# Ganga Prasad Rai Defendant/ v. Kedar Nath Rai & Anr

- **Citation:** (2019) 3 ILRA 730
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-13
- **Case number:** Second Appeal No. 323 of 1999
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ganga-prasad-rai-defendant-v-kedar-nath-rai-anr-44943
- **Pages:** 17

## Headnote

A. Civil Law- Civil Procedure Code, 1908
- Order 6 - Pleadings - Courts cannot
travel beyond pleadings and cannot
grant relief which is not sought - Court
cannot receive evidence of facts which
are not stated in the pleadings.

Held: - Appellate court erred in law by going
beyond pleadings and in excess of relief
sought and partitioning the entire property
which were not subject matters of dispute in
the plaint. (Para 41, 49)

B. Civil Law-Civil Procedure Code, 1908 -
Order 7 Rule 14 - Documents relied on in
plaint - Documents not mentioned in the list
of documents appended to the plaint under
Order 7 Rule 14 CPC nor marked as exhibits
by the court - could not be relied upon.

Held:- Appellate court erred in relying on
Consolidation Form 41 (Paper No. 95C), since
it could not have been received in evidence, in
absence of pleadings - Said document was not
admissible in evidence because it was not
mentioned in the list of documents submitted
with the plaint nor marked as an Exhibit by
the learned trial court to be admitted in
evidence. (Para 51)

C.
Property
-
Partition
by
family
settlement/arrangement - are accepted
by the courts

Held:- Courts have vested sanctity in family
partition, by according finality to family
partitions. A bonafide partition once effected
between the parties is final and irrevocable.
The parties cannot renege from the same. The
partition cannot be undone subsequently on
the ground of mere inequality of shares. (Para
55)

Appellate court erred by making a fresh
partition of the property, since the property
ceased to be partible and the jointness did not
exist after the partition was given effect to.
(Para 64)

D. Practice and Procedure - Appellate
Court - Appellate court redrawing the
boundaries of the plots of land and
recreating a map of disputed properties -
illegal.

Held:- Appellate court traced a fresh map of
the entire inherited property of the parties and
redrew the boundaries of the plots itself,
without physical inspection of the site - Parties
not complicit in the process of redrawing the
map and recasting the respective shares of
the parties. No objections called by the court
during the entire procedure - Map and the
partition basis of its judgment and forms part
of the decree - Procedure adopted by
appellate court in creating the map of the
property not known to law. (Para 65)

E. Practice and Procedure - Issue of
Jurisdiction - should be pleaded - Ouster
of jurisdiction of the civil court not to be
readily presumed.

Held:- Issue of jurisdiction is not a pure
question of law being a mixed question of law
and fact, the same should have been pleaded
and an issue was required to be framed before
the learned trial court - Defendant cannot
surprise the plaintiff raising the issue of
jurisdiction second appeal stage - Ouster of
jurisdiction of the civil court shall not be
readily presumed. (Para 74, 75)

Second Appeal allowed (E-5)
List of Cases Cited: -

## Text

_Characters 0–39,843 of 54,303. This is a partial read: ask again with offset=39843 for what follows._

730 INDIAN LAW REPORTS ALLAHABAD SERIES
reasons given by Trial Court and those
reasons must also be reversed. Unless that
is done, judgment of lower Appellate
Court cannot be held to be consistent with
the requirement of Order XLI, Rule 31,
which is a mandatory provision.

48. The above view has also been
followed recently in Jaideo Yadav Vs.
Raghunath Yadav & Anr., 2009(3)
PLJR 529 wherein the Court said that
Trial Court recorded its findings but
lower Appellate Court had not reversed
the said findings and rather on the basis of
some findings of its own, title appeal was
allowed by lower Appellate Court without
appreciating findings of Trial Court on the
concerned issue. The court then said :

"The law is well settled in this
regard that where the judgment of the
lower appellate court is a judgment of
reversal it is primary duty of the appellate
court to consider the reasons given by the
trial court and those reasons must also be
reversed."

49. This court has also followed the
same view in Doodhnath and another
Vs. Deonandan AIR 2006 Allahabad 3.
Recently this view has also been followed
in Second Appeal No. 47 of 2015,
Awadh
Narayan
Singh
Vs.
Harinarayan, decided on 22.1.2015.

50. On the basis of above discussions
and exposition of law of Hon'ble Supreme
Court and this Court, impugned judgement
dated 27.03.2001 can not sustain. Learned
First
Appellate
court
has
recorded
misconceived and perverse finding regarding
notice dated 03.08.1993 sent under Section
106 Transfer of Property Act, 1882 by the
plaintiff to the respondents that it was
defective and invalid.

51. The impugned judgment and
order dated 27.03.2001 passed in Civil
Appeal No. 6 of 2001: Ganesh Prasad
Mishra and others Vs. Radha Krishna Ji
Mandir, Kamlapur, is hereby set aside and
the judgment and order dated 19.12.2000
delivered by the learned Court of Civil
Judge (Junior Division), Biswan, Sitapur
in Civil Suit No. 17 of 1994 (Radha
Krishnaji Virajman Mandir, Kamlapur Vs.
Ganesh Prasad Master and another) is
hereby upheld and affirmed and restored.

52.

The
second
appeal
is
accordingly allowed.

53. The record of trial court and
First Appellate Court be sent back.

54. The copy of judgment be sent to
the trial Court for compliance.
----------
(2019)11ILR A730

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.09.2019

BEFORE
THE HON'BLE AJAY BHANOT, J.

Second Appeal No. 323 of 1999

Ganga Prasad Rai ...Defendant/Appellant
Versus
Kedar Nath Rai & Anr.
 ...Plaintiffs/Respondents

Counsel for the Appellant:
Sri S.K. Chaturvedi, Sri R.N. Tripathi, Sri
Anant Kishor

Counsel for the Respondents:
Sri R.K. Chitragupta, Sri A.N. Srivastava,
Sri Pradeep Narain Pandey, Sri Ramanand
Pandey, Sri S.N. Srivastava
3 All. Ganga Prasad Rai Vs. Kedar Nath Rai & Anr.
731
A. Civil Law- Civil Procedure Code, 1908
- Order 6 - Pleadings - Courts cannot
travel beyond pleadings and cannot
grant relief which is not sought - Court
cannot receive evidence of facts which
are not stated in the pleadings.

Held: - Appellate court erred in law by going
beyond pleadings and in excess of relief
sought and partitioning the entire property
which were not subject matters of dispute in
the plaint. (Para 41, 49)

B. Civil Law-Civil Procedure Code, 1908 -
Order 7 Rule 14 - Documents relied on in
plaint - Documents not mentioned in the list
of documents appended to the plaint under
Order 7 Rule 14 CPC nor marked as exhibits
by the court - could not be relied upon.

Held:- Appellate court erred in relying on
Consolidation Form 41 (Paper No. 95C), since
it could not have been received in evidence, in
absence of pleadings - Said document was not
admissible in evidence because it was not
mentioned in the list of documents submitted
with the plaint nor marked as an Exhibit by
the learned trial court to be admitted in
evidence. (Para 51)

C.
Property
-
Partition
by
family
settlement/arrangement - are accepted
by the courts

Held:- Courts have vested sanctity in family
partition, by according finality to family
partitions. A bonafide partition once effected
between the parties is final and irrevocable.
The parties cannot renege from the same. The
partition cannot be undone subsequently on
the ground of mere inequality of shares. (Para
55)

Appellate court erred by making a fresh
partition of the property, since the property
ceased to be partible and the jointness did not
exist after the partition was given effect to.
(Para 64)

D. Practice and Procedure - Appellate
Court - Appellate court redrawing the
boundaries of the plots of land and
recreating a map of disputed properties -
illegal.

Held:- Appellate court traced a fresh map of
the entire inherited property of the parties and
redrew the boundaries of the plots itself,
without physical inspection of the site - Parties
not complicit in the process of redrawing the
map and recasting the respective shares of
the parties. No objections called by the court
during the entire procedure - Map and the
partition basis of its judgment and forms part
of the decree - Procedure adopted by
appellate court in creating the map of the
property not known to law. (Para 65)

E. Practice and Procedure - Issue of
Jurisdiction - should be pleaded - Ouster
of jurisdiction of the civil court not to be
readily presumed.

Held:- Issue of jurisdiction is not a pure
question of law being a mixed question of law
and fact, the same should have been pleaded
and an issue was required to be framed before
the learned trial court - Defendant cannot
surprise the plaintiff raising the issue of
jurisdiction second appeal stage - Ouster of
jurisdiction of the civil court shall not be
readily presumed. (Para 74, 75)

Second Appeal allowed (E-5)
List of Cases Cited: -
1. Sri Venkataramana Devaru & ors. Vs The
St. of Mysore & ors. AIR 1958 SC 255.
2. Ram Sarup Gupta Vs Bishun Narain Inter
College (1987) 2 SCC 555.

3. SBI Vs S.N. Goyal (2008) 8 SCC 92.

4. Maria Margarida Sequeira Fernandes Vs Erasmo
Jack de Sequeira (2012) 5 SCC 370.

5. Union of India Vs Ibrahim Uddin (2012) 8 SCC 148.

6. Ranganayakamma Vs K.S. Prakash (2008)
15 SCC 673.
7. Hari Shankar Singhania Vs Gaur Hari
Singhania (2006) 4 SCC 658.
732 INDIAN LAW REPORTS ALLAHABAD SERIES
8. Devarajan Vs Janaki Ammal (Civil Appeal
No. 2298 of 1966).

9. Ratnam Chettiar Vs S.M. Kuppuswami
Chettiar (1976) 1 SCC 214.

10. Shub Karan Bubna Vs Sita Saran Bubna
(2009) 9 SCC 689.

11. Santosh Hazari Vs Purushotam Tiwari
(2001) 3 SCC 179

(Delivered by Hon'ble Ajay Bhanot, J.)

1. This second appeal arises out of
the
judgment
and
decree
dated
19.01.1999 and 25.01.1999 respectively,
entered
by
learned
District
Judge,
Siddharth Nagar, in Civil Appeal No. 40
of 1998, Kedarnath Vs. Ganga Prasad Rai
& another, which partly modifies and
largely upsets the judgment and decree
dated
26.03.1998
and
07.04.1998
respectively rendered by the learned IIAdditional Civil Judge (Junior Division),
Bansi, Siddharth Nagar in Original Suit
No. 295 of 1980, Kedar Nath Vs. Ganga
Prasad Rai and another.

2. This second appeal has been
instituted by Ganga Prasad Rai, who is
arrayed as defendant no. 1 in the suit.

3. Civil action was brought by the
plaintiff-respondent no.1, against the
defendant no.1-appellant and defendant
no.2-respondent
no.2,
by
instituting
Original Suit No. 295 of 1980, Kedar
Nath Vs. Ganga Prasad and others, before
the IInd Additional Civil Judge (Junior
Division), Bansi, District Basti (Siddharth
Nagar). The genealogical table set out in
the plaint which describes the respective
positions of the parties to the suit is
extracted below.

Vishwanath Rai
 Kedar Nath Ganga
Prasad Rai Parmatma Prasad Rai

4. The plaintiff-respondent no.1,
defendant no.1-appellant and defendant
no.2-respondent no. 2 are real brothers.
The plaint asserts that the property in
dispute devolved upon the parties by
inheritance was partitioned in three equal
parts. The parties came in possession of
their respective shares pursuant to the said
family settlement. The land situated in
Plot Nos. 2913 and 2914 marked as
ABCD in the map at the foot of the plaint,
constitutes the disputed property in the
suit. According to the plaint, the plaintiffrespondent no. 1 is the sole owner of the
said property as it was apportioned to him
in the partition.

5. The defendant no. 1-appellant
threatened to force himself on the
disputed land, made encroachments and
raised constructions thereon, which are
marked as K L M N and X Y P Q R in the
map attached at the foot of the plaint.

6. On this cause of action, the suit
was instituted by the plaintiff -respondent
no.1 seeking various reliefs. The plaintiffrespondent no.1 prays that the defendant
no. 1- appellant, be permanently injuncted
from
interfering
in
the
peaceful
possession of the plaintiff-respondent
no.1, over the disputed plot of land
marked as ABCD in the map at the foot of
the plaint.

7. A mandatory injunction against
defendant no. 1-appellant is sought, after
demolition of the constructions marked as
K L M N and X Y P Q R made by
defendant
no.
1-appellant
over
the
disputed plot. Finally, the relief clause
prays that the possession of the parts of
3 All. Ganga Prasad Rai Vs. Kedar Nath Rai & Anr.
733
the
land
on
which
the
disputed
constructions have been raised by the
defendant no. 1-appellant, be made over
to the plaintiff-respondent no. 1.

8. The alternative prayer is to
partition the disputed property i.e. the
plots' numbers' 2913 and 2914.

9. The defendant no. 1-appellant
entered his opposition to the plaint in the
written
statement.
In
the
written
statement, the defendant no. 1- appellant
categorically denies all allegations of
encroachment of land and asserts that the
disputed plot of land A B C D fell to the
share of the defendant no. 1-appellant in
the partition. True status of the shares of
respective parties after the partition is
provided in the map at the foot of the
written statement.

10. The written statement references
the the judgement of the consolidation
officer dated 20.03.1986 rejecting the
claim of the plaintiff-respondent no. 1, on
the disputed property, on the foot that the
family partition had already taken place
between the parties.

11. The additional written statement,
states that the plaintiff-respondent no.1
had not referenced the ancestral house in
plots nos. 2911 and 2912 in the plaint
which was also part of the partitioned
ancestral property.

12. The following issues (which are
relevant at this stage) were framed by the
learned trial court:

"1. Whether the plaintiff is the
sole owner of the area depicted as A B C
D in the map at the foot of the plaint and
is entitled to a permanent injunction?

2. Whether the defendant no. 1
made the disputed constructions marked
as X Y P Q R and K LM N in the map at
the foot of the plaint were made by the
defendant no. 1 in the land belonging to
the plaintiff and the same were liable to
be demolished?

3. Whether as an alternative
relief, the plaintiff was entitled for 1/3
part Plot Nos. 2913 and 2914 (current
Plot No. 1418 and 1419 respectively),
after a fresh partition?"

13. The learned trial court records
that the total property bequeathed by
inheritance upon the plaintiff-respondent
no.1 as well as defendant no.1-appellant
& defendant no.2-respondent no.2, was
constituted in plots' nos,. 2911/0-5-2,
2912/8-0, 2913/0-8-1 and 2914/0-5-2
Dhur. The total area comprised in all four
plots was 26 Biswa 05 Dhur. The parties
are real brothers. A family partition
divided the property into equal three
parts. The parties came into possession
over their respective shares after the
partition.

14. Employing simple mathematics,
the learned trial court concluded that an
area of 8 Biswa and 15 Dhur, devolved
upon each brother by inheritance and
partition. Appreciation of documentary
evidence and admissions of the parties
established that Plots No. 2911 and 2912
were Abadi lands, while plots no. 2913
and 2914 were recorded as Bhumidhari
lands.

15. The learned trial court then
enquired into the critical issue whether
the disputed plot marked as ABCD in the
map at the foot of the plaint, fell to the
share of the plaintiff-respondent no. 1 in
the
partition
and
the
alleged
734 INDIAN LAW REPORTS ALLAHABAD SERIES
encroachment by the defendant no.1appellant.

16. Partition of ancestral house
situated in plot nos. 2911 and 2912 was
confirmed by the learned trial court. With
the aid of the commissioner report and the
oral evidence in the record, the learned
trial court found that the area to the extent
of 8 Biswa was apportioned to the
plaintiff-respondent no.1 in plots' nos'.
2911 and 2912 in the family partition. The
defendant no. 1-appellant was allotted 1
Biswa 2 Dhur in the plots' nos'. 2911 and
2912. While an area of 3 Biswa 6 Dhur in
plots' nos'. 2911 and 2912 fell to the share
of defendant no. 2-respondent no. 2.

17. The learned trial court also held
that the parties are in settled possession
over their respective parts in plots' nos'.
2911 and 2912.

18. There was a difference in the
areas apportioned to the parties in the
ancestral house in plots' nos'. 2911 and
2912 in the partition. Consequently, the
parties, had to adjust their respective
shares in plots' nos'. 2914 and 2913 to
make the distribution equitable. The
entitlement of each party being 8 Biswa
15 Dhur.

19. The plaintiff-defendant no. 1,
was only entitled to 9 Dhur in plots' nos'.
2914 and 2913, since he got a lion's share
of the area in plots' nos'. 2911 and 2912.
Additional area, was given to defendant
no. 1-appellant and defendant no. 2respondent no.2 in plots' nos'. 2913 and
2914 to cater to the shortfall which arose
as a result of the major share being
allotted to the plaintiff-respondent no.1 in
plots' nos'. 2911 and 2912. The allotment
to the defendant no. 1-appellant in plots'
nos'. 2913 and 2914 was 7 Biswa 12 Dhur
which was his entitlement.

20. The learned trial court also
found that the parties were in possession
of their respective parts in plots' nos'.
2913 and 2914.

21. The share to which the plaintiffrespondent no. 1, was entitled in plot no.
2913 was deficient by 9 Dhur. Learned
trial court accordingly held that the
plaintiff-respondent no.1 was entitled to
an area of 9 Dhur in plot no. 2913 on the
western side and was the sole owner
thereof consequent to the partition.
Accordingly, permanent injunction in
favour of the plaintiff-respondent no. 1 in
respect of and area of 9 Dhur on the
western side in plot no. 2913 was granted
by the learned trial court.

22. The learned trial court noticed
Section 176 of the Uttar Pradesh Zamidari
Abolition
and
Land
Reforms
Act
(hereinafter referred to as the UPZA&LR
Act), which states that the partition of
Bhumidhari land lies in the exclusive
jurisdiction of the Revenue Courts. The
learned court consequently held that it did
not possess the jurisdiction to partition the
plot nos. 2913 and 2914. Moreover, the
plots had already been partitioned. Hence,
the alternative relief was denied to the
plaintiff-respondent no. 1.

23. In the wake of the aforesaid
reasoning, the learned trial court refused
the relief of demolition of the offending
constructions made by the defendant no.
1-appellant and declined to grant the
relief of mandatory injunction to the
plaintiff-respondent no. 1 in regard to the
disputed property.
3 All. Ganga Prasad Rai Vs. Kedar Nath Rai & Anr.
735

24. In this manner, the learned trial
court decided the suit by its judgment and
decree dated 26.03.1998 and 07.04.1998,
respectively.

25. The defendant no.1- appellant as
well as respondent no. 2-defendant no.2,
did not challenge the judgement and
decree passed by the learned trial court.

26. The judgment and decree dated
26.03.1998 and 07.04.1998 respectively,
rendered by the learned II-Additional
Civil Judge (Junior Division), Bansi,
Siddharth Nagar in Original Suit No. 295
of 1980, Kedar Nath Vs. Ganga Prasad
Rai and another was carried in appeal by
the plaintiff-respondent no.1.

27. The appeal was registered as
Civil Appeal No. 40 of 1998, Kedarnath
Vs. Ganga Prasad Rai & another.

28. Learned appellate court framed
the following issue for determination:

"Whether the partition took
place as alleged by the appellant or as set
up by the defendant no. 1"?

29. The learned appellate court in its
judgment dated 19.01.1999 found that the
total area of the disputed property
increased after consolidation operations.
The appellate court accepted entries of the
consolidation Form 41, (Paper No. 95C1),
to support this finding and also to record
that all 4 plots namely plots nos. 2911,
2912, 2913 and 2914 are Abadi on the
spot. The learned appellate court with the
"help" of Civil Court Amin created a fresh
map
of
the
property
from
the
Commissioner report Paper No. 52-C2.
The new map traced by the Civil Court
Amin
was
consistent
with
the
measurements recorded in consolidation
Form 41 (Paper No. 95C1). The appellate
court then made a fresh partition of the
entire property constituted in the four
plots, (plots' nos'. 2911, 2912, 2913 &
2914). The respective shares to which the
each party was entitled were marked in
the newly created map. The appellate
court accepted the total area of the four
plots,
given
in
the
consolidation
proceedings as 27 Bishwa 18 Dhur. Share
of each party in area terms, was 9 Biswa 6
Dhur.
The
share
of
the
plaintiffrespondent no.1 was marked out in read
letters ABCH in the map so created by the
appellate court.

30. In light of the above exercise
and findings, the appellate court allowed
the appeal and modified the judgment and
decree passed by the learned trial court
accordingly. The appellate court decreed
the suit of the plaintiff-respondent no.1
for possession of the disputed property
after
demolition
of
the
disputed
constructions thereon. The defendant
no.1-appellant and defendant no. 2respondent
no.2,
were
permanently
restrained
from
interfering
in
the
possession of the plaintiff-respondent
no.1 over the land shown in letters ABCH
in the map drawn by the learned appellate
court. The newly created map by the
learned appellate court was made part of
the decree.

31. Sri S.K. Chaturvedi, learned
counsel for the defendant no.1-appellant
assailing the judgment and decree entered
by the learned appellate court submits that
the judgment exceeds the pleadings and
goes beyond the relief sought by
partitioning all four plots and granting an
injunction after such partition in regard to
all the four plots namely plots no. 2913,
736 INDIAN LAW REPORTS ALLAHABAD SERIES
2914, 2911 and 2912. No pleadings with
respect
to
increase
of
area
during
consolidation proceedings were taken in the
plaint. No documents in regard to the
increased in area during consolidation
proceedings were submitted along with list
appended to the plaint which is relatable to
Order 7 Rule 14 CPC nor marked as exhibits
by the learned trial court. By relying on such
documents and finding an increase in the area
the learned first appellate court has erred in
law. The procedure adopted by the learned
appellate court to create a fresh map and for
repartitioning the four plots of land was
illegal. The findings of the learned appellate
court that all plots were Abadi lands, was
perverse particularly in view of the admission
of the parties, judgment in consolidation
proceedings and the findings of the learned
trial court. A fresh partition was not called for.

32. It was finally contended that the
jurisdiction to partition the agricultural
property vests exclusively with the
revenue courts by virtue of powers
conferred under Section 331 of the
UPZA&LR Act. The jurisdiction of the
civil court is consequently ousted in this
regard. Both the courts acted in excess of
jurisdiction conferred by law.

33. Sri Ramanand Pandey, learned
counsel for the respondents submits that
the learned appellate court was justified in
considering the area of the property which
stood enhanced after the consolidation
operations. He relied upon Consolidation
Form 41, which are part of the paper book
and marked as Paper No. 95Ga, in the
record. The papers are also part of the
record.

34. At this stage, a reference may be
made to the Original Suit No 424 of 1981,
Ganga Prasad Vs. Kedar Nath and
another, instituted by the defendant no. 1appellant, before the learned trial court.
The suit was in regard to the ancestral
house. The suit was dismissed by the
learned trial court by judgment and decree
dated 26.03.1998. The judgment of
learned trial court dated 26.03.1998 is not
taken in appeal by any party. In light of
the preceding narrative in this judgment,
the said judgment has no relevance to the
controversy at hand. It is being noticed
since the same was mentioned by Sri
Ramanand Pandey, learned counsel for
the plaintiff-respondent no.1.

35. The parties agreed during the
arguments, that the following substantial
questions of law arise for determination in
this second appeal:

I. Whether the learned appellate
court erred in law by going beyond the
pleadings made in the plaint and granting
relief in excess of relief sought, by
partitioning the entire property including
plots' nos'. 2911 and 2912 which were not
subject matters of dispute in the suit?

II.
Whether
the
learned
appellate court erred in law by finding
that the area of the plots had increased in
the
consolidation
proceedings,
even
though no such pleading was taken in the
plaint and no documents in regard to
increase in area of the plots during
consolidation
proceedings
were
mentioned in the list of documents
appended to the plaint under Order 7 Rule
14 CPC nor marked as exhibits by the
court? And whether the Consolidation
Form 41 (Paper No. 95Ga), could be
relied upon to support the finding of
increase in area in the consolidation
proceedings?

III.
Whether
the
property
remained partible, after the partition was
3 All. Ganga Prasad Rai Vs. Kedar Nath Rai & Anr.
737
duly made and given effect to many years
prior to the institution of the proceedings?

IV.
Whether
the
procedure
adopted by the learned appellate court in
redrawing the boundaries of the plots of
land and recreating a map of disputed
properties which formed the basis of its
judgment and was made part of the decree
was
lawful
and
valid
and
the
consequences thereof?

V.
Whether
the
learned
appellate court erred in law by reversing
the findings of the learned trial court
regarding the nature of all the four
disputed plots of lands?

VI.
Whether
the
learned
appellate court exceeded its jurisdiction
by partitioning the agricultural plots of
land even though exclusive jurisdiction in
the matter is vested in the revenue court
by virtue of Section 331 of the Uttar
Pradesh Zamidari Abolition and Land
Reforms Act ?

36. Brief facts relevant for deciding
the substantial questions of law so framed
shall be reprised from the preceding
factual narrative.

37. The appellate court in its
judgment partitioned the entire property
which
devolved
upon
the
parties
including the plots no. 2911 and 2912.
There was no pleading in regard to the
plots no. 2911 and 2912 in the plaint. No
issues were framed in regard to the
aforesaid plots. It is equally noteworthy
that no relief for partitioning the plots no.
2911 and 2912 was sought in the plaint.
When the parties went to trial, the status
of the aforesaid plots was not in issue.
The appellate court went beyond the
pleadings and granted relief in excess of
the relief sought by the plaintiffrespondent no. 1, by partitioning the
entire property including plots no. 2911
and 2912.

38. The plaint does not state that
area of the plots in dispute was enlarged
during consolidation proceedings. No
documents to establish increase in area of
the
plots
during
consolidation
proceedings were mentioned in the list of
documents appended to the plaint as
contemplated under Order 7 Rule 14, nor
marked as Exhibits by the learned trial
court.

39. Learned appellate court once
again went beyond the pleadings of the
parties, to find that the area of the plots in
dispute
was
increased
during
consolidation proceedings. This finding
was made on the foot of Consolidation
Form 41(Paper No. 95 C). Consolidation
Form 41 (Paper No. 95C) could not have
been received in evidence, in absence of
pleadings.

40. Further, Consolidation Form 41
(Paper No. 95C) was not admissible in
evidence, since the said document was
not mentioned in the list of documents
appended to the plaint under Order 7 Rule
14 and was not marked as an Exhibit by
the learned trial court to be admitted in
evidence.

41. The rules relating to pleadings
are set out in Order 6 C.P.C. under the
heading "Pleadings Generally". The case
of a party is set forth in the pleadings in
the plaint. The plaint must conform to the
provisions of Order 6 C.P.C. The law
relating to the pleadings is stated with
clarity in the C.P.C. and settled with
finality in various judgments of the
courts. The party has to state its case in a
concise
form
in
the
plaint/written
738 INDIAN LAW REPORTS ALLAHABAD SERIES
statement by pleading all material facts.
The pleadings should not be vague.
However, while construing the pleadings,
the courts do not adopt a hypertechincal
approach. The purpose of the pleadings is
also to alert the adversary to the case of
the
party.
This
will
enable
the
adversary/opposite party to assert its
defence and or refutal in its pleadings and
tender its evidence in regard thereto. The
law of pleadings ensures that no party can
spring a surprise upon its adversary and
render the latter without opportunity to
defend itself. The law of pleadings poses
certain limitations on parties as well as
the courts. The courts cannot travel
beyond pleadings and cannot grant relief
which is not sought. Similarly, the court
cannot receive evidence of facts which
are not stated in the pleadings.

42. It would be apposite to reinforce
the narrative with authority in point.

43. The purpose of pleadings was
examined and delineated by Hon'ble
Supreme Court in the case of Sri
Venkataramana Devaru and others v.
The State of Mysore and others, reported
at AIR 1958 SC 255, in the following
terms:

"14. Mr. M. K. Nambiar invited
our attention to Exhibit A-2, which is a
copy of an award dated November 28,
1847, wherein it is recited that the temple
was originally founded for the benefit of
five
families
of
Gowda
Saraswath
Brahmins. He also referred us to Exhibit
A-6, the decree in the scheme suit, O.S.
No. 26 of 1915, wherein it was declared
that the institution belonged to that
community. He contended on the basis of
these documents and of other evidence in
the case that whether the temple was a
private or public institution was purely a
matter of legal inference to be drawn from
the
above
materials,
and
that,
notwithstanding that the point was not
taken in the pleadings, it could be allowed
to be raised as a pure question of law. We
are unable to agree with this submission.
The object of requiring a party to put
forward his pleas in the pleadings is to
enable the opposite party to controvert
them and to adduce evidence in support
of his case. And it would be neither legal
nor just to refer to evidence adduced with
reference to a matter which was actually
in issue and on the basis of that evidence,
to come to a finding on a matter which
was not in issue, and decide the rights of
parties on the basis of that finding. We
have accordingly declined to entertain
this contention. We hold, agreeing with
the
Courts
below,
that
the
Sri
Venkataramana Temple at Moolky is a
public temple, and that it is within the
operation of Act V of 1947."

44. The Hon'ble Supreme Court in
the case of Ram Sarup Gupta v. Bishun
Narain Inter College, reported at (1987)
2 SCC 555 considered in depth the
responsibility of a party while pleading its
case and the approach of the courts
construing the pleadings. The court
precluded a party from relying on
evidence in the absence of pleadings. The
Hon'ble Supreme Court in the case of
Ram Sarup Gupta(supra) held thus:

6. The question which falls for
consideration is whether the respondents
in their written statement have raised the
necessary pleading that the licence was
irrevocable as contemplated by Section
60(b) of the Act and, if so, is there any
evidence on record to support that plea. It
is well settled that in the absence of
3 All. Ganga Prasad Rai Vs. Kedar Nath Rai & Anr.
739
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 settle 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.
Some times, pleadings are expressed in
words which may not expressly make out
a
case
in
accordance
with
strict
interpretation of law. In such a case it is
the duty of the court to ascertain the
substance of 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
the 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 issues by producing evidence in
that event it would not be open to a party
to raise the question of absence of
pleadings in appeal.

45. In SBI v. S.N. Goyal, reported at
(2008) 8 SCC 92 the Hon'ble Supreme
Court set its face against adjudication of
an issue which was not pleaded and
distinguished the adjudication of a civil
dispute from exercise of powers of
judicial review, by stating:

"21.
In
the
absence
of
appropriate pleading on a particular
issue, there can be no adjudication of
such issue. Adjudication of a dispute by a
civil court is significantly different from
the exercise of power of judicial review in
a writ proceedings by the High Court. In
a writ proceedings, the High Court can
call
for
the
record
of
the
order
challenged, examine the same and pass
appropriate
orders
after
giving
an
opportunity to the State or the statutory
authority to explain any particular act or
omission. In a civil suit parties are
governed by rules of pleadings and there
can be no adjudication of an issue in the
absence of necessary pleadings."

46. The importance of pleadings
was reprised by the Hon'ble Supreme
Court in the case of Maria Margarida
Sequeira Fernandes v. Erasmo Jack de
Sequeira, reported at (2012) 5 SCC 370.
The Hon'ble Supreme Court in Maria
Margarida Sequeira Fernandes (supra)
construing the importance of pleadings
opined thus:

"Pleadings:

53.
Pleadings
are
the
foundation of litigation. In pleadings,
only the necessary and relevant material
must be included and unnecessary and
irrelevant material must be excluded.
Pleadings are given utmost importance in
similar systems of adjudication, such as,
the United Kingdom and the United States
of America.

68. In order to do justice, it is
necessary to direct the parties to give all
details of pleadings with particulars.
Once the title is prima facie established, it
740 INDIAN LAW REPORTS ALLAHABAD SERIES
is for the person who is resisting the titleholder's claim to possession to plead with
sufficient particularity on the basis of his
claim to remain in possession and place
before the court all such documents as in
the ordinary course of human affairs are
expected to be there. Only if the pleadings
are sufficient, would an issue be struck
and the matter sent to trial, where the
onus will be on him to prove the averred
facts and documents.

71. Apart from these pleadings,
the court must insist on documentary
proof in support of the pleadings. All
those documents would be relevant which
come into existence after the transfer of
title or possession or the encumbrance as
is claimed. While dealing with the civil
suits, at the threshold, the court must
carefully and critically examine the
pleadings and documents.

72. The court will examine the
pleadings for specificity as also the
supporting material for sufficiency and
then pass appropriate orders.

74. If the pleadings do not give
sufficient details, they will not raise an
issue, and the court can reject the claim
or pass a decree on admission. On vague
pleadings, no issue arises. Only when he
so establishes, does the question of
framing an issue arise. Framing of issues
is an extremely important stage in a civil
trial. Judges are expected to carefully
examine the pleadings and documents
before framing of issues in a given case.

77. The court must ensure that
pleadings of a case must contain
sufficient
particulars.
Insistence
on
details reduces the ability to put forward
a non-existent or false claim or defence.
In dealing with a civil case, pleadings,
title documents and relevant records play
a vital role and that would ordinarily
decide the fate of the case."

47. Similarly, the Hon'ble Supreme
Court in the case of Union of India v.
Ibrahim Uddin, reported at (2012) 8 SCC
148, after considering ample authority in
point ruled as follows:

77. This Court while dealing
with an issue in Kalyan Singh Chouhan v.
C.P. Joshi[(2011) 11 SCC 786 : (2011) 4
SCC (Civ) 656 : AIR 2011 SC 1127] ,
after placing reliance on a very large
number of its earlier judgments including
Trojan & Co. v.Nagappa Chettiar [AIR
1953 SC 235] , Om Prakash Gupta v.
Ranbir B. Goyal [(2002) 2 SCC 256 : AIR
2002 SC 665] , Ishwar Dutt v. Collector
(LA) [(2005) 7 SCC 190 : AIR 2005 SC
3165] and State of Maharashtra v.
Hindustan Construction Co. Ltd.[(2010) 4
SCC 518 : (2010) 2 SCC (Civ) 207 : AIR
2010 SC 1299], held that relief not
founded on the pleadings cannot be
granted. A decision of a case cannot be
based on grounds outside the pleadings of
the parties. No evidence is permissible to
be taken on record in the absence of the
pleadings in that respect. No party can 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. It was further held
that where the evidence was not in the
line of the pleadings, the said evidence
cannot be looked into or relied upon.

78. In Bachhaj Nahar v. Nilima
Mandal [(2008) 17 SCC 491 : (2009) 5
SCC (Civ) 927 : AIR 2009 SC 1103] this
Court held that a case not specifically
pleaded can be considered by the court
unless the pleadings in substance contain
the necessary averments to make out a
particular case and issue has been framed
on the point. In the absence of pleadings,
the court cannot make out a case not
pleaded, suo motu.
3 All. Ganga Prasad Rai Vs. Kedar Nath Rai & Anr.
741

48. In light of the discussion in the
preceding paragraphs, the substantial
questions of law no. 1 and 2 are
respectively answered as follows:

Answer to substantial question of
law No. I:

49. The appellate court erred in law
by going beyond pleadings and in excess
of relief sought and partitioning the entire
property including plots no. 2911 and
2912 which were not subject matters of
dispute in the plaint.

Answer to substantial question of
law No.II :

50. The appellate court also
misdirected itself in law and travelled
beyond the pleadings by finding that the
area of the plots was enhanced during
consolidation proceedings.

51. The appellate court also erred by
relying on Consolidation Form 41 (Paper No.
95C), since it could not have been received in
evidence, in absence of pleadings. Further the
said document was not admissible in evidence
because it was not mentioned in the list of
documents submitted with the plaint nor
marked as an Exhibit by the learned trial court
to be admitted in evidence.

52. The learned appellate court
repartitioned the entire property. The
legality of this action shall now be
examined.

53. Partition of property by family
settlement is a long established alternative
dispute resolution method which is
accepted by the courts. The parties to a
family
settlement,
partition
a
joint
property on mutually accepted terms.

54. The practice of accepting the
family settlements is long, and the
rationale behind it is sound. Family
settlements are created by mutual consent
of parties. Such family settlements ensure
amicable resolution of property issues.
The family settlements preclude any
future disputes and resolve existing
disputes in an amicable fashion. Such
settlements preempt litigation and prevent
bad blood in the family. The courts have
consistently upheld the family settlements
and set their face against reopening of
family settlements which have been given
effect.

55. Courts have vested sanctity in
family partition, by according finality to
family partitions. A bonafide partition
once effected between the parties is final
and irrevocable. The parties cannot
renege from the same. The partition
cannot be undone subsequently on the
ground of mere inequality of shares.

56. It would be apposite to fortify
these propositions by good authority.

57. The Hon'ble Supreme Court in
the case of Ranganayakamma v. K.S.
Prakash, reported at (2008) 15 SCC 673
stated the purpose and attributes of family
settlements:

"30. It may be true that
although the properties were described as
coparcenary property and both the
branches were granted equal share but it
must be remembered that the decree was
passed on the basis of the settlement
arrived at. It was in the nature of a family
settlement. Some "give and take" was
necessary for the purpose of arriving at a
settlement. A partition by metes and
bounds may not always be possible. A
742 INDIAN LAW REPORTS ALLAHABAD SERIES
family settlement is entered into for
achieving a larger purpose viz. achieving
peace and harmony in the family."

58. A similar statement of law on
family partition was made by the Hon'ble
Supreme Court in the case of Hari
Shankar
Singhania
v.
Gaur
Hari
Singhania, reported at (2006) 4 SCC 658,
by holding:

"43. The concept of ''family
arrangement or settlement' and the
present one in hand, in our opinion,
should
be
treated
differently.
Technicalities of limitation, etc. should
not be put at risk of the implementation of
a settlement drawn by a family, which is
essential for maintaining peace and
harmony in a family. Also it can be seen
from decided cases of this Court that, any
such arrangement would be upheld if
family settlements were entered into to
allay disputes existing or apprehended
and even any dispute or difference apart,
if it was entered into bona fide to
maintain peace or to bring about
harmony in the family. Even a semblance
of a claim or some other ground, as say
affection, may suffice as observed by this
Court in Ram Charan Das v. Girja
Nandini Devi, AIR 1966 SC 323.

59. Stating the conditions when
partition can be reopened, the Hon'ble
Supreme Court in the case of Devarajan
v. Janaki Ammal in Civil Appeal No.
2298 of 1966 observed as under: