Bachhaj Nahar vs Nilima Mandal & Ors on 23 September, 2008

Supreme Court of India

Bachhaj Nahar vs Nilima Mandal & Ors on 23 September, 2008
Author: R V Raveendran
Bench: R.V. Raveendran, Lokeshwar Singh Panta
1

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.5798-5799 OF 2008

(Arising out of SLP ) Nos.23766-67 of 2005)

Bachhaj Nahar ... Appellant

Vs.

Nilima Mandal & Anr. ... Respondents

O R D E R

R. V. Raveendran J.

Leave granted. Heard the learned counsel. For convenience, the parties will be referred to also by
their ranks in the suit.

The facts

2. Respondents 1 and 2 (plaintiffs) filed a suit for declaration, possession and injunction (Title suit
no.133/1982 on the file of Sadar Munsiff, Purnia) against the appellant (first defendant) and Sujash
Kumar Ghosh (second defendant) in regard to the suit property. The suit property is a strip of land
measuring East to West : 72 feet and North to South : 1'3" on the Western side and 10" on the
Eastern side described in Schedule `B' to the plaint. Plaintiffs claimed that the suit property was a
part of the `A' schedule property purchased by them under sale deed dated 29.12.1962. The reliefs
sought in the said suit were :

(i) declarations that (a) the plaintiffs are the absolute owners in possession of the suit property; (b)
the defendants do not have any right, title or interest or possession in respect of suit property; and
(c) the first defendant had illegally encroached and started construction in the suit property;

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(ii) a direction to first defendant to deliver possession of the suit property to plaintiffs after
demolishing the construction over the same; and

(iii) a permanent injunction restraining first defendant from interfering with the suit property.

3. The first defendant resisted the suit contending that he had purchased the property to the South
of plaintiff's property from second defendant under sale deed dated 5.5.1982 and the suit property
actually formed part of his property. He contended that the plaintiffs had no right, title or interest in
the suit property.

4. The trial court framed the following issues :

(i) Is the suit as framed maintainable?

(ii) Have the plaintiffs got any cause of action to

file the suit as against these defendants?

(iii) Is the suit barred by limitation and also on the principle of waiver estoppel and acquiescence?

(iv) Whether the description of the suit land is vague?

(v) Whether the suit land is part and parcel of land of the plaintiff purchased through registered
kewala or the suit land in exclusive possession of Ishan Chand Ghosh, and after his death of second
defendant, and after purchase of first defendant.

(vi) Has first defendant encroached any portion of the suit land?

(vii) Whether the plaintiffs got title over the suit land? Or were they using the suit land under
express permission of the late Ishan Chand Ghosh and his son?

(viii) To what relief or reliefs, plaintiffs are entitled?

5. After considering the evidence, the trial court by judgment and decree dated 31.8.1987 decreed
the suit in part. It held that the suit property was part of plaintiffs' property and that first defendant
had encroached over a part of it to an extent of 15 sq. ft. The trial court held that as first defendant
had already put up his construction over the encroached portion and was using it, instead of
directing him to deliver back possession thereof, he should pay Rs.100/- as the price of the
encroached portion, to the plaintiffs. Feeling aggrieved, the first defendant filed an appeal. Plaintiffs
filed cross-objections. The first appellate court held that the plaintiffs had failed to prove that the
suit property was part of their property purchased under sale deed dated 29.12.1962 or that first
defendant had encroached upon any portion of plaintiffs' property; and that the evidence adduced
by plaintiffs established that the Gali (suit property) was earlier owned by Ishan Chand Ghosh and
his sons and plaintiffs were only using the said Gali with their express permission. The first
appellate court therefore allowed the appeal filed by first defendant and dismissed the

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cross-objections filed by the plaintiffs by judgment dated 12.1.1989. As a consequence the suit of the
plaintiffs was dismissed.

6. Feeling aggrieved, the plaintiffs filed a second appeal before the High Court. The High Court by
judgment dated 14.5.2004 allowed the second appeal. The High Court held that the plaintiffs had
failed to make out title to the suit property. It however held that plaintiffs had made out a case for
grant of relief based on easementary right of passage, in respect of the suit property, as they had
claimed in the plaint that they and their vendor had been using the suit property, and the first
defendant and DW6 had admitted such user. The High Court was of the view that the case based on
an easementary right could be considered even in the absence of any pleading or issue relating to an
easementary right, as the evidence available was sufficient to make out easementary right over the
suit property. The High Court therefore granted a permanent injunction restraining the first
defendant from interfering with the plaintiffs' use and enjoyment of the `right of passage' over the
suit property (as also of the persons living on the northern side of the suit property). The High Court
also observed that if there was any encroachment over the said passage by the first defendant, that
will have to be got removed by the "process of law". The High Court also issued a permanent
injunction restraining the plaintiffs from encroaching upon the suit property (passage) till the
plaintiffs got a declaration of their title over the suit property by a competent court. The first
defendant sought review of the said judgment. The review petition was dismissed by the High Court
by order dated 9.12.2004.

7. The said judgment and order on review application, of the High Court, are challenged by the first
defendant in these appeals by special leave. The Appellant contends that neither in law, nor on facts,
the High Court could have granted the aforesaid reliefs.

8. 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.

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.

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9. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all
issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its
object is also to ensure that each side is fully alive to the questions that are likely to be raised or
considered so that they may have an opportunity of placing the relevant evidence appropriate to the
issues before the court for its consideration. This Court has repeatedly held that the pleadings are
meant to give to each side intimation of the case of the other so that it may be met, to enable courts
to determine what is really at issue between the parties, and to prevent any deviation from the
course which litigation on particular causes must take.

10. The object of issues is to identify from the pleadings the questions or points required to be
decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to
make out a particular claim, or to seek a particular relief, are not found in the plaint, the court
cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an
appropriate issue. As a result the defendant does not get an opportunity to place the facts and
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.

11. The High Court has ignored the aforesaid principles relating to the object and necessity of
pleadings. Even though right of easement was not pleaded or claimed by the plaintiffs, and even
though parties were at issue only in regard to title and possession, it made out for the first time in
second appeal, a case of easement and granted relief based on an easementary right. For this
purpose, it relied upon the following observations of this Court in Nedunuri Kameswaramma v.
Sampati Subba Rao [AIR 1963 SC 884]:

"No doubt, no issue was framed, and the one, which was framed, could have been
more elaborate, but since the parties went to trial fully knowing the rival case and led
all the evidence not only in support of their contentions but in refutation of those of
the other side, it cannot be said that the absence of an issue was fatal to the case, or
that there was that mistrial which vitiates proceedings. We are, therefore, of opinion
that the suit could not be dismissed on this narrow ground, and also that there is no
need for a remit, as the evidence which has been led in the case is sufficient to reach
the right conclusion."

But the said observations were made in the context of absence of an issue, and not absence of
pleadings. The relevant principle relating to circumstances in which the deficiency in, or absence of,
pleadings could be ignored, was stated by a Constitution Bench of this Court in Bhagwati Prasad vs.
Shri Chandramaul - AIR 1966 SC 735 :

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"If a plea is not specifically made and yet it is covered by an issue by implication, and
the parties knew that the said plea was involved in the trial, then the mere fact that
the plea was not expressly taken in the pleadings would not necessarily disentitle a
party from relying upon 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) 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 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]

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12. It is thus clear that a case not specifically pleaded can be considered by the court
only where the pleadings in substance, though not in specific terms, 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 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.

13. A perusal of the plaint clearly shows that entire case of the plaintiffs was that they were the
owners of the suit property and that the first defendant had encroached upon it. The plaintiffs had
not pleaded, even as an alternative case, that they were entitled to an easementary right of passage
over the schedule property. The facts to be pleaded and proved for establishing title are different
from the facts that are to be pleaded and proved for making out an easementary right. A suit for
declaration of title and possession relates to the existence and establishment of natural rights which
inhere in a person by virtue of his ownership of a property. On the other hand, a suit for
enforcement of an easementary right, relates to a right possessed by a dominant owner/occupier
over a property not his own, having the effect of restricting the natural rights of the owner/occupier
of such property.

14. Easements may relate to a right of way, a right to light and air, right to draw water, right to
support, right to have overhanging eaves, right of drainage, right to a water course etc. Easements
can be acquired by different ways and are of different kinds, that is, easement by grant, easement of
necessity, easement by prescription, etc. A dominant owner seeking any declaratory or injunctive
relief relating to an easementary right shall have plead and prove the nature of easement, manner of
acquisition of the easementary right, and the manner of disturbance or obstruction to the
easementary right. The pleadings necessary to establish an easement by prescription, are different
from the pleadings and proof necessary for easement of necessity or easement by grant. In regard to
an easement by prescription, the plaintiff is required to plead and prove that he was in peaceful,
open and uninterrupted enjoyment of the right for a period of twenty years (ending within two years
next before the institution of the suit). He should also plead and prove that the right claimed was
enjoyed independent of any agreement with the owner of the property over which the right is
claimed, as any user with the express permission of the owner will be a licence and not an easement.

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For claiming an easement of necessity, the plaintiff has to plead that his dominant tenement and
defendant's servient tenement originally constituted a single tenement and the ownership thereof
vested in the same person and that there has been a severance of such ownership and that without
the easementary right claimed, the dominant tenement cannot be used. We may also note that the
pleadings necessary for establishing a right of passage is different from a right of drainage or right to
support of a roof or right to water course. We have referred to these aspects only to show that a
court cannot assume or infer a case of easementary right, by referring to a stray sentence here and a
stray sentence there in the pleading or evidence.

15. A right of easement can be declared only when the servient owner is a party to the suit. But
nowhere in the plaint, the plaintiffs allege, and nowhere in the judgment, the High Court holds, that
the first or second defendant is the owner of the suit property. While concluding that the plaintiffs
were not the owners of the suit property, the High Court has held that they have a better right as
compared to the first defendant and has also reserved liberty to the plaintiffs to get their title
established in a competent court. This means that the court did not recognize the first defendant as
the owner of the suit property. If the High Court was of the view that defendants were not the
owners of the suit property, it could not have granted declaration of easementary right as no such
relief could be granted unless the servient owner is impleaded as a defendant. It is also
ununderstandable as to how while declaring that plaintiffs have only an easementary right over the
suit property, the court can reserve a right to the plaintiffs to establish their title thereto by a
separate suit, when deciding a second appeal arising from a suit by the plaintiffs for declaration of
title. Nor is it understandable how the High Court could hold that the apart from plaintiffs, other
persons living adjacent to and north of the suit property were entitled to use the same as passage,
when they are not parties, and when they have not sought such a relief.

16. 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. 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 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.

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17. 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.

18. We accordingly allow these appeals and set aside the judgment and order of the High Court and
restore the judgment of the first appellate court. Parties to bear respective costs.

19. The learned counsel for respondents - plaintiffs submitted that the parties have been litigating
for more than quarter of a century over a small strip; and that without prejudice to their rights, if
some arrangement could be arrived at whereby the plaintiffs are permitted to have at least a `pakka
nala' for passage of effluents from their property, it may put an end to the dispute between the two
neighbours. All that we can observe is that it is always open to the parties to get any issue or dispute
settled by mediation or by direct negotiations. This observation should not however be construed as
recognition of any right in plaintiffs.

.......................................................................J [R. V. Raveendran]

..............................................................................J [Lokeshwar Singh Panta] New Delhi;

23.9.2008

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