Chanan Singh and Others vs Gurdev Singh

Rameshwar Singh Malik, J.

C.M. No. 1556-C of 2014

Applicants seek condonation of delay of two days in filing the appeal. Application is supported by an affidavit.

Application is allowed for the reasons stated therein and delay of two days in filing the appeal is condoned.

C.M. stands disposed of.

C.M. No. 1557-C of 2014

Applicants seek condonation of delay of three days in refilling the appeal. Application is supported by an affidavit.

Application is allowed for the reasons stated therein and delay of three days in refiling the appeal is condoned.

C.M. stands disposed of.

R.S.A. No. 676 of 2014

Feeling aggrieved against the impugned judgment and decree passed by the learned lower appellate court, thereby decreeing the suit of the plaintiff-respondent in toto, defendants have approached this Court by way of present regular second appeal in a suit for permanent and mandatory injunction.

Briefly put, facts of the case are that plaintiff-respondent filed the suit on the ground that he was owner in possession of the suit property. Defendants were having no right or claim on the property in dispute. However, defendants were threatening the plaintiff to dispossess from the suit land, thereby compelling him to file the present suit.

On being put to notice, defendants appeared and filed their written statement denying all the allegations of the plaintiff. It was pleaded that plaintiff was not in possession over the suit property. It was further pleaded that property of the defendants was adjoining to the property of plaintiff and he was trying to encroach upon the property of the defendants. Alleging the averments in the plaint to be false and frivolous, dismissal of the suit was prayed for.

On completion of pleadings of the parties, the learned trial court framed the following issues:-

"1. Whether plaintiff is entitled for permanent injunction as prayed for? OPP.

1-A) Whether plaintiff is entitled to the relief of mandatory injunction as prayed for.? OPP.

Whether the suit is not maintainable? OPD.

Relief."

With a view to prove their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought on record, learned trial court came to the conclusion that plaintiff has duly proved his case. However, it was also held that as per demarcation report, plaintiff was found to have encroached upon 3 biswas of land, which was in the name of defendants and even defendants have also encroached upon 1 biswa of land which was ownership of the plaintiff. Accordingly, suit was partly decreed vide judgment dated 11.4.2012. Defendants were directed to hand over the possession of land measuring 1 biswa to the plaintiff, which was belonging to him. However, plaintiff was also directed to hand over the possession of land measuring 3 biswas to the defendants, which was belonging to them. Defendants felt satisfied. However, plaintiff-respondent filed his first appeal for modifying the decree granted by the learned trial court, so as to decree his suit in toto.

The appeal was partly allowed by modifying the judgment and decree of learned trial court, holding that relief granted by the learned trial court in favour of defendants was not sustainable and that part of judgment and decree was set aside. Suit of the plaintiff-respondent for permanent injunction was decreed, besides issuing mandatory injunction against the defendants regarding 1 biswa of land in khasra No. 479, already granted by the learned trial court. Hence this second appeal at the hands of the defendants.

Learned counsel for the appellants submits that learned lower appellate court has misdirected itself, while decreeing the suit of the plaintiff for permanent injunction as well. He further submits that it was not necessary for the defendants to pray for the relief, and it was well within the powers of learned lower appellate court, to grant such a relief in favour of defendants-appellants, while exercising its powers under Order 41 Rule 33 CPC. Placing reliance on the judgments in Nichhalbhai Vallabhai and Others Vs. Jaswantlal Zinabhai and Others, , Chamela Ram Vs. Hukma and Another , Major Singh Vs. Joginder Singh and Another, , learned counsel for the appellants prays for setting aside the impugned judgment and decree passed by the learned lower appellate court, by allowing the present appeal.

Having heard the learned counsel for the appellants at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the arguments advanced, this Court is of the considered opinion that in the given fact situation of the case, coupled with the fact that no substantial question of law is involved, no interference is warranted at the hands of this Court, while exercising its appellate jurisdiction under Section 100 of the Code of Civil Procedure (CPC for short), for the following more than one reasons.

It is a matter of record and not in dispute that plaintiff-respondent was owner in possession of 14 bigas 0 biswas of land, as detailed in the head note of the plaint. It was also undisputed on record that land of the appellants-defendants was adjoining to the land of plaintiff-respondent. Pleaded case of the plaintiff-respondent was that the defendants-appellants have encroached upon 3 biswas of his land. In order to prove his case, plaintiff produced the jamabandi for the year 1998-99 (Ex. P1), khasra girdawari for the years 1999-2001 (Ex. P2) and Aksh Sazra as Mark P1 and demarcation report as Mark. P2. A revenue official was appointed as Local Commissioner by the learned trial court to demarcate the land. It was reported in the demarcation report that defendants have encroached upon 1 biswa land of the plaintiff and he was also stated to be in possession of land measuring 3 biswas belonging to defendants.

Plaintiff filed his objection to the report of Local Commissioner. However, defendants neither pleaded anything in this regard in their written statement, nor they set up any counter claim. Except, self serving statement of Chanan Singh-defendant No. 1 who alone entered in the witness box as DW 1, there was no evidence led by the defendants to show that plaintiff was in possession of any piece of land belonging to them. They also did not file any objection to the report of the Local Commissioner. Since there was no pleading of the defendants in this regard, no issue was framed to that effect. In these circumstances, it was rightly held by the learned lower appellate court that the learned trial court exceeded its jurisdiction while granting relief in favour of the defendants without there being any pleading, counter claim or evidence and prayer made in that regard. Having said that, this Court feels no hesitation to conclude that learned lower appellate court did not commit any error of law, while modifying the decree of the learned trial court to the extent indicated hereinabove.

Demarcation of the land was conducted by the Local Commissioner as far back as on 6.6.2008 whereas the suit came to be decided on 11.4.2012. Even after coming to know about the demarcation report, defendants-appellants did nothing either by seeking amendment in their written statement with a view to set up their counter claim, nor they filed any objection to the demarcation report. In fact, defendants-appellants did nothing as if they were not at all aggrieved against the entire case set up by the plaintiff. They had no objection against the entire case set up by the plaintiff.

In such a situation, when there was no averment taken by the defendants in their pleadings, their evidence could not have been admissible. It is so said, because in the absence of pleading, no evidence is admissible. Not only that, even after having been put to notice in the appeal filed by the plaintiff, the defendants neither filed any cross appeal nor they raised such plea. In such a situation, learned lower appellate court was not required to exercise its powers under Order 41 Rule 33 CPC. Thus, impugned judgment and decree passed by the learned Additional District Judge, Patiala deserve to be upheld.

As noticed hereinabove, neither there was any pleading nor any issue was framed as to whether plaintiff was in possession of any portion of the land of the defendants-appellants. In the absence of any plea, no evidence including the demarcation report Ex. D1 was admissible in favour of the defendants-appellants.

The view taken by this Court also finds support from the judgment of the Hon''ble Supreme Court in Prataprai N. Kothari Vs. John Braganza, and the observations made in para 10 of the judgment, which can be gainfully followed in the present case, read as under:-

"10. Reliance was sought to be placed on the additional evidence admitted by the learned Single Judge during the pendency of the appeals to prove that the appellant had title to the property. It is settled law that in the absence of any plea, no evidence is admissible. The Single Judge of the High Court over-looked that when there was no plea or issue on the question of title, no evidence whatever was admissible regarding the same. He acted beyond his jurisdiction in permitting additional evidence to be filed in appeals."

Similarly, this Court in the case of Maghar Singh Vs. Gurmel Singh and Others, , observed as under:-

"After hearing the learned counsel for the parties and perusing the record, I do not feel persuaded to take a different view than the one taken by the learned lower appellate Court because it is well-settled that no amount of evidence could be a substitute to the pleadings which are the foundation to build up a case. In the pleadings, necessary and material facts constituting substantive rights claimed and liabilities assumed by the parties must be incorporated. No amount of evidence would be a substitute for pleadings concerning substantive rights and liabilities. In this regard, reliance can be placed on a judgment of the Supreme Court in the case of Dr. Ashok Kumar Maheshwari Vs. State of U.P. and Another, . In that case, the doctrine of promissory estoppel was invoked but the plea was repelled on the ground that there were inadequate pleadings. A Constitution Bench in the case of H.H. Shri Swamiji of Shri Amar Mutt and Others Vs. Commissioner, Hindu Religious and Charitable Endowments Department and Others, has laid down that a concised statement of material facts is necessary for the petitioner to plead and corresponding reply on behalf of the respondent because it enables the parties to formulate their case in preparation of the hearing beside giving fair notice of the case of either side. The view of the Constitution Bench in this regard read as under:-

"35. In other words, a pleading or a statement of the material facts is necessary on the side of the petitioner and, if his claim is contested, on the side of the respondent, for that enables them to formulate their case is the preparation of the hearing. Besides giving fair notice of the case of either side, that defines the points at issue and confines the controversy to them. It also enables the parties to bring out their evidence to best advantage, and eliminates prejudices or a snap decision. Pleading are thus of vital importance, for it there is no pleading of the necessary facts in a petition for the redress of a grievance, the petitioner has himself to thank for his ultimate discomfiture on that account."

Similar view has also been taken by the Supreme Court in the case of Amla Chakravarty (Dead) through L.Rs. v. Ranjit Kumar Choudhary, (2000) 10 Supreme Court Cases 339. In this regard, the views of their Lordships read under:-

"a) ... So far as the third submission is concerned, a perusal of the pleading in the plaint shows that the suit filed by the landlord was on the basis of the second lease dated 2.12.1970, although it was not specifically referred to in the plaint. In the written statement the tenant admitted that the plaintiff is a landlord and he is a tenant. It was also admitted therein that there existed a relationship of landlord and tenant between him and the plaintiff, and further he has been paying rent to the plaintiff. It was very well understood before the trial court that the parties were litigating on the basis of the second lease deed, namely, lease deed dated 2.12.1970. It is no doubt true that one of the preliminary objections taken by the tenant in his written statement was that the suit was bad for nonjoinder of the other legal heirs of the original tenant and also an issue was struck to that effect. But the mere objection of framing of an issue in that respect was not sufficient, as no factual foundation was laid in that regard in the written statement and, therefore, there was no occasion for the Court to embark upon the said inquiry. There having been no factual foundation about the said plea, the High Court was not justified in entering into that question."

The abovesaid law laid down by the Hon''ble Supreme Court in John Braganza''s case (supra) and this Court in Maghar Singh''s case (supra), was further reiterated by this Court in the case of Darshan Kaur Vs. The Amritsar Primary Co-operative Agricultural Development Bank Limited and Another, .

In view of the law laid down by the Hon''ble Supreme Court and this Court in the judgments referred to hereinabove, it can be safely concluded that the appellants miserably failed to lay the factual foundation about their claim in their pleadings. There was no issue framed, nor any argument was raised before the learned trial court in this regard. Thus, the learned trial court exceeded its jurisdiction while directing the plaintiff to hand over the possession of land measuring 3 biswas to the defendants. Such a judgment and decree based on patently illegal findings was rightly modified by the learned lower appellate court, while setting aside the illegal part of the judgment and decree.

No doubt, powers of Court under Order 41 Rule 33 CPC are wide, yet it is equally true that such powers are to be exercised judiciously and with circumspection, because this power is also subject to certain limitations. The law laid down by the Hon''ble Supreme Court in this regard, in Banarsi and Others Vs. Ram Phal, which aptly apply here, read as under:-

"In Rameshwar Prasad and Others Vs. Shyam Beharilal Jagannath and Others, , the three-Judge Bench speaking through Raghubar Dayal, J. observed that Rule 33 really provides as to what the Appellate Court can find the appellant entitled to and empowers the Appellate Court to pass any decree and make any order which ought to have been passed or made in the proceedings before it and thus could have reference only to the nature of the decree or order in so far as it affects the rights of the appellant. If further empowers the Appellate Court to pass or make such further or other, decree or order, as the case may require. The Court is thus given wide discretion to pass such decrees and orders as the interests of justice demand. Such a power is to be exercised in exceptional cases when its non exercise will lead to difficulties in the adjustment of rights of the various parties.

(vide Para 17, emphasis supplied)

In Harihar Prasad Singh and Others Vs. Balmiki Prasad Singh and Others, , the following statement of law made by Venkatarama Aiyar, J. (as His Lordship then was) in the Division Bench decision in Venukuri Krishna Reddi and Another Vs. Kota Ramireddi and Others, was cited with approval which clearly brings out the wide scope of power contained in Rule 33 and the illustration appended thereto, as also the limitations on such power:

"Though Order 41, Rule 33 confers wide and unlimited jurisdiction on Courts to pass a decree in favour of a party who has not preferred any appeal, there are, however certain well-defined principles in accordance with which that jurisdiction should be exercised. Normally, a party who is aggrieved by a decree should, if he seeks to escape from its operation, appeal against it within the time allowed after complying with the requirements of law. Where he fails to do so, no relief should ordinarily be given to him under Order 41, Rule 33.

But there are well-recognised exceptions to this rule. One is where as a result of interference in favour of the appellant it becomes necessary to readjust the rights of other parties. A second class of cases based on the same principle is where the question is one of settling mutual rights and obligations between the same parties. A third class of cases is when the relief prayed for is single and indivisible but is claimed against a number of defendants. In such cases, if the suit is decreed and there is an appeal only by some of the defendants and if the relief is granted only to the appellants there is the possibility that there might come into operation at the same time and with reference to the same subject-matter two decrees which are inconsistent and contradictory. This, however, is not an exhaustive enumeration of the class of cases in which courts could interfere under Order 41, Rule 33. Such an enumeration would neither be possible nor even desirable."

In the words of J.C. Shah, J. speaking for a three-Judge Bench of this Court in Nirmala Bala Ghose and Another Vs. Balai Chand Ghose and Others, , the limitation on discretion operating as bounds of the width of power conferred by Rule 33 can be so formulated-

"The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties. Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by O. 41 R. 33 may properly be invoked. The rule however does not confer an unrestricted right to re-open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from." (Para 22)

The abovesaid law laid down by the Hon''ble Supreme Court is based on the consistent view, taken right from the year 1965 in the case of Nirmala Bala Ghose and Another Vs. Balai Chand Ghose and Others, . The law laid down by the Hon''ble Supreme Court in Banarsi''s case (supra) was further reiterated in Pralhad and Others Vs. State of Maharashtra and Another, .

So far as the judgments relied upon by the learned counsel for the appellants are concerned, there is no doubt about the law laid down therein, however, the same are of no help to the appellants, because the cited judgments were rendered in entirely different set of facts. It is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judge made law thereto. Sometimes, difference of one circumstance or additional fact can make the world of difference, as held by the Hon''ble Supreme Court in Padmasundara Rao and Others Vs. State of Tamil Nadu and Others, .

Reverting back to the facts of the present case and respectfully following the law laid down by the Hon''ble Supreme Court as well as this Court in the judgments, referred hereinabove, it is unhesitatingly held that present case would clearly fall in second exception to Order 41 Rule 33, as laid down by the Hon''ble Supreme Court in Banarsi''s case (supra).

The second exception enumerated in para 15 of the judgment was that the court will not exercise its power under Order 41 Rule 33 CPC, so as to revive a given up claim. In the present case, as discussed hereinabove, there was no pleading, no issue framed and no argument was raised before the learned trial court despite the demarcation report Ex. D1. In spite of this fact situation, the learned trial court proceeded without jurisdiction while granting relief in favour of the defendants in the suit filed by the plaintiff, issuing mandatory injunction against the plaintiff himself, which was not permissible in law.

Thus, the learned lower appellate court rightly did not exercise its powers under Order 41 Rule 33 CPC, in favour of the appellants-defendants because despite having been put to notice in the appeal filed by the plaintiff, they did not file any cross objection. Further, any cross appeal or cross objection on behalf of the defendants-appellants would not have been even maintainable in the absence of any pleading, framing of issue or leading evidence at the instance of the defendants-appellants. In view of what has been discussed hereinabove, it is held that the learned lower appellate court came to a judicious conclusion, while passing the impugned judgment and decree, which are based on sound reasons and deserve to be upheld.

It is too late in the day for the appellants-defendants to seek amendment in the written statement. Further, careful perusal of the contents of the application bearing C.M. No. 1559-C of 2014 under Order 6 Rule 17 read with Section 151 CPC, shows that no plausible reason, whatsoever, has been given by the appellants as to why they could not seek amendment in the written statement, before the learned trial court itself. They did not do so even after receipt of demarcation report, which was submitted as far back as on 6.6.2008, whereas the suit came to be decided on 11.4.2012. Thus, totally unexplained delay and overall conduct of the applicant-appellants also disentitled them for seeking amendment in their written statement at this belated stage. Thus, application for amendment is bereft of merit, being based on an afterthought. The application having been found totally without any merit, is liable to be dismissed. Ordered accordingly.

During the course of hearing, learned counsel for the appellants failed to point out any jurisdictional error or patent illegality apparent on the record of the case, in the impugned judgment and decree passed by the learned lower appellate court. He also failed to put into service any substantive argument, so as to convince this Court to take a different view than the one taken by the learned lower appellate court. Further, no question of law much less substantial question of law has been found involved in the present case, which is sine qua non for interference at the hands of this Court, while exercising its appellate jurisdiction under Section 100 CPC. Thus, the impugned judgment and decree passed by the learned lower appellate court deserve to be upheld.

No other argument was raised.

Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present appeal is misconceived and without any substance. Thus, it must fail. No case for interference has been made out. Resultantly, the instant regular second appeal stands dismissed, however, with no order as to costs.