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TMI Blog2008 (9) TMI 967X X X X Extracts X X X X X X X X Extracts X X X X ..... ere : (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: (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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 chall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts 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. 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 pleadi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents 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 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 proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ease mentary 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 ease mentary 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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