to the plaintiffs' claim, defendant No.1 challenged the maintainability of the suit on multiple grounds, including misjoinder and non(joinder of necessary parties, lack of jurisdiction of the Civil Court, and absence of any cause of action. It was further alleged that the suit had been instituted by
suppressing and concealing material facts and that the plaintiffs have no subsisting right, title, or interest in the suit property. Defendant No.1 specifically asserted that the suit property never belonged to Atma Ram and that he himself owns no ancestral property traceable to Atma Ram. According to him, the suit property originally belonged to Smt. Tulsan, the maternal grandmother of Radha Krishan, son of Atma Ram and father of defendant No.1, who was a resident of Village Bakhli. It was claimed that defendant No.1 inherited the suit property through his father, who, in turn, had inherited the same from Smt. Tulsan. It was emphatically denied that Ram Kishan owned any property whatsoever in Village Bakhli.
Elaborating further upon the defence, it was pleaded that Ram Kishan had merely taken the suit property on rent from defendant No.1 for a period of six months, commencing from 19.10.1981 and ending on ₹ 18.04.1982, at a monthly rent of 50/(, and had executed a rent note to that effect. It was categorically asserted that the plaintiffs have no concern, right, or interest in the suit property in any manner whatsoever."
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Whether the plaintiffs and defendant no.1 to 10 are the joint owners in possession of the suit property? OPP.
2.
If, issue No.1 is proved what are the share of the parties? OPP 3.
Whether the suit is not maintainable ? OPD 4.
Whether the suit is bad for the non(joinder of necessary parties? OPD 5.
Whether the suit is bad for the purposes of court fee and jurisdiction ? OPD 6.
Whether the plaintiffs have facts suppressed the true and material from the court, if so its effect ? OPD 7.
Relief :
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'" ( 8For the reasons aforestated and in view of the conclusions arrived at on the issues under consideration, the suit instituted by the plaintiffs fails and is hereby
with costs 9
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'inter alia' *)" ( "Accordingly, to the aforesaid extent, the findings returned by the learned Trial Court are hereby set aside and reversed. A preliminary decree for partition is ordered to be drawn, declaring that the suit property is jointly owned and possessed by the parties to the decree. The respective shares of the parties are declared as under:( ➢
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Consequently, the appeal preferred by the plaintiffs stands
to the aforesaid extent, and the suit is decreed accordingly." 4 , / "# @ /' 0 > '
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12. "The counsel for the appellants could not dislodge the findings recorded by the learned trial court. to the effect that the suit land is
' not held to be ownership of Atma Ram predecessor(in(interest it af the has come in evidence that Tulsan However, maternal grand( mother defendant no.1 as Predecessor(in(interest of well Radha Krisha, as and Kishan Ram parties. Was the father of Bansi of plaintiffs and defendants No..8,9 and 10 as admitted by defendant no.1 while appearing in the witness box. There was no will or further mode of succession of the property of said Tulsan. The natural succession would, therefore, devolve upon al the three brothers namely Bansi, Ram Kishan Krishan. to That being so the parties shall be the share as detailed in the plaint. counsel for replication and Radha entitled However, the respondent has submitted that the plaintiffs the in the have not. admitted the allegation of the defendants that the property was owned by Tulsan.
Now they cannot claim this right. In Dr. Mahesh Chand Sharma vs. Smt. Kumari Sharma and others, AIR 1946 (SC) 869 cannot they support, he has placed reliance upon Sharma I have perused this authority very carefully and find that the same is of no help to the respondents. that case, a specific plea was raised but was in the labour court and in those circumstances, it not allowed to raised be in I In abandoned whereas Was the appeal, authority Firm Sriniwas Ram Kumar Vs. Mahabir Prasad and others, A.I.R. (38) 1951 Supreme 177 by that relied upon counsel for the appellants is fully applicable. In case, the plaintiffs filed suit for specific performance of the contract alleging that they have made payment as earnest money. The learned trial of reversed the Rs.30,000/( dismissed the suit for specific performance but the suit for Rs.
30,000/( although there was no prayer to that effect. That decree was set aside by the Hon'ble High Court.
( granting the relief. Because, there is nothing in the Civil Procedure Code to debar the plaintiff from seeking alternative plea. Simply because the plaintiffs have not taken alternative plea, it does not mean that the relief cannot be granted. Now in the present case when the parties have entered into issues and have adduced evidence, and if it is proved on the file, that the land belonged Tulsan, then unless there is some special mode of succession of property from Tulsan is proved, by the defendants, natural succession would follow. In that circumstances all the plaintiffs become co(shares in the suit land as per share detailed in the plant. That being so, by holding that the land originally belongs to Tulsan, the plaintiffs are entitled to 1/6th share of the land, as claimed by them."
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"It is settled that the decision of a case cannot be based on the grounds outside the pleadings of the parties and it is the case pleaded that has to be found without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint, so to incorporate in it in alternative case." ,2 - $ )!0 3!0 ,
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/ *) *) "The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In such a case it is duty of the Court to ascertain the substance of the pleadings to determine the question."
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/ 8the Court cannot take into consideration any fact which travels beyond the pleadings of the parties. It was further held that the parties are required to raise proper pleadings and establish, by leading cogent evidence, that on account of a particular irregularity or illegality, the result of the election has been materially affected. 9 ,6 - +7 )" &! / & 8'
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* # 8That the property detailed in para No.1 of the plaint is ancestral of the parties and has been in ownership of Atma Ram. 9 ,4 % ' ) '
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8 # $ '9 ) + , 8Aatma Ram had no property in his own name. Suit property was originally belong to Smt. Tulsa (Nani) maternal grandmother of Radha Krishan son of Aatma Ram i.e. father of the answering defendant, who was resident of village Bakhil, Tehsil Pehowa and defendant No.1 has inherited or succeeded suit property from his father who has inherited the same from Nanni i.e. Smt. Tulsan.9 ,4 , - )
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* # + 2 *' 8Para No.2 of the written statement is wrong and that of the plaint is correct, the property was in ownership of Aatma Ram. It is wrong that property is ownership of Tulsan 9 ,5 - "
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( )& (** has held that 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 paint.
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(+ ( " ") Whether reasoned / speaking?
Yes / No Whether reportable?
Yes / No