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

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(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; (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 :

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(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

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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 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

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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

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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

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float the settled fundamental rules of civil procedure. Be that as it may. We will briefly set out the reasons for the aforesaid conclusions.  

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

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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

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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 :  

“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

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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

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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]

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

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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  

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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

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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

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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. 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

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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

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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

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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.  

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

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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]

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……………………………………………………………………J [Lokeshwar Singh Panta]

New Delhi;  23.9.2008

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