Party may plead differently. A case put forth in the plaint by the plaintiff may be recast. However, for that necessary averments by way of amendment is the legally permissible course. In other words, there has to be foundation in the pleadings of whatever case the plaintiff or any party want to put forth. The plaintiff in the present case could have sought amendment in the plaint and could have prayed for incorporation of the averments in substitution of the original case. Whether such amendment putting up totally different case was permissible or not is a different aspect, but in any case, without seeking amendment or without there being foundation in the pleading, different kind of evidence could not have been led and relied upon. In Trojan and Co. (supra), the Apex Court observed that the settled proposition is that decision of a case cannot be based on the grounds outside the pleadings of the parties and it is the case pleaded that has to be found. It was observed that without the amendment of the plaint, the Court was not entitled to grant relief. It, therefore, logically follows that if the plaintiff wanted to put up an alternative case and lead evidence on different line than what was originally pleaded in the plaint, he ought to have amended his pleadings.
The submission of learned Advocate for the respondent that the technicality in pleadings should not be permitted to override was a correct submission in abstract. However, what emerged in the present case was not an aspect of technical flaw in the pleading. Nor it was a case of minor variation in the evidence adduced with the case pleaded, as already noted. The material plea on which the entire case in the plaint was based stood in contradiction with the evidence sought to be led on the aspect of time of death of the father. The two aspects were not reconcilable. In a partition suit they had a material effect on the determination of rights of the parties. It was, therefore, a matter of substance of a case where pleading was found to be one and the evidence on that aspect was sought to be led opposite to what was pleaded.
Gujarat High Court
Rana Bharatsinh jasubha vs Heirs Of Valand Laljibhi ... on 9 January, 2014
CORAM: MR.JUSTICE N.V.ANJARIA
Citation;AIR 2014(NOC)509 GUJ
The present Second Appeal is directed against judgment and decree dated 04th January, 1991 passed by Assistant Judge, Surendranagar in two Regular Civil Appeal Nos.43 of 1985 and 44 of 1985. Regular Civil Appeal No.43 of 1985 was an Appeal preferred by the original plaintiff-Valand Lalji Arjan, whereas Regular Civil Appeal No.44 of 1985 was by Rana-Bharatsinh Jasubha, who is appellant herein and who was original defendant No.10. Learned Assistant Judge allowed Regular Civil Appeal No.43 of 1985 and dismissed Regular Civil Appeal No.44 of 1985. It was declared that the plaintiff and defendant Nos.1, 2, and 4 to 8 are entitled to one-eight share each in the suit properties.
1.1 The aforesaid two Regular Civil Appeals culminating into the impugned judgment and decree arose from judgment and decree passed in Regular Civil Suit No.08 of 1977 decided on 31st December, 1984 by learned Civil Judge (J.D.), Limbdi. It was a suit wherein plaintiff claimed relief of partition and declaration of one-fourth share in the suit properties with other incidental prayers. The Trial Court dismissed the suit of the plaintiff, directed that defendant Nos.4 to 8 were entitled to their share individually being Rs.937.50 paisa from defendant No.10-appellant herein. The appellant herein-defendant No.10 was the subsequent purchaser of the suit properties, claiming that he was a bonafide purchaser for value.
2. At the time of admission of present Second C/SA/167/1992 CAV JUDGEMNT Appeal, substantial questions of law framed by the Court are as under:
"(i) What would be the effect of Hindu Succession Act, 1956 when succession opens after coming into operation Succession Act and one of the sharers happened to be a widow?
(ii) Whether Exhibit 104, 105 and 107 would amount to relinquishment? If so, what is their effect?
(iii) Could a widow be a Manager of Hindu Undivided Family under Hindu Law?"
2.1 In course of the consideration of the matter, upon going through the pleadings and submissions made by learned advocates for the parties, a substantial question of law was found to be arising. It was framed as under:
"Having regard to the specific pleading of the plaintiff in the plaint that father Arjan Ghela died prior to coming into force Hindu Succession Act, 1956 coupled with the fact that defendant Nos.1 and 2 admitted in the written statement the said position pleaded, whether it was permissible in law to allow and adduce evidence against and divergent to the said pleadings?"
3. Plaintiff and defendant Nos.1 and 2 are the brothers whereas defendant Nos.4 to 8 are sisters, they being they sons of deceased-Arjan Ghela. Defendant No.3-Ramaben happened to be the mother of the parties and wife of said Arjan Ghela. The case pleaded by the plaintiff in his plaint may be noted with relevance. It was the case of the plaintiff- Valand Lalji Arjan that his father-Valand Arjan Ghela C/SA/167/1992 CAV JUDGEMNT died several years back at Village Borna. It was stated in the first paragraph of the plaint further that father-Arjan Ghela had expired prior to coming into force of Hindu Succession Act, 1956. A family pedigree was produced. It was the further case of the plaintiff that deceased father, plaintiff and defendant Nos.1 and 2-the brothers of the plaintiff- were all staying together at Village Borna, and had in their names the land and residential houses, descriptions of which were given in paragraph 2 of the plaint. They were the suit properties comprising of Wadi survey No.4, agricultural field Survey No.552, two residential houses and a house and other two houses as described. It was the case that plaintiff, his father and said brothers were in joint possession of the suit properties. The plaintiff further stated that the suit land was cultivated by him personally and produce earned therefrom was being enjoyed in common.
3.1 It was further the case of the plaintiff and defendant Nos.1 and 2 that since they were unable to maintain their families out of the income of the suit land, they travelled to village Borna and Limbdi respectively to do business and to earn. It was stated that character of the properties was maintained as joint family properties though all of them had their separate kitchen. It was also stated that that since brothers were staying at different places, defendant No.3-mother used to administer the properties and was getting produce from those properties. It was the case that because of the fact that properties were with C/SA/167/1992 CAV JUDGEMNT defendant No.3-mother who was administering the same, her name came to be entered into the revenue record. It was claimed that all the brothers had equal share and defendant No.3 being the widowed mother had no share. In the background of the above pleadings, plaintiff claimed that he was entitled to one-fourth share. In the suit he, therefore, sought relief of partitioning the properties by metes and bounds and prayed for incidental relief of possession and mesne profit. The suit came to be instituted on 12th January, 1977.
3.2 It was further stated that defendant Nos.1 and 2 had without informing and without taking permission of the plaintiff sold away one of the house No.3 to defendant No.9 and received consideration secretly. Asserting his joint ownership, plaintiff further pleaded that defendant Nos.1 and 2 had no right to sell or transfer the suit property. It was stated that plaintiff was entitled to remain in possession of the said property.
3.3 Defendant No.1 filed his written statement at Exhibit 26. He adopted written statement of defendant No.3 (Exh.25). Defendant No.2, another brother, filed his written statement at Exhibit 28. Defendant No.2 in his written statement accepted the case of the plaintiff. In other words, he accepted that father Arjan Ghela had died prior to coming into force of the Hindu Succession Act. He stated that he had no objection of the suit prayers were granted. Defendant Nos.4 to 8 in their written statement at C/SA/167/1992 CAV JUDGEMNT Exhibit 27 took the same stand and adopted written statement of defendant No.3.
3.4 Defence taken by defendant No.3-mother in her written statement at Exhibit 25 may now be noted. She denied the suit averments that the property was joint family property or that plaintiff and defendant Nos.1 and 2 were sharers therein. It was contended that property was exclusive ownership of her husband- Arjan Ghela. It was contended that plaintiff had not taken care or maintained her for all 25 years and was staying at Limbdi. She pleaded that she was holding and occupying the properties in capacity of owner thereof. It was contended that when Hindu Succession Act came into force, properties were in her possession, therefore she became legal owner thereof under the provisions of the said Act. It was next contended that defendant Nos.1 and 2 had consented on 17th April, 1970 for mutation of her name in the revenue record in respect of the suit properties; similarly plaintiff had also admitted that she was the owner and he had no right or interest in the property and had relinquished any such right in her favour.
3.5 Defendant No.3 pleaded that sale of the house effected in favour of defendant No.9 was out of legal necessity in as much as she was required to shoulder of maintaining family including three daughters. She contended further that she was not knowing about institution of suit on 12th January, 1977 and before summons of the suit was served to her, defendant Nos.3 and 4 had sold the suit land to one C/SA/167/1992 CAV JUDGEMNT Rana Bhgawatsinh Jashubha for Rs.7,500/-. It was stated that the said land was required to be sold because she was indebted for the expenditure of Rs.1,500/- incurred in connection with marriage of her niece-Saraswati and money was required for household expenses also. In other words, it was pleaded that the suit land was required to be sold out of necessity. The said Rana Bhagwatsinh to whom the suit land was sold, was arraigned as defendant No.9 in the suit subsequently. Defendant No.3 in her written statement also raised a contention on the ground of waiver and estopple, as well asserted ownership on the ground of adverse possession.
3.6 It appears that in course of the suit, plaintiff and defendant Nos.1 and 2 as well as defendant Nos.4 to 8 being brothers and sisters entered into a settlement amongst themselves. It was agreed that agricultural field bearing Survey No.552 admeasuring 2 Acre 35 Gunthas described in paragraph 2(B) of the plaint would go to plaintiff-Valand Lalji Arjan and defendant No.2-Valand Chiman equally and they would be the joint owners. It was further agreed that property being House on the east and adjoining Osri with courtyard being the property described in paragraph 2(C) of the plaint would go to defendant No.1-Valand Shivlal Arjan and he would be the owner. Similarly, it was further agreed that house on the western side with its Osri and courtyard described in paragraph 2(C) of the plaint would go to Rameshbhai Bhagwanbhai, son of uncle Valand Bhagwan Ghela. The plaintiff and defendants relinquished their share in C/SA/167/1992 CAV JUDGEMNT the said property to give it to Rameshbhai. Defendant Nos.4 to 8 who were married sisters, also agreed to forgo their share in the suit property in favour of plaintiff and defendant Nos.1 and 2 and accepted settlement dividing the properties. A Purshish dated 17th January, 1980 came to be jointly filed by the parties before the Court reflecting the above settlement. It may also be noted at this stage that defendant No.3-mother died on 22nd February, 1979 during the pendency of the suit. It further appears that during pendency of the suit, plaintiff and the defendants settled with defendant No.9, to whom one of the properties was sold out. Defendant No.3 died on 15th September, 1979 during the pendency of the suit proceeding. Her name as defendant came to be deleted at Exhibit 40. The appellant-defendant No.10 was the party whose interest subsisted.
3.7 He filed his written statement at Exhibit 58 contending that he was a bonafide purchaser for value of the property. He further contended that defendant Nos.1 to 9 colluded against his interest. He denied the suit averments and claim of the plaintiff. He contended that as per the averments of plaintiff himself since father-Arjan Ghela had died before coming into force of Hindu Succession Act, defendant No.3-widow and mother of the plaintiff became absolute owner of the suit properties by virtue of Section 14 of the Act and in that view, plaintiff of defendant Nos.1 and 2 had no right in the properties. He contended that entry was mutated in the name of defendant No.3-Rambhaben, for which plaintiff and C/SA/167/1992 CAV JUDGEMNT defendant Nos.1 and 2 had consented, but the plaintiff withheld the said fact in his suit deliberately. He contended that defendant No.3-Rambhaben had lawfully sold the property and he was a bonafide purchaser for value without notice.
3.8 It appears that the Trial Court delivered its judgment on 19th January, 1980. Thereafter defendant No.10 preferred appeal against judgment and decree of the Trial Court, being Regular Civil Appeal No.09 of 1980 before the District Court. The District Court, Surendranagar remanded the matter by its judgment and order dated 28th February, 1984 so as to give opportunity to defendant No.10 to file his written statement and to permit the parties to adduce their evidence. It was thereafter that defendant No.10 filed his written statement at Exhibit 58 as noted above. The parties led evidence.
3.9 The Trial Court framed the following issues at Exhibit 33- (1) Does the plaintiff prove that his father died before Hindu Succession Act came in to force as alleged in the plaint para-1?; (2) Does the plaintiff prove that he alongwith defendants No.1, 2 and 3 are tenants-in-common of the suit properties and he has 1/4 th share in it as alleged in plaint para-6? (3) Does the plaintiff proves that defendant No.3 was managing the suit properties and taking produce on behalf of joint family as alleged in the plaint para- 6? (4) Does defendant No.3 proves that, the suit properties not joint but of the exclusive ownership of her deceased husband Arjan Ghela as contended in para-
C/SA/167/1992 CAV JUDGEMNT 5 of written statement Ex-25? (5) Does the defendant No.3 proves that she has become the exclusive owner of the suit properties and the plaintiff and defendant No.1 and 2 have no right or interest in it as contended in para-13 of written statement Ex.25? (6) Does the defendant No.3 proves that, she has become the owner of the suit properties by adverse possession? (7) What relief, if any is the plaintiff entitled? (8) Whether suit is tenable? (9) Whether defendant No.10 proves that parties have filed suit under collusion? (10) whether suit is barred of estopple, waiver, latches, delay and acquitences? (11) whether defendant No.10 proves that they have bonafide purchase value without notice? (12) Whether plaintiff proves that, he has paid proper Court Fees? (13) Whether it is proved that the plaintiff and other defendant No.1 and 2 have released their right tile and interest in favour of deceased defendant No.3 as alleged in para-No.16 of written statement? (14) Whether plaintiff proves that the deceased defendant No.3 has sold the suit land without any right title and interest as alleged in the plaint? (15) Whether deceased defendant No.3 has sold the suit land for legal necessity as alleged in para-20 and 21 of written statement? (16) Whether Narshi Ramdsnh is necessary party in the suit as alleged in para-23 of the written statement? (17) What is the effect of compromise between the parties after the demise of defendant No.3? (18) Whether the suit is barred by period of limitation? (19) What order and decree?
3.10 Issue Nos.1, 4, 5 and 9 to 13 were answeredC/SA/167/1992 CAV JUDGEMNT
in affirmative. In respect of issue No.17 which was in relation to compromise entered into it was held that compromise was binding to the parties who had signed the same. It held that the plaintiff proved that his father died before coming into force the Hindu Succession Act. It also held that defendant No.3 had proved that she had became exclusive owner of the suit property and the plaintiff and defendant Nos.1 and 2 had no right or interest. The contention of the appellant-defendnat No.10 that parties had filed the suit under collusion was upheld. It was further held by the Trial Court that defendant No.10 was a bonafide purchaser for value without notice. It concluded also that selling of the suit land by defendant No.3 in favour of defendant No.10 was out of legal necessity.
3.11 Against the aforesaid judgment and decree in the suit, as aforesaid, two Regular Civil Appeals came to be filed. The original plaintiff filed Regular Civil Appeal No.43 of 1985 whereas the appellant herein-original defendant No.10 preferred Regular Civil Appeal No.44 of 1985. In the common judgment dealing with both the appeals, the first appellate court concluded to the contrary. It recorded that main contention and pleading of the plaintiff and defendants that father-Arjan Ghela died before 1956, that is coming into force of Hindu Succession Act, was not correct. The first appellate court took a view that evidence on record showed that father-Arjan Ghela had died subsequent to coming into force the Act. Having reversed the view of the Trial Court on this material aspect of the case, the first appellate court C/SA/167/1992 CAV JUDGEMNT recorded findings against the appellant. Ultimately, it allowed the appeal of the original plaintiff, dismissed Regular Civil Appeal No.44 of 1985 of the appellant herein. The first appellate court went on to declare that plaintiff and defendant Nos.1, 2 and 4 to 8 each were entitled to one-eighth share in the suit properties.
4. Heard learned advocate Mr.Dhirendra Mehta for the appellant and learned advocate Mr.P.J. Yagnik, who appears for all the respondents herein-being original plaintiff and original defendant Nos.1, 2 and 4 to 8.
4.1 Learned advocate for the appellant submitted that appellant was a bonafide purchaser. He purchased the property on the basis of the revenue record which showed the name of defendant No.3 as the owner. He submitted that the defendants had given up their right in the property in any case. It was submitted that the entire suit was collusive and the plaintiff and the defendants Nos.1 and 2 settled dividing the property amongst themselves during the pencency of the suit as was evident from the compromise Purshis at Exhibit 43. He submitted that prior to institution of the suit, the one of the properies which was subject matter of suit was sold to defendant No.9, however at a subsequent stage, the matter was settled with defendant No.9 and defendant No.9 came to be deleted from the array of respondent. It was thereby emphasized that the entire conduct was collusive. He submitted that Exhibit 104, 105 and 106 were proved.
C/SA/167/1992 CAV JUDGEMNT4.2 Learned advocate for the appellant furthersubmitted that the plaintiff was approbating and
reprobating on his case in asmuch as he pleaded his case in one way, but in evidence proceeded to show otherwise. It was submitted that the evidence did not match the pleadings, therefore, the first appellate court could not have relied on such evidence. He submitted that a party could not be permitted to lead evidence against what is pleaded. He relied on the decision of the Apex Court in case of Trojan and Co., Messers. Vs RM. N.N. Hagappa Chettiar [AIR 1953 SC 235] in support of his contention. He relied on another decision in case of Mrs.Om Prabha Jain Vs Abnash Chand [AIR 1968 SC 1083] to highlight the proposition that ordinary rule of law is that the evidence is to be given only on a plea properly raised and not in contradiction of the plea.
4.3 On the other hand, learned advocate for the respondents-original plaintiff as well as original defendants in the suit, submitted that it was the case of the plaintiff that Arjan Ghela died before coming into force of Hindu Succession Act. He submitted that the Trial Court erred in recording findings. He highlighted the evidence being the application given by defendant No.2 to Mamlatdar (Exh.115), reply of the Panchayat dated 15th December, 1984 (Exh.116), voucher of unpaid salary to Arjan Ghela (Exh.118), extract of Rojmel dated 03rd April, 1959 (Exh.119) and the Resolution of the Panchayat dated 01st May, 1959 (Exh.120), to submit on the basis of the said evidence that the death of father Arjan Ghela was shown to be C/SA/167/1992 CAV JUDGEMNT after 1955 and not before. Learned advocate for the respondents submitted that what was deducible from the evidence was required to be taken into account. He submitted that substance of the case and not the form of pleadings was important. He further submitted that it may be that, the pleading and the case of the plaintiff was different which was that Arjan Ghela had died prior to coming into force of the Hindu Succession Act, but the technicality of pleading may not be allowed to overreach the substantial justice.
4.4 Learned advocate for the respondent in support of his submission relied on the following decisions: (i) Kedar Lal Seal Vs Hari Lal Seal [AIR 1952 SC 47]; (ii) AIR 1960 SC 200; (iii) Shri Subramania Vs State of Madras [AIR 1965 SC 1578];
(iv) Ramswarup Gupta (Dead) Vs Bishnunarayan Inter College [AIR 1957 SC 1242]; (v) Kali Prasad Agrawal (Dead) by LRS Vs Bharat Coking Coal Limited [AIR 1989 SC 1530] and (vi) Vaidnaith Sahay Vs Rambadan Singh [AIR 1966 Patna 383]. Learned advocate relied on decisions also with regard to the scope of interference by the High Court in the second appellate jurisdiction and also with regard to what constitutes perversity in finding, one of which are not mentioned here so as not to burden the judgment, however the principles canvased on the basis of the said judgments were took into account.
4.5 From the decision of the Apex Court in case of Laxmiben Vs Bhagbant Buna [(2013)4 SCC 97], following observations were relied on by the learned C/SA/167/1992 CAV JUDGEMNT advocate for the respondent on the aspect of pleadings:
"When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred and the Court may in the larger interests of administration of justice may excuse or overlook a mere irregularity or a trivial breach of law for doing real and substantial justice to the parties and pass orders which will serve the interest of justice best."
4.6 He next contended that prior partition was not challenged. He submitted that the Trial Court erred in relying on Exhibit 104, 105 and 107. He submitted that defendant No.3 was only an administrator of the properties which were joint family properties. In order to support his plea that properties were joint Hindu properties, learned advocate relied on oral evidence of the plaintiff and defendant No.2 (Exh.44 and 122 respectively) and sale deed as well as certificate of Mamlatdar. Learned advocate also referred to the book on Hindu Law by Mulla, 21st Edition to highlight the definition of joint Hindu family and the related concepts under the Hindu Law.
4.7 It was further submitted by learned advocate for the respondents that the appellant was not a bonafide purchaser. He submitted that doctrine of lis pendence would apply and the sale in his favour could not create any right for the appellant. Learned advocate placed reliance on the decision in R.K. Mohammed Ubaidullah Vs Hajee C. Abdul Wahab (D) by C/SA/167/1992 CAV JUDGEMNT LRS [(2000) 6 SCC 402] to highlight who could be siad to be bonafidr purchaser. It was submitted that the appellant did not make proper inquiry and could not establishes his bonafides as a bonafide purchaser. He submitted on the basis of the said judgment that it was the burden of appellant to establish that he was an innocent purchaser. On the same line, learned advocate relied on another decision in [2011(1) GLR 601 (SC)].
5. Posing at this stage, the judgment of the Trial Court and that of the first appellate court may be visited with and the findings recorded may be looked into. The Trial Court, proceeding on the basis of the plea of the plaintiff in the plaint that father Arjan Ghela had died prior to 1956 before coming into force the Hindu Succession Act, considered the evidence and recorded its findings. Now going through the judgment of the Trial Court, it considered extensively the evidence on record, noted that the plaintiff in his evidence (Exh.44) reiterated his case in the plaint. He stated that his father Arjan Ghela died before 25 years and that he did not remember the exact date. In his cross-examination, he admitted that his father died prior to 1956.
5.1 It was recorded further by the Trial Court about plaintiff having admitted that he was staying at Limbdi since last 10 years and also about the compromise entered into after death of defendant No.3- mother. The Trial Court considered the evidence of plaintiff's witness one Hemantsang Ghanchu, and other C/SA/167/1992 CAV JUDGEMNT oral evidence. The Trial Court examined the evidentiary value of Exhibit 99 to 107 having regard to the case of the plaintiff that his father Arjan Ghela died before Hindu Succession Act came into operation. The Trial Court reached finding after comparison of signatures that the application made to the revenue authorities for entering name of mother Rambhaben Arjanbhai had the signatures of applicant- brothers, and further held that the same was given out of free consent.
5.2 It further recorded that one Gordhanbhai Govindbhai who identified thumb marks and signatures was not examined by the plaintiff and adverse inference was drawn. The Trial Court recorded further finding after appreciating the evidence that on 17th April, 1970, brothers had given declaration to relinquish their rights in the property, that necessary entry was made in the revenue record which came to be certified on 06th June, 1970. Suit for partition came to be instituted after seven years on 12th January, 1977. In other words, the Trial Court found on evidence that Exhibit 104, 105 and 107 were the documents by virtue of which rights in the property came to be relinquished in favour of defendant No.3-mother. The Trial Court also recorded finding that the sale in favour of defendant No.10 was effected out of legal necessity as financial circumstances required selling of the property by mother. It was further held that defendant No.10 was a bonafide purchaser.
C/SA/167/1992 CAV JUDGEMNT5.3 The first appellate court framed points of
determination and reversed the findings of the Trial Court on all material aspects. In so doing, the first appellate court proceeded on the footing that father Arjan Ghela had died after 1956. In paragraph 16 of the judgment it was recorded that though it was the case and the pleading of the plaintiff and defendant No.2 that father-Arjan Ghela died before 1956 and before coming into force the Hindu Succession Act, the same was not correct in view of evidence at Exhibit 116, 117, 118 and 120. The first appellate court thus disregarded pleading and the case of the plaintiff by relying upon evidence sought to be adduced to conclude that father-Arjan Ghela had died somewhere in 1959. The first appellate court accordingly proceeded to consider the contention and case of the parties and finally in the ultimate order it was accordingly declared that defendant Nos.1, 2 and 4 to 8 each had share out of the suit properties and directed drawing of preliminary decree accordingly.
6. Having noted above the case and the contentions canvassed, the controversy involved may be considered in the context of substantial questions of law formulated.
6.1 What was conspicuous was that the case of the plaintiff in the plaint contained plea about his father having died before Hindu Succession Act coming into force and this was the main premise pleaded was reiterated by him in his evidence at Exhibit 44, however in course of the trial, evidence on the issue C/SA/167/1992 CAV JUDGEMNT was led in a different way. It was tried to be established and proved that plaintiff's father Arjan Ghela had died after 1956 and subsequent to coming into force the Hindu Succession Act. The first appellate court relied on and took into account such evidence. Significant in its legal effect, when the evidence led contradicted the very plea that father Arjan Ghela had died prior to coming into force the Hindu Succession Act, such evidence could not have been relied on by the first appellate court.
6.2 Leading evidence contrary to case pleaded was clearly not permissible in law. Pleadings are the foundation. A case in the suit is always founded in the pleadings. The pleadings provide the necessary framework within which the party would lead evidence in support. The pleadings and the evidence led in consonance with the pleadings converged to make a good decision. In the adjudicatory process of the trial of the suit and in its culmination into a decree or order or decision, the pleadings and evidence have to go together the evidence running discordant with and divergent to the pleadings is a concept unknown and is against the well settled principles on the law of pleadings. The plaintiff concept permitted to plead in one way and seek to prove the different.
6.3 In National Textile Corporation Limited Vs Narkeshkumar Jagad [AIR 2012 Supreme Court 264], the Supreme Court observed, "Pleadings and particulars are necessary to enable the court to decide the rights of the C/SA/167/1992 CAV JUDGEMNT parties in the trial. Therefore, the pleadings are more of help to 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 a settled legal proposition that "as a rule relief not founded on the pleadings should not be granted". A decision of a case cannot be based on grounds outside the pleadings of the parties."
(para 7) 6.4 It is trite principle that no amount of evidence contrary to the pleadings can be accepted. The object and the purpose of pleadings was explained by the Apex Court in Bachhaj Nahar Vs Nilima Mandal [AIR 2010 Supreme Court 1103] in the following words may be usefully noted, "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 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 would not be granted."
(Para 10) 6.5 It is well settled that evidence contrary to the pleading cannot be relied on. In Ramesh Kumar Vs C/SA/167/1992 CAV JUDGEMNT Furu Ram [(2011) 8 SCC 613], it was observed thus:
"We find three different versions from the pleadings and evidence led by the respondents.
The case set forth in their written statements was completely different from the case made out in the evidence of their witnesses DW 1, DW 2, DW 3 and DW 4. More interestingly, the case set forth in the written statements and the case made out in the oral evidence were completely different from what is stated in the documentary evidence." (para 32) 6.5.1 It was further stated, "It is well settled that no amount of evidence contrary to the pleading can be relied on or accepted. In this case, there is variance and divergence between the pleading and documentary evidence, pleading and oral evidence and between the oral and documentary evidence. It is thus clear that the entire case of the respondents is liable to be rejected. The different versions clearly demonstrate fraud and misrepresentation on the part of the respondents." (par 33) 6.6 In M. Chinnasamy Vs K.C. Palanisamy [(2004) 6 SCC 341], which was a case under the election law, the Supreme Court highlighted that in all circumstances, evidence led has to conform the pleadings. The Apex Court referred to its own decision in T.A. Ahammed Kabeer Vs A.A. Azeez [(2003) 5 SCC 650], in which it was inter alia observed that once Court had permitted recount within the well settled parameters by exercising jurisdiction in this regard, it is the result of recount which has to be given effect to. The Apex Court disproved flat preposition and emphasise that variation of evidence with the C/SA/167/1992 CAV JUDGEMNT pleading has to be taken into consideration even in such cases. The Apex Court observed, "With respect, we are not in a position to endorse the views taken therein in their entirety. Unfortunately, the decision of a larger Bench of this Court in Jagjit Singh [AIR 1966 SC 773] had not been noticed therein. Apart from the clear legal position as laid down in several decisions, as noticed hereinbefore, there cannot be any doubt or dispute that only because a re-counting has been directed, it would not be held to be sacrosanct to the effect that although in a given case the court may find such evidence to be at variance with the pleadings, the same must be taken into consideration. It is now well-settled principle of law that evidence adduced beyond the pleadings would not be admissible nor can any evidence be permitted to be adduced which is at variance with the pleadings. The court at a later stage of the trial as also the appellate court having regard to the rule of pleadings would be entitled to reject the evidence wherefor there does not exist any pleading." (para 42) 6.7 Had it been the case of little variation in evidence adduced with pleadings, it could have been reconciled. Following observations of the Apex Court in Gian Chand and Bros. Vs Rattan Lal [(2013) 2 SCC 606], may be pertinently noticed:
"Another aspect which impressed the High Court was the variance in the pleadings in the plaint and the evidence adduced by the plaintiffs. To appreciate the said conclusion, we have keenly perused Paras 6 and 7 of the plaint and the evidence brought on record. It is noticeable that there is some variance but, as we perceive, we find that the variance is absolutely very little. In fact, there is one variation i.e. at one time, it is mentioned as C/SA/167/1992 CAV JUDGEMNT Rs 6,64,670 whereas in the pleading, it has been stated as Rs 6,24,670 and there is some difference with regard to the date. In our considered view, such a variance does not remotely cause prejudice to the defendant. That apart, it does not take him by any kind of surprise. In Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar [2010 (1) SCC 217] the High Court had non-suited the landlord on the ground that he had not pleaded that the business of the firm was conducted by its partners, but by two other persons and that the tenant had parted with the premises by sub- letting them to the said two persons under the garb of deed of partnership by constituting a bogus firm. This Court observed that there is substantial pleading to that effect. The true test, the two-Judge Bench observed, was whether the other side has been taken by surprise or prejudice has been caused to him.
In all circumstances, it cannot be said that because of variance between pleading and proof, the rule of secundum allegata et probata would be strictly applicable. In the present case, we are inclined to hold that it cannot be said that the evidence is not in line with the pleading and in total variance with it or there is virtual contradiction. Thus, the finding returned by the High Court on this score is unacceptable." (para 27) (emphasis supplied)
7. The case is not one of a mere variance in the pleading and evidence. If there was some amount of variance in the evidence vis-a-vis the case pleaded, it could have been reconciled. By process of judicial reasoning, variation could have been ironed out. That is not the case. There is virtual contradiction in the case pleaded in the plaint; namely that father Arjan Ghela died piror to 1956, and subsequently it was attempted to show that he died after 1959.
C/SA/167/1992 CAV JUDGEMNT7.1 As already noted, in paragraph 2 of the
plaint, a specific case was pleaded by the plaintiff that his father died before coming into force the Hindu Succession Act. The entire premise of the case of the plaintiff rested on the said proposition and the pleading. Then, the evidence ought have been led in consonance and conformity. Divergence in both would necessarily work to the perils of the case of the plaintiff.
7.2 More importantly, the pleading that Arjan Ghela died before the Hindu Succession Act came into force was a material fact in the entire controversy. Determination of rights of the parties was dependant on the said plea. It was a definite stand taken by the plaintiff in the plaint, and reiterated in his evidence. Once the plaintiff pleaded that his father had died prior to coming into force the Hindu Succession Act and claimed rights in his partition suit on that basis, he disclosed his total case in that way. The defendants, and in particular defendant No.10-appellant herein, took his position in defence in light and in the context of the case pleaded by the plaintiff. In consideration of the relief in the partition suit and in adjudicating rights of the parties as to the share of the property in the partition suit, the case of the plaintiff about the father having died prior to coming into force the Act, had a material bearing. If the case was to be otherwise, the entire spectrum of rights of the family members in the suit property would have been required to be differently treated.
C/SA/167/1992 CAV JUDGEMNT7.3 As far as the appellant-defendant No.10 who
was subsequent purchaser from defendant No.3-mother was concerned, he had take a stand in his written statement responding to the case of the plaintiff else pleaded in the plaint. When the evidence which was led, was in a different direction, it prejudiced the case of the appellant. When the evidence was led to show that father had died after coming into force of the Hindu Succession Act, it was not a minor variance with the pleading but the evidence led was diametrically opposite to what was specifically pleaded. It materially changed the complexion of the controversy and the rights of the parties in the suit. The first appellate court therefore could not have passed decree by accepting the evidence which was dehors the case pleaded by the plaintiff. Only if it were to be a minor variance in the evidence compared to the pleading, it could have been overlooked.
7.4 Party may plead differently. A case put- forth in the plaint by the plaintiff may be recast. However for that necessary averments by way of amendment is the legally permissible course. In other words, there has to be foundation in the pleadings of whatever case the plaintiff or any part want to put- forth. The plaintiff in the present case could have sought amendment in the plaint and could have prayed for incorporation of the averments in substitution of the original case. Whether such amendment putting up totally different case was permissible or not is a different aspect, but in any case, without seeking C/SA/167/1992 CAV JUDGEMNT amendment or without there being foundation in the pleading, different kind of evidence could not have been led and relied upon. In Trojan and Co., Messers. (supra), the Apex Court observed that the settled proposition is that decision of a case cannot be based on the grounds outside the pleadings of the parties and it is the case pleaded that has to be found. It was observed that without the amendment of the plaint, the Court was not entitled to grant relief. It, therefore, logically follows that if the plaintiff wanted to put up an alternative case and lead evidence on different line than what was originally pleaded in the plaint, he ought to have amended his pleadings.
8. The submission of learned advocate for the respondent that the technicality in pleadings should not be permitted to override was a correct submission in abstract. However what emerged in the present case was not an aspect of technical flaw in the pleading. Nor it was a case of minor variation in the evidence adduced with the case pleaded, as already noted. The material plea on which the entire case in the plaint was based stood in contradiction with the evidence sought to be led on the aspect of time of death of the father. The two aspects were not reconcilable. In a partition suit they had a material effect on the determination of rights of the parties. It was, therefore, a matter of substance of a case where pleading was found to be one and the evidence on that aspect was sought to be led opposite to what was pleaded.
C/SA/167/1992 CAV JUDGEMNT
9. Upon visiting briefly but attentively, the evidence on record including the oral evidence, it was found that the findings reached by the Trial Court on various issues were proper and the conclusions reached were justified. It was only legal on part of the Trial Court to disregard the evidence seeking to show that the father of the plaintiff had died after 1956 which was the evidence in its nature diametrically opposite to the very case pleaded on that aspect. The first appellate court committed a manifest error in accepting and relying on that evidence and then colouring its findings and conclusions by the same. Various findings recorded by the first appellate court to pass the decree were rendered erroneous and it ought to have confirmed the view taken by the Trial Court.
9.1 The conclusion of the Trial Court that the appellant was a bonafide purchaser for value was also quite justified. On behalf of defendant No.10, Bharatsinh, son was examined at Exhibit 124. It could be shown that defendant No.10 had made inquiries before purchasing the suit land. Name of defendant No.3-mother stood on the revenue record. Defendant No.10 therefore was entitled to rely on the same. The sale in favour of defendant No.10 was for a consideration of Rs.7,500/- which was found to be upon legal necessity and financial need. The appellant could successfully discharge the burden to prove his good faith as purchaser.
10. For the above reasons and discussion, appeal C/SA/167/1992 CAV JUDGEMNT deserves to be allowed. The impugned judgment and decree of the first appellate court dated 04th January, 1991 passed by Assistant Judge, Surendranagar in Regular Civil Appeal Nos.43 of 1985 and 44 of 1985 is hereby quashed and set aside. The judgment and decree of the Trial Court stands restored.
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