Lourdumary Bastian vs Shanth Kumari

Rathnakala, J.—These Regular Second Appeals are directed against concurrent findings recorded by the Civil Judge (Sr. Dn.), KGF, on his file in R.A. Nos. 23 and 24 of 2001 (Common Judgment) and in O.S. Nos. 387 and 446 of 1988 (Common Judgment) on the file of the II Additional Civil Judge (Jr.Dn.), K.G.F.

For sake of convenience the parties will be referred as per their original status before the Trial Court.

The trial Court partly decreed the suits of the plaintiffs and the appeals preferred by the common first defendant/Smt. Lourdu Mary Bastian, against the common judgment was also partly allowed with a part relief.

Plaintiffs'' case in a nutshell is:

"A private layout was formed by one Smt. Rajamani on the basis of the license issued by the revenue authorities, approval was obtained from the village panchayat. The plaintiffs in both suits namely V.S. Krishnamurthy (O.S. No. 378/1988) and Smt. M. Shantha Kumari (O.S. No. 446/1988) on the file of the II Additional Civil Judge (Jr.Dn.), KGF and also common first defendant in both the suits namely Smt. Lourdu Mary Bastian purchased three different sites from Smt. Rajamani under registered sale deeds. The plaintiffs instituted the suits seeking declaration that the first defendant has unauthorisedly put up construction in 20 feet road area shown in the rough sketch and each of the plaintiff is entitled to use said 20 feet road area which has access to the main road from their respective sites and for mandatory injunction and other reliefs."

The first defendant contested the suit on the ground that there is no such 20 feet vacant space as alleged by the plaintiffs; after obtaining license and approved plan from the third defendant/Karnataka Town and Country Planning Authority Cum KGF Development Authority, she has put up construction by investing huge amount. The second defendant/the Secretary, Dodduru Karapanahalli Mandal Panchayath in both the suits supported the case of the first defendant.

On the basis of the pleadings, the issues were framed, evidence was recorded. After hearing both parties, findings recorded to respective issues are as below:

"The following issues were framed in O.S. No. 446/1988:

Whether plaintiff proves that there is a 20 feet road to the north of the suit schedule site for the use of the plaintiff and other neighbourers?

Whether plaintiff proves that 1st defendant has illegally attempted to put up construction by encroaching the said road?

Deleted 3. Whether plaintiff is entitled for the relief of permanent injunction as prayed?

What decree of order?

Addl. Issues:-

Whether plaintiff proves that subsequent to the suit 1st defendant has unauthorizedly and illegally put up construction on the 20 feet road situate to the north of the suit sites?

Whether Plaintiff proves that himself and neighbourers are having right to use the said road for enjoyment of their property?

Whether plaintiff is entitled for the relief of declaration as prayed?

Whether plaintiff is entitled for the relief of declaration as prayed?

The following issues were framed in O.S. 387/88:

Whether the plaintiff prove that he is entitled to permanent injunction as prayed in the plaint?

Whether the plaintiff is entitled for a decree as prayed for?

To what order or decree?

Addl. Issues:-

Whether the plaintiff proves that there is 20 feets road to the south of the suit schedule site for the use of the plaintiff and other neighbourers?

Whether the plaintiff proves that the first defendant has illegally attempted to put construction by encroaching the said road?

Whether the plaintiff proves that subsequent to the suit the first defendant has unauthorisedly and illegally put up construction on the 20 feet road shown in the rough sketch in gross disobediences of the orders of statusquo passed in this case?

Whether the plaintiff proves that himself and neighbors are having right to use the said road for enjoyment of their property?

Whether the plaintiff is entitled for the relief of declaration prayed in the suit?

Whether the plaintiff is entitled for the relief of mandatory injunction prayed in the suit?

To what order or decree?

Both the parties have led their respective common evidence in O.S. 446 respect of both O.S. Nos. 446/88 and 387/88. On plaintiff side, PW1 to PW.4 are examined, on defendant side DW. 1 to DW.3 examined and marked exhibits P/1 to P.15 and D1 to D.24.

(a). Heard both the side.

My findings on the above issues are as follows:

O.S. 446/88:- Issue No. 1:- Negative.

Issue No. 2:- Negative.

Issue No. 3:- Deleted.

Addl. Issue No. 1: Affirmative

Issue No. 2: Negative.

Issue No. 3: Negative.

Issue No. 4: Negative.

O.S. No. 387/88:- Issue No. 1: Negative.

Issue No. 2: Negative.

Issue No. 3: Negative.

Addl. Issue No. 1: Negative.

Issue No. 2: Negative.

Issue No. 3: Negative.

Issue No. 4: Negative.

Issue No. 5: Negative.

Issue No. 6: Negative."

(In fact, the discussions in respect of main issue No. 2 in O.S. No. 387/1988 is ''negative'' inadvertently, it is recorded as ''affirmative'')

Relevant lines from operative portion of final order reads thus:

" ''....... that both the plaintiffs in O.S. Nos. 446/1988 and 387/1988 are entitled for 12 feet north-south vacant space which is existing on the southern portion of the defendants property for the purpose of the road to approach from the suit schedule properties in both the suits to the eastern-D.K. Halli road and the said vacant space leads to be reserved for the said purpose''.

It is further ordered that the defendant No. 1 is guilty of disobedience/breach of the court order and her undertaking referred in Ex. C2. Therefore the defendant No. 1 is liable to undergo imprisonment in the civil prison for 1 month in accordance with the due process of law and procedure."

Aggrieved first defendant carried the matter before the first Appellate Court/Civil Judge (Sr.Dn.), KGF. After giving audience to both parties, the Appellate Court confirmed the judgment of the trial Court however, set aside the order to the extent of committing her to civil prison for one month for disobedience/breach of the Court order.

When the matter came up for consideration before me, a memo dated 16.10.2014 was filed on behalf of the Smt. Shantha Kumari, the plaintiff in O.S. No. 466/1988, which reads as under:

"In the above appeal, the appellant has challenged the judgment and decree dated 24/11/2007 passed by the Civil Judge (Sr. Division) at KGF in RA No. 23/2001, confirming the judgment and decree dated 16/12/2007 passed by the II Addl. Civil Judge (Sr. Divn.) KGF in O.S. No. 446/1988.

The first respondent submits that she had filed O.S. No. 446/1988 for relief of declaration that the appellant has unauthorisedly put up construction in the 20 feet road and that the first respondent is entitled to use that 20 feet road as access to go to the main road from his site and for mandatory injunction.

The first respondent submits that she has already sold her site to one Mr. Eliyas Pasha, R/o No. 1240, Balakrishna Layout, Robertsonpet, KGF-563 122, and as such, she does not require the said 20 feet road to access to his site and hence she is not interested to defend the above appeal".

Sri Krishnamurthy, appellant in O.S. 387/19988 though opportunity was given to him neither came forward to address his arguments nor did he file his written synopsis.

Sri S.P. Shankar, Senior Advocate for Smt. Mamata Kulkarni, learned Counsel for the appellants, submits that on a perusal of the respective sale deeds of the parties, which are marked as Exs. P.2, P.7 and D.2, it is evident that their common vendor has not shown any road existing on the site purchased by the Smt. Lurdumary Bastian. In the plaintiffs schedule, the plaintiffs have mischievously shown a road running through the site of the Lurdhu Mary Bastian. But by the time suits were filed, she had already put up construction after obtaining the sanction plan from the concerned authority. But the plaintiffs had not put up any super structure in their respective sites. On the interlocutory application filed by the plaintiffs in the Court below, it was ordered that she should not put up compound on the southern side subject to the result of the suit. She challenged the said order in Cr.P. No. 7109/1989 and same came to be disposed of by recording her submission that, in the event of success of the plaintiffs in both suits, she would remove or demolish the compound wall at her costs. He further submits that both the Courts below have recorded finding that the plaintiffs have not established that the road exists in the defendants property for the use of the plaintiffs. This finding is not challenged by either of the plaintiffs. Subsequently, Smt. Shantha Kumari/plaintiff in O.S. No. 446/1988 disposed of the property in favour of a third party who is not interested to prosecute her case. The plaintiff of O.S. No. 387/1988/V.S. Krishnamurthy has not contested this second appeal. In the backdrop of the above, it is incumbent that the judgment and decree of the trial Court which is confirmed by the first Appellate Court in directing the first defendant to reserve 12 feet vacant space on her property is liable to be set aside and their suits have to fail.

These appeals were admitted on 24.01.2011, to adjudicate the following questions of law:

"1. Whether the Courts below are justified in granting unsought for ancillary relief of declaration reserving 12 feet wide passage on the property of the southern side of the property of the appellant, by misreading and misinterpreting Ex. C1 ?

Whether the Courts below are justified in creating a public passage or a thoroughfare over a private property, without such relief being founded on Section 92 of CPC?"

On a perusal of plaints in both suits, the prayer sought in both the cases are identical and they read as follows:-

"a) For declaration that the 1st defendant has unathorizedly put up construction in the 20 feet road area shown in the rough sketch and that the plaintiff is entitled to use this 20 feet road as access to go to the main road from his site.

b) For Mandatory injunction directing the 1st defendant to demolish the structure put up by her unauthorizedly in this 20 feet road area and if she fails to demolish the construction, this Hon''ble court may be pleased to get the same removed through a Commissioner appointed by this Hon''ble Court so as to leave 20 feet road sketch annexed to the plaint."

Despite recording negative findings on the vital issues, the Courts below were prompted to decree the suit by declaring the rights of the plaintiffs over 12 feet space lying to the south of defendants property. On the basis of the admissions that emerge in the cross-examination of first defendant/DW. 1, for the facility of reference, the said lines are re-produced below.

"xxxxxxxxxx As per plan, I have not made construction in respect of residential portion. The vacant space situate towards southern side of my property mg., 12 ft N-S as stated by me in my examination in chief is still available. I have no objections if the plaintiffs are using the said vacant space on the south of my building in my property to approach eastern side road from their respective sites.

There is a vacant space towards southern side of my building in between the building and the compound which mgs., N-S: 8ft and E-W : 15 ft, There after there is a projection of building on the southern side and on account of which the distance between building and compound wall is reduced into 6 ft., and thereafter towards south there is a vacant space is available on the southern side of my building I am ready to leave as a road to approach the main road to the plaintiff, maximum to the extent of 12ft."

The Courts below have proceeded on the above version of DW. 1 without noticing that during the further course of cross-examination, there was a suggestion disputing very existence of 12 feet open space to the south of DW. 1 property. However, further suggestion that only 3 feet open space is available in compound towards southern side, after the projection was denied. It appears, the Courts below in their zeal to mould proper relief by invoking equity jurisdiction have granted relief in respect of the property which was not the subject matter of the suit and in respect of which no relief was sought. The Apex Court emphasizing on the proper pleading, issues and the evidence, in the case of Kalyan Singh Chouhan v. C.P. Joshi disposed of on 24.01.2011, at para Nos. 19 to 27, has held as follows:

"19. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is settled legal proposition that "as a rule relief not founded on the pleadings should not be granted." Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ. (Vide Sri Mahant Govind Rao v. Sita Ram Kesho, Trojan & Co. v. Nagappa Chettiar, Raruha Singh v. Achal Singh, Om Prakash Gupta v. Ranbir B. Goyal, Ishwar Dutt v. Collector (L.A.) and State of Maharashtra v. Hindustan Construction Co. Ltd.)

This Court in Ram Sarup Gupta v. Bishun Narain Inter College held as under:(SCC pp. 562-63, para 6)

"6......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 such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question."

This Court in Bachhaj Nahar v. Nilima Mandal, held as under:(SCC pp. 496 & 500, paras 12-13 & 23)

"12. 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....

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........ 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.

The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc."

In J.K. Iron & Steel Co. Ltd. v. Mazdoor Union, this Court observed:(AIR p.235, para 24)

"24.....It is not open to the tribunals to fly off at a tangent and, disregarding the pleadings, to reach any conclusions that they think are just and proper."

Order 14 Rule 1 CPC reads:

"1. Framing of issues.- (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other."

Therefore, it is neither desirable nor required for the court to frame an issue not arising on the pleadings. The Court should not decide a suit on a matter/point on which no issue has been framed. (Vide Bommadevara Venkata Narasimha Naidu v. Bommadevara Bhashyakarlu Naidu, Sita Ram v. Radha Bai, Gappulal v. Thakurji Shriji Shriji Dwarkadheeshji and Biswanath Agarwalla v. Sabitri Bera.)

The object of framing issues is to ascertain/shorten the area of dispute and pinpoint the points required to be determined by the court. The issues are framed so that no party at the trial is taken by surprise. It is the issues fixed and not the pleadings that guide the parties in the matter of adducing evidence. [Vide Sayad Muhammad. v. Fatteh Muhammad)

In Kashi Nath v. Jaganath, this Court held that where the evidence is not in line with the pleadings and is at variance with it, the said evidence cannot be looked into or relied upon. While deciding the said case, this Court placed a very heavy reliance on the judgment of the Privy Council in Siddik Mohd. Shah v. Saran..

There may be an exceptional case wherein the parties proceed to trial fully knowing the rival case and lead all the evidence not only in support of their contentions but in refutation thereof by the other side. In such an eventuality, absence of an issue would not be fatal and it would not be permissible for a party to submit that there has been a mistrial and the proceedings stood vitiated. (Vide-Nagubai Ammal v. B. Shama Rao, Nedunuri Kameswaramma v. Sampati Subba Rao, Kunju Kesavan v. MM. Philip, Kali Prasad Agarwalla v. Bharat Coking Coal Ltd., Sayeda Akhtar v. Abdul Ahad; and Bhuwan Singh v. Oriental Insurance Co. Ltd.)".

The relief sought by the plaintiffs for 20 feet width of space over defendants property is virtually claiming easementary right over her property. But absolutely, there was no pleading either for claiming right of access by way of prescription or as of necessity. There is some feeble attempt by the plaintiffs to project the cause of action as if not only for themselves but on behalf of their neighbouring owners, the right of way over 20 feet vacant site is required. If that is so, the cause of action partakes the character of public nuisance falling within the purview of Section 91 of C.P.C., which requires atleast two persons to join together to file such a suit. But that is not the case here, both the plaintiffs have filed the suits in their individual capacity and agitating for their individual rights. Relief is granted in respect of 12 feet space to the south of the defendants property even without ascertaining whether or not such a vacant space exists. The plaintiffs having suffered the negative findings to contentions and issues by the Courts below, they have not challenged those findings. They have accepted the finding that there is no 20 feet road to the south of first defendant''s property. That apart, the original owner who is said to have assured the plaintiffs about the existence of a road over the defendant''s site to reach the main road, is not arrayed as a party, nor examined as a witness. The sale deeds of the plaintiffs is silent about such right of way. In the given circumstances, the trial Court having found that there was no cause of action to file the suits, ought to have dismissed the suits without venturing to grant relief which was never sought for. Hence, judgments of both Courts below in decreeing the suits of plaintiffs is illegal and cannot be sustained.

Accordingly, appeals are allowed. The judgments of the Courts below in declaring ''the plaintiffs in O.S. No. 446/1988 and O.S. No. 387/1988 are entitled for 12 feet north-south vacant space which is existing on the southern portion of the defendants property for the purpose of the road to approach from the suit schedule properties in both the suits to the eastern side of D.K. Halli road and the said vacant space needs to be reserved for the said purpose'' is set aside. The suits O.S. No. 446/1988 and O.S. No. 387/1988 on the file of the II Additional Civil Judge (Jr.Dn.), K.G.F., are dismissed. Parties to bear their own costs.