KASHI PRASAD Vs. BANSHIDHAR

JUDGEMENT

(1.) Appellants/plaintiff had filed a civil suit No. 105A/91, New No. 50A/94, in the Court of Ist Civil Judge, Class II, Morena for declaration, permanent injunction, mesne profit and possession to the effect that he was by virtue of temporary partition, already in possession of Survey No. 522 situated in village Imliya. The case of respondents/defendants was that this portion of land or the share of plaintiff, was surrendered to them and thus, they were in exclusive possession of the entire land and became it's absolute owner.

(2.) The trial Court vide judgment dtd. 2-3-1995, partly decreed the suit to the extent of 1/7th share and mesne profit at the rate of Rs. 4000/- per annum and also ordered for delivery of possession. However, in First Civil Appeal No. 102A/98 by the impugned judgment, the learned first appellate Court reversed the findings and dismissed the suit of plaintiff, against which, this second appeal has been admitted on following substantial questions of law:Whether, the suit of plaintiff can be dismissed on the technical ground of non-seeking of specific share in the disputed property which can be allowed under Order 7, Rule 7 of CPC?

(3.) Since both the Courts below found that there was no partition between the parties, however, the averment of defendants regarding surrender of share by plaintiffs in their favour, was also not found proved and thus, there is concurrent finding regarding joint 1/7th share of plaintiff in the disputed land. In view of this concurrent finding, the learned counsel for the appellant has submitted that in the relief clause of the plaint, it was specifically pleaded that the Court may grant any other relief to which, they are entitled. In the circumstances, their 1/7th share in the property should have been declared by the appellate Court also. However, the appellate Court declined to grant the relief on the basis that there is no pleading regarding declaration for 1/7th share in the property.