RAMRATAN NANDRAM KHATI Vs. KANHAIYALAL ATMARAM

JUDGEMENT

(1.) Being aggrieved by the judgment dated 27-7-2010 passed by 6th Addl. District Judge, Indore in Civil Appeal No. 1/2010, whereby the judgment dated 22-1-2010 passed by 2nd Addl. Civil Judge Class II, Indore in Civil Suit No. 40-A/2008, whereby suit filed by the appellant was dismissed and the counter-claim filed by respondents No. 4 to 6 was decreed, was maintained, present appeal has been filed.

(2.) The appeal was admitted for final hearing by this Court on the following substantial questions of law :-

(3.) Learned counsel for the appellant argued at length and submits that the impugned judgment passed by the learned Courts below are illegal, incorrect and deserve to be set aside. It is submitted that the appeal filed by the appellant was partly allowed as the learned Appellate Court set aside the findings of the learned trial Court whereby it was held that the respondent No. 1 is continuously in possession of the suit land and it was held that in fact appellant is in occupation of the land. It is submitted that in view of the aforesaid observations made by the learned Appellate Court there was no justification on the part of learned Appellate Court in not granting the decree in favour of appellant. It is submitted that in para-20 of the impugned judgment possession of the appellant has been held by the learned Appellate Court as Bataidar, while it was not the case of respondent No. 1 that appellant is in occupation of the land as Bataidar. It is submitted that on the contrary case of respondent No. 1 was that respondent No. 1 is continuously in occupation of the suit land and by amendment application dated 7-9-2008 pleadings made in the counter-claim was amended alleging that inspite of interim order dated 1-7-2008 appellant has taken possession of the suit land forcibly on 18-2-2008, therefore, respondent No. 1 be put into possession. It is submitted that the findings of the learned Appellate Court that appellant is in occupation of the land as Bataidar is contrary to law as the Court cannot make out a case which is not the case of parties. LEARNED counsel placed reliance on a decision in the matter of Vinod Kumar Arora vs. Smt. Surjit Kaur, 1987 AIR(SC) 2179 wherein Hon'ble Apex Court held that the pleadings of parties form the foundation of their case and it is not open to them to give up the case set out in the pleadings and propound a new and different case. Further reliance is placed on a decision in the matter of Kamtaprasad vs. Damrilal,1979 11 MPWN 196 wherein appellate Court decreed the suit on a ground which was outside the pleadings, this Court held that the order is bad in law. Reliance is also placed on a decision in the matter of Balya Balai vs. Bhuribai,1982 MPWN 170 wherein this Court has held that no amount of evidence can be looked into upon a plea never put forward. LEARNED counsel further submits that two applications were moved by the appellant under Order 41. Rule 27, Civil Procedure Code, which were dated 5-5-2010 & 6-7-2010. It is submitted that since the learned trial Court critisized that appellant has not adduce the witness before whom 'sale consideration was paid, therefore, along with the applications appellant filed the death certificate of the witness Mangilal Bagwala and Mangilal s/o Narayan and also filed his own affidavit, but the applications were not taken into consideration by the learned Appellate Court. LEARNED counsel placed reliance on a decision in the matter of Jatinder Singh vs. Mehar Singh, 2009 AIR(SC) 354 wherein appellant filing application for adducing additional evidence, Hon'ble Apex Court held that dismissal of appeal without deciding application for additional evidence is improper. Further reliance is placed on a decision in the matter of North Eastern Railway Administration vs. Bhagwan Das, 2008 AIR(SC) 2139 wherein Hon'ble Apex Court held that High Court dismissing the appeal even without considering application is improper. LEARNED counsel submits that in the facts and circumstances of the case, appeal filed by the appellant be allowed and the impugned judgment passed by the learned Courts below be set aside.