Harnek Singh and Another vs Bhago

Mahesh Grover, J.—This Regular Second Appeal by the defendants is directed against the judgment and decree dated 20.3.1984 passed by the Additional District Judge, Sangrur (hereinafter described as ''the first appellate Court'') vide which judgment and decree dated 16.5.1983 of the Sub Judge Ist Class, Sunam (referred to hereinafter as ''the trial Court'') were set aside and the suit of the plaintiff-respondent was decreed.

The plaintiff had filed the suit against the defendants for possession of the land measuring 0-80-94 hectares as detailed in the headnote of the plaint on the ground that she had been dispossessed forcibly by them about 2-1/2 years ago.

The defendants took up the plea that they were rightful owner in possession of the suit property on the basis of a registered sale deed dated 27.10.1977 and that they had purchased this land for a total consideration of Rs. 14,000/- from the husband of the plaintiff. They pleaded that they were protected u/s 41 of the Transfer of Property Act, 1882 (for short, ''the Act''). They further pleaded that the mutation had been sanctioned by the Assistant Collector Ist Grade in their favour.

On the pleadings of the parties, as many as seven issues were framed by the trial Court, who, after appraisal of the entire evidence on record, dismissed the suit.

Feeling aggrieved, the plaintiff filed an appeal which was allowed by the first appellate Court.

Hence, this appeal by the defendants.

Learned Counsel for the defendants-appellants contended that there was no challenge to the sale deed made by the husband of the plaintiff and it is a suit for possession simpliciter on the premise that she had been dispossessed forcibly. He further contended that in the absence of any challenge to the sale deed, the possession could not have been ordered in favour of the plaintiff as the sale deed was a registered and a document of title on the basis of which mutation was entered.

On the other hand, learned Counsel for the plaintiff-respondent contended that Baldev Singh had suffered a decree in favour of the plaintiff on 5.4.1977 in which he had made a statement in her favour and the sale deed was allegedly executed by him on 27.10.1977. He further contended that on the said date, Baldev Singh was left with no right in the suit property and consequently, the sale deed could not have been executed by him. It was submitted that the passing of sale consideration has not been proved and, therefore, the sale was of a doubtful character and the defendants could not claim any benefit therefrom nor could they pleaded that they were entitled to protection u/s 41 of the Act.

I have thoughtfully considered the rival contentions and have perused the whole record.

The questions, whether Baldev Singh was left with any right in the suit property so as to enable him to alienate the same by way of sale deed in favour of the defendants and whether the said sale deed was without any consideration could have been gone into if there had been a challenge to the sale deed. The factum of sale deed and its existence in favour of the defendants-appellants was made known to the plaintiff-respondent at the earliest opportunity when the written statement was filed. However, the plaintiff took no steps to amend her pleadings so as to incorporate a challenge to the alleged sale deed on the basis of which the appellants had claimed possession, as also title. In the absence of such a challenge, the question whether Baldev Singh was having any right or title so as to confer upon him a right of alienation could not have been gone into. Likewise, the question whether the sale deed was for valid consideration could also not been looked into. There is no pleading to this effect and it is a settled principle of law that no amount of evidence can be looked into if the parties to the litigation do not lay a foundation by pleading such facts. The suit of the plaintiff-respondent was for possession simpliciter on the ground of forcible dispossession. These facts were also not proved by leading any evidence. Rather, the respondent failed to examine herself as a witness and led no evidence in support of her plea. The first appellate Court, therefore, committed a patent illegality by entering into the question of validity of the sale deed and also by commenting on the issues which were not really germane to the controversy in the absence of any specific challenge to the sale deed.

The questions of law which have been framed by the learned Counsel for the appellants are not satisfactory, but the Court is not precluded from recording its satisfaction regarding the existence of a substantial question of law and to proceed to answer the same if one arises for its consideration. Section 100(4) of the Code of Civil Procedure,1908 is explicit in its terms and the same is extracted below:

Second appeal. (1) to (3) xx xx xx xx

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) xx xx xx xx xx xx xx xx

In the opinion of this Court, the following questions of law arise for its consideration:

Whether in the absence of any pleadings laying a challenge to the sale deed, the validity of the same could be gone into by the Court or not?

Whether in the absence of the plaintiff not adducing any evidence in support of her case, the first appellate Court was right in returning a finding on the controversy or not?

For the reasons which have been recorded above, the Court is of the opinion that the aforementioned questions of law deserve to be answered in favour of the defendants-appellants as no amount of evidence could be looked into in the absence of pleadings and further that in the absence of any challenge to the sale deed, the first appellate Court was precluded from going into any material regarding the same.

The appeal is, therefore, accepted and the impugned judgment & decree passed by the first appellate Court are set aside. No orders as to costs.