TMI Blog2008 (9) TMI 967X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 [ 1962 (4) TMI 97 - SUPREME COURT] . 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 [ 1965 (10) TMI 67 - SUPREME COURT] and Ram Sarup Gupta [ 1987 (4) TMI 476 - SUPREME COURT] and several other decisions of this Court following the same cannot be construed as diluting the well settled 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r respective costs. - R.V. RAVEENDRAN AND PANTA, LOKESHWAR SINGH, JJ. For the Petitioner : Ranjan Mukherjee For the Respondent : Deba Prasad Mukherjee ORDER: 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 (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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 plaint, the court cannot focus the attenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 opportunit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 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 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 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ease mentary right, by referring to a tray 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laration 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 ease mentary right, the first defendant did not have an opportunity to demonstrate that the plaintiffs had no ease mentary 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 ease mentary 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 ease mentary right by assuming that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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