SHEIKH ABDUL SATTAN Vs. BIBI RAHAZANI

JUDGEMENT

(1.) Defendants first party have preferred the present second appeal against a judgment of reversal. Appellant No. 1 died during the pendency of the appeal. His only heir appellant No. 2 is on record. The plaintiffs-respondent-first party brought a suit for declaration of title and recovery of possession over 13 dhurs of land out of plot No. 921 of khata No. 86 of village Madho-pur, Police Station Dhaka, in the district of East Champaran. Her case was that' defendants 1st party had encroached upon 13 dhurs of her land from the north and had amalgamated the same with their own land. Defendants 1st party denied to have dispossessed the plaintiff, The learned Munsif disbelieved the plaintiff's story of dispossession from north as given in the plaint and did not grant any decree for recovery of possession. He, however, held that the plaintiff was entitled to possess the 4 dhurs of land lying parti as reported by the Pleader Commissioner and granted a declaration to that effect. Thus, the suit was decreed in part. The plaintiffs went in appeal to the District Judge in Title Appeal No. 102 of 1968, The appeal was allowed by the learned District Judge, the judgment and decree of the trial Court were set aside and the suit was remanded to the trial Court with a direction that the plaintiffs should be given an opportunity to make suitable amendment of the plaint and adduce additional evidence, if necessary. The reason for the open remand order in exercise of the inherent power of the court was: "I have considered the difficulty of the appellant and 1 feel that no substantial relief can be given in this appeal on the pleadings as it stands in the plaint. Amendments are, therefore, necessary to give the proper reliefs to the plaintiff. In order to make the case of the plaintiff consistent it may be necessary to take some additional evidence." Defendants first party moved this Court in Civil Revision No. 1001 of 1970 against the order of remand. The revision was allowed and the order of remand was set aside. The court of appeal below was directed to re-hear the appeal on merits and dispose it of in accordance with law and in the light of the observations made in the order of remand. After this the District Judge again heard the parties and passed a decree in favour of the plaintiffs in respect of 4 dhurs of land from the south of the disputed plot. He held that the plaintiffs were not in possession over 4 dhurs of land over which she ought to have been in possession. From the evidence of P.W. he concluded that the dispossession had taken place as alleged by the plaintiffs, He thus said that dispossession took place from the sourthern side and those dhurs of land were in possession of defendants 1st party. He accordingly, directed defendants 1st party to give up possession of the same within three months failing which the plaintiffs will be entitled to take possession through the processes of Court.

(2.) In this Court it is contended on behalf of the appellant that the learned District Judge has made out a new case for the plaintiffs, and this cannot be done in law. In my opinion, the contention has substance. A party cannot be allowed to travel beyond the pleadings. In the present case the definite case of the plaintiff in the plaint was that the encroachment was from the north. The evidence on record adduced by the plaintiff also shows that the plaintiffs insisted upon their case as made out in the plaint. It was never the case of the plaintiff that the encroachment was from the south. The learned District Judge granted a decree in favour of the plaintiff simply on the ground that she was not in possession over four dhurs of their land over which she ought to have been in possession. In my opinion, this was not a ground at all to grant a decree. It was for the plaintiff to prove her case of dispossession from the northern portion of the plot. The plaintiffs totally failed to prove it. There is absolutely no evidence on record to show that the encroachment was from the south. Pleader Commissioner had been appointed in this case and he also reported that there was no encroachment from the north. Both the courts below have held that there was no encroachment from the north. The story of dispossession from the northern portion of the plot was disbelieved. It is clear that the District Judge made out a new case for the plaintiff-respondent 1st party which had no foundation in the plaint. It is well settled that the decision of a case cannot be based on grounds outside the plea of the parties and that it is the case pleaded which was to be found: Siddu Venkappa Devadiga v. Smt, Rangu S. Devadiga, AIR 1977 SC .890. Therefore, in the instant case the District Judge in appeal, went wrong in making out a new case of encroachment from the south of the plot which was not pleaded. In this view of the matter the judgment and decree of the District Judge are clearly erroneous and illegal.

(3.) In the result the appeal is allowed. The judgment and decree of the District Judge, Motihari, dated the 6th of Oct., 1972 are set aside and that of the munsif restored but without costs.