Chandra Shekhar Mishra and Others vs Shambhu Sharan

Krishna Murari, J.—Heard Shri Tripathi B.G. Bhai, learned Counsel for the Petitioners and Shri D.K. Singh for the Respondent.

Undisputed facts are that Original Suit No. 161 of 2003 was filed by the Plaintiff-Petitioners for a decree of possession and damages for use and occupation of the property in question on the allegation that the property has devolved upon them under a family settlement and they are the owner of the property in question. The Defendant-Respondent entered appearance and filed their written statement denying the plaint allegation. On the basis of the pleadings of the parties, issues were framed and the parties also filed documentary evidence in support of the respective cases. Thereafter, at the stage of oral evidence, an application was filed by the Plaintiff-Petitioners to bring on record the copy of some sale deed dated 2.1.1964 and memorandum of family settlement dated 26.4.1985 as evidence with a prayer to grant leave and take on record the said documents as evidence. Trial court vide order dated 9.7.2008 dismissed the application. Aggrieved, the Plaintiff-Petitioners went up in revision which has also been dismissed. Both the courts below have refused to take the documents in evidence on the ground that there is no pleading in respect of the same in the plaint. Trial court has categorically held that neither there is any reference of the sale deed dated 2.1.1964 in the plaint nor there is any reference of family settlement dated 26.4.1985 and in the absence of pleading in this regard, the documents cannot be permitted to be taken as evidence.

Learned Counsel for the Petitioner has submitted that since in paragraph 6 of the plaint, it was categorically mentioned that property has been devolved upon them under a family settlement and they were exclusively owners thereof, as such, it cannot be said that documents being filed were beyond the pleadings by the parties.

In reply, learned Counsel for the Respondent has submitted that the suit was for possession and on the ground that the Defendant-Respondent was tenant and the tenancy was terminated, and thus, they were liable to be ejected and in view of the above facts and the fact that there was no pleading with respect to sale deed and family settlement, the documents which were sought to be brought on record being beyond pleadings were rightly not taken on record by the courts below.

I have considered the argument advanced on behalf of the learned Counsel for the parties and perused the record.

A perusal of the plaint goes to show that the Defendant-Respondent was shown as tenant in the property and decree for possession was claimed on the ground that tenancy was terminated by a notice u/s 106 of the Transfer of Property Act. Perusal of the plaint further goes to show that there was no pleading with respect to sale deed dated 2.1.1964 or memorandum of family settlement dated 26.4.1985.

Hon''ble Apex Court in the case of Ram Sarup Gupta (Dead) by Lrs. Vs. Bishun Narain Inter College and Others, , has held that in the absence of pleading, evidence, if any, produced by the parties cannot be considered and no party should be permitted to travel beyond its pleading and all necessary and material facts should be pleaded by the party in support of the case set up by it. Hon''ble Apex Court has further observed that 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.

In the absence of any pleadings in respect of the documents which were being sought to be brought on record as evidence, the courts below appears to have committed no illegality in rejecting the prayer.

In view of the aforesaid facts and discussions, the writ petition is devoid of merits and, accordingly, stands dismissed. However, there shall be no order as to costs.