Raja Ram v. Ram Asrey

Order 41 reads as under: "27.Production of additional evidence in appellate court.—(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. But if—

(a) The court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) The appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the appellate court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an appellate court, the court shall record the reason for its admission." (emphasis supplied)

¶12From the opening words of sub-rule (1) of Rule 27, quoted above, it is clear that the parties are not entitled to produce additional evidence whether oral or documentary in the appellate court, but for the three situations mentioned above. The parties are not allowed to fill the lacunae at the appellate stage. It is against the spirit of the Code to allow a party to adduce additional evidence without fulfilment of either of the three conditions mentioned in Rule 27. In the case at hand, no application was moved before the trial court seeking scientific examination of the document (Ext. A-4), nor can it be said that the plaintiff with due diligence could not have moved such an application to get proved the documents relied upon by him. Now it is to be seen whether the third condition i.e. one contained in clause (b) of sub-rule (1) of Rule 27 is fulfilled or not.

¶13In K.R. Mohan Reddy v. Net Work Inc. [K.R. Mohan Reddy v. Net Work Inc., (2007) 14 SCC 257] this Court has held as under: (SCC p. 261, para 19) "19. The appellate court should not pass an order so as to patch up the weakness of the evidence of the unsuccessful party before the trial court, but it will be different if the court itself requires the evidence to do justice between the parties. The ability to pronounce judgment is to be understood as the ability to pronounce judgment satisfactorily to the mind of the court. But mere difficulty is not sufficient to issue such direction."

¶14In North Eastern Railway Admn. v. Bhagwan Das [North Eastern Railway Admn. v. Bhagwan Das, (2008) 8 SCC 511] this Court observed thus: (SCC pp. 515-16, para 13) "13. Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107 CPC, which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 CPC. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist."

¶15In N. Kamalam v. Ayyasamy [N. Kamalam v. Ayyasamy, (2001) 7 SCC 503] this Court, interpreting Rule 27 of Order 41 of the Code, has observed in para 19 as under: (SCC p. 514) "19. … the provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the court of appeal— it does not authorise any lacunae or gaps in the evidence to be filled up. The authority and jurisdiction as conferred on to the appellate court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way."

¶16In Union of India v. Ibrahim Uddin [Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 : (2012) 4 SCC (Civ) 362] this Court has held as under: (SCC p. 171, para 49) "49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced." (emphasis in original)

¶26In view of above, the first appellate court has not committed any perversity, illegality or error in taking the correction deed on record and granting time for rebuttal. However since no rebuttal was filed, the same could have been considered in accordance with law and rightly considered.

¶27One of the contentions of the learned counsel for the appellant is that any evidence adduced in absence of pleading can not be considered and since the pleadings in regard to the sale deed executed by Manno Devi in favour of Ram Chandra, minor son of Babu Lal and the sale deed executed by him in favour of Chhote Lal and Lalti Devi and correction deed were not made, the same could not have been considered in evidence. The suit for permanent injunction was filed claiming title on the basis of the registered sale deed executed on

31.10.1979, which is the basis of the suit and it has not been challenged by the defendant-appellant or anybody else and the same has been got corrected through correction deed dated 30.08.1989. The other two sale deeds executed by Manno Devi and Ram Chandra are not the basis of the suit. They only show the chain of title to the plaintiff-respondents. Even otherwise, the said registered sale deeds have also not been challenged or set-aside by any competent court.

¶28The appellate court in view of the registration of the earlier two sale deeds has drawn a presumption of execution of those sale deeds by the persons, who have executed the said sale deeds and in accordance with law. This Court does not find any illegality or error in it because as per Section 90-A of the Evidence Act, 1872, the said presumption could have been drawn. However, if the sale deed dated

31.10.1979 could not have been proved, the position may have been different.

¶29Order-6, Rule-2 CPC provides that the pleadings to state material facts and not evidence. Sub-Rule (1) provides that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. Rule 3 of Order-6 provides forms of pleadings and the forms in Appendix 'A' can be used where they are applicable and in absence, forms of the like character, as nearly as may be, shall be used. Rule-4 of Order-6 provides that particulars to be given where necessary. It provides that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading. Thus, the pleadings required only a statement in a concise form or material facts on which the party pleading relies for his claim or defence but not the evidence by which they are to be proved.

¶30The Hon'ble Supreme Court, in the case of Kalyan Singh Chouhan Vs. C.P. Joshi (Supra), has observed that it is settled legal proposition that "as a rule relief not founded on the pleadings should not be granted." Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties and pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. The relevant paragraph-19 is extracted here-in-below:-

¶19Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is settled legal proposition that "as a rule relief not founded on the pleadings should not be granted." Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ. (Vide : Sri Mahant Govind Rao v. Sita Ram Kesho, (1898) 25 Ind. App. 195; M/s. Trojan & Co. v. RM. N.N. Nagappa Chettiar, AIR 1953 SC 235; Raruha Singh v. Achal Singh & Ors.; AIR 1961 SC 1097; Om Prakash Gupta v. Ranbir B. Goyal, AIR 2002 SC 665; Ishwar Dutt v. Land Acquisition Collector & Anr., AIR 2005 SC 3165; and State of Maharashtra v. Hindustan Construction Company Ltd., (2010) 4 SCC 518.)

¶31The Hon'ble Supreme Court, in the case of Biraji @ Brijraji Vs. Surya Pratap and Others (Supra), has held that it is fairly well settled that in absence of pleading, any amount of evidence will not help the party.

¶32The Hon'ble Supreme Court, in the case of Srinivas Raghavendrarao Desai (D) by LRS. Vs. V. Kumar Vamanrao @ Alok (Supra) and Others, has observed that there is no quarrel with the proposition of law that no evidence can be let beyond pleadings.

¶33A coordinate Bench of this Court, in the case of Smt. Sushila Devi Vs. Smt. Jasoda Bai and Others (Supra), has observed that Order 6 of the Civil PC deals with pleadings generally. Rule 2 of the said Order lays down that every pleading shall contain and contain only, a statement in concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. Rule 3 of the said Order further lays down that the forms prescribed in Appendix A to the Civil P.C. shall as far as possible, be adhered to. The sale deed dated Nov. 30, 1955, referred to above, was in the nature of evidence and it should not have been pleaded by the plaintiff. The alleged shortcoming in the plaint pointed out by the court of appeal was actually not a defect and no presump-tion could have been drawn against the plaintiff on that account.

¶34A coordinate Bench of this Court, in the case of Ved Prakash Rastogi Vs. Nagar Palika Badaun (Supra), has considered the provisions of Order-6, Rule-2 CPC and observed that the plaintiff in paragraph-5 of the plaint has pleaded that " The plaintiff is the bhumidhar and owner in possession over the property in suit for more than 12 years.", which is precise, concise and in accordance with the provisions of Order-6, Rule-2 C.P.C. These are the crucial facts, which are essential for his ownership and possession. How the plaintiff is the owner or in possession is required to be proved by the plaintiff by way of evidence. So far as the ownership is concerned, the plaintiff had proved by way of filing a certified copy of the sale deed executed in his favour. It was not necessary for the plaintiff to state in his plaint that he was the owner on the basis of a sale deed. It was sufficient for the plaintiff to allege in his Plaint that he was the owner. The relevant paragraphs no.17 to 22 are extracted here-in-below:- "17. On the question of ownership, the lower appellate court had ousted the plaintiff on the ground that the plaintiff did not plead in his plaint specifically about the source of his ownership nor pleaded about the execution of the sale deed in his favour. The lower appellate court, also held that the certified copies of the sale deed could not be relied upon nor was it admissible in evidence, since specific pleadings had not been made by the plaintiff in his plaint.

¶18In my view, the approach adopted by the lower appellate court, is patently perverse and is against the provisions of Order VI, Rule 2, C.P.C. which is quoted hereunder: Order VI, Rule 2. Pleading to state material facts and not evidence.--(1) Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be powered.

(2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.

(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.

¶19A perusal of Order VI, Rule 2, C.P.C. indicates that the pleadings should contain only a statement in a concise form of the material facts on which a party relies for his claim. In the present case, the plaintiff in paragraph-5 of the plaint has pleaded the following: The plaintiff is the bhumidhar and owner in possession over the property in suit for more than 12 years.

¶20In my opinion, this pleading is precise, concise and is in accordance with the provisions of Order VI, Rule 2, C.P.C. The plaintiff alleges that he is the bhumidhar, owner and in possession for more than 12 years. These are the crucial facts, which are essential for his ownership and possession. How the plaintiff is the owner or in possession is required to be proved by the plaintiff by way of evidence. So far as the ownership is concerned, the plaintiff had proved by way of filing a certified copy of the sale deed executed in his favour. It was not necessary for the plaintiff to state in his plaint that he was the owner on the basis of a sale deed. It was sufficient for the plaintiff to allege in his Plaint that he was the owner.

¶21In Smt. Sushila Devi v. Smt. Jasoda Bai and Ors. 1981 ALJ 263, in a suit for possession involving a dispute with regard to the ownership of a platform in a house, the Court held that it was sufficient for the plaintiff to plead that he was the owner and was in possession of the platform in his plaint which was in accordance with the provisions of Order VI, Rule 2, C.P.C. The Court held: In order to substantiate her claim, the plaintiff relied on the sale deed dated November 30, 1955 executed by Pooran Chand jointly in her favour and in favour of Shanti Devi. It has been observed by the Court of appeal that the said sale deed had not been specifically pleaded in the plaint, and, as such it was not open to the plaintiff to rely on the same. This observation of the Court of appeal is not sustainable in law. Order VI of the Civil Procedure Code deal with pleadings generally. Rule 2 of the said Order lays down that every pleading shall contain and contain only, a statement in concise form of the material facts on which the party pleading relied for his claim or defence, as the case may be, but not the evidence by which they are to be proved. Rule 3 of the said order further lays down that the forms prescribed in Appendix A to the Civil Procedure Code shall as far as possible, be adhered to. The sale deed dated November 30, 1955, referred to above, was in the nature of evidence and it should not have been pleaded by the plaintiff. The alleged shortcoming in the plaint pointed out by the court of appeal was actually not a defect and no presumption could have been drawn against the plaintiff on that account.

¶20The aforesaid judgment is squarely applicable to the present case and fortifies the view taken by me. Consequently, the lower appellate court was not justified in holding that the plaintiff was unable to prove his source of title and further committed an error in holding that the sale deed could not be considered in evidence."

¶35In view of above, there is no set form of pleadings. The pleading should be precise, concise and in accordance with Order-6, Rule-2 CPC and the evidence by which the pleadings are to be proved need not be pleaded. The evidence can be adduced to prove the pleadings. However the evidence can not be adduced in absence of pleadings, therefore if the pleading has not been made, the evidence to prove the same can not be adduced. Thus the nature of pleading and evidence to prove it depends on the facts and circumstances of the case.

¶36Adverting to the facts of the case, the plaintiff-respondents has stated in paragraph-2 of the plaint that the plaintiffs had purchased the plot in dispute through registered sale deed dated 31.10.1979 from Shri Chhote Lal, the power of attorney holder of Smt. Lalti Devi and since the time of purchase they are in possession till date, therefore, the pleading was sufficiently made in regard to their ownership to the effect that the land in dispute was purchased from the previous owner and after purchase they are in possession of the land in dispute. Thus, the claim is based on the sale deed dated 31.10.1979, which includes as to how the executor was owner, which is not required to be pleaded. However, if objection is raised any evidence is required to be adduced to prove as to how the executor was owner, the evidence could have been adduced and considered in accordance with law and considered accordingly. Similarly, in the written statement a plea was taken that Smt. Lalti Devi was not the previous owner of the land in dispute and she had no right to execute the sale deed and Chhote Lal was not her power of attorney holder. The previous owner of the land in dispute was Devi Deen, the real uncle of the defendant-appellant and he was in possession and owner of the land in dispute and after his death it is continuing. It was required to be proved by cogent evidence, which the defendant-appellant has failed to do, which is apparent from the findings recorded by the first appellate court on the basis of evidence and material on record and it does not suffer from any perversity, illegality or error.

¶37One of the pleas of learned counsel for the defendant-appellant is that the suit for permanent injunction without prayer for declaration was not maintainable. The suit for permanent injunction only is not maintainable if there is any cloud on the title of plaintiff and in such circumstance, the plaintiff is required to pray for declaration of his title also. Therefore it is to be seen as to whether, there was any cloud on the title of plaintiff-respondents and the cloud on the title of plaintiff-respondent was genuine and of any substance on account of which he was required to make prayer for declaration also.

¶38The defendant-appellant pleaded in written statement that Smt. Lalti Devi had no right to execute the sale deed and as she was not the owner of the land in dispute and the uncle of the defendant-appellant Devi Deen was the owner of the land in dispute. However it was without any evidence even prime facie, whereas there is registered sale deed in favour of the plaintiff-respondents, therefore it can not be said that there was a cloud on the title of the plaintiff-respondents and the suit for permanent injunction without prayer for declaration was not maintainable. Thus, the contention of learned counsel for the defendant-appellant is misconceived and not sustainable.

¶39A coordinate Bench of High Court of Madras, in the case of Arulmigu Velukkai Sri Azhagiya Singaperumal Devasthanam rep. by its Trustees and Others Vs. G.K. Kannan and Others (Supra), has taken similar view. The relevant paragraphs 35 to 39 are extracted here-in-below:- "35. It can now be deduced that, to constitute a cloud on plaintiffs title, there must be evidence for the Court to conclude prima facie that the plaintiffs assertion of title to a legal character, or to a right over a property has come under the cloud. Let it not be forgotten, that life's experience in this country, which both the Courts and the legal practitioners would vouchsafe, that not every litigant makes a bonqftde denial of plaintiffs title. While, a bonqftde denial of plaintiff title with some evidence may merit consideration, to nonsuit the plaintiff with a colourable denial of former's title will be unconscionable, if only it is acknowledged that fairness is integral to our adversarial jurisprudence.

¶36Hence, it is necessary for the Court to weigh: • The quality of the pleadings to ascertain if the defendant alleges if a third party to the suit has the title, or, if he traces his title to the same source from which plaintiff also derives title, or if the defendant relies on an independent source of title to some other source; • If the evidence produced by the defendant to prove his plea of denial of the plaintiffs title covers the same period for which the plaintiff has produced the evidence, or whether such evidence as produced by both the plaintiff and the defendant are separated by a clear time-line; • If any adverse inference is required to be drawn against any of the parties for not producing the evidence which is in their capacity to produce, and evaluate the relative quality of the evidence made available before it. (What is indicated here is not exhaustive since every case has its own character. When the rule of probability determines the nature of the decision to be made, it can never be exhaustive too.). This precisely is the exercise what the Court engages in it is required to enter a finding on a disputed title incidentally in a suit for bare injunction.

¶37Ideally, the Court may engage in a certain process to achieve a certain degree of balance between a bonafide denial of title and a colourable denial of title: • Firstly, it may independently evaluate the plaintiff's title based on the evidence he produces, and then evaluate the resistance to it in terms of the defendant's case. Then it may try viewing the conclusion arrived on the plaintiffs case through the conclusion arrived in defendants case (something like holding a glass in between the eye and the object). • If the vision to the plaintiffs title is not obstructed or blurred, then there is no cloud on plaintiffs title, and if it is not, then there is one (though in actual working, the mind works faster and enables an understanding instantaneously). • And if after this process, the Court holds that the suit is maintainable without a relief of declaration, then subject to the rule of res judicata, the defendant may institute a suit to establish his title.

¶38The above course, in the estimate of this Court, will infuse a certain degree of processual fairness to the whole discourse relating to 'cloud on title', and non-suiting the plaintiff for not seeking a declaratory relief If it were to be understood differently, then a person with a settled title and possession for a long period can face a threat to such title at anytime of the defendant's choice, who may emerge from nowhere, with mere denial of the plaintiffs title on his lip. And the defendant will be under no burden to prove his case, since the defendant in our legal system can recline on the comfort of the procedural law, and wait for the plaintiff to prove his title. And, in the process, he may count every shades of weakness in the plaintiffs case, the advantage of which the plaintiff does not have, since the law on burden of proof does not permit the plaintiff to rely on the weakness of the defendant's case.

¶39If fairness has to reign supreme in our processual jurisprudence, it is necessary to eliminate a seeming opportunity available to the defendant to steal an unfair procedural advantage over the plaintiff. It then becomes indispensable for Courts of facts to realise their responsibility, assert their role as fair arbiters within the bounds of available procedure, and ascertain if the denial of the plaintiff's title by the defendant is bonafide, or hollow and colourable.

¶40A full bench of this Court, in the case of Ram Jas And Others Vs. Surendra Nath and Another (Supra), considered the question referred to it i.e. "Whether Sub-section (2) of Section 90-A of the Evidence Act as amended by the U. P. Civil Laws (Reforms and Amendment) Act controls the operation of Section 90(1) and (2) of the Evidence Act as amended by the said U. P. Civil Laws (Reforms and Amendment) Act, 1954." and answered the same in paragraphs nos.14, 15 and 16, which are extracted here-in-below:-

¶14The presumptions under the Evidence Act are only the inferences which a logical and reasonable mind normally draws. Facts and circumstances (from) which certain inferences follow are indicated in various provisions of the Evidence Act running from Sections 79 to 90-A. As already seen the sections of the Evidence Act Lay down different circumstances in which a presumption is to be raised. Whenever the law permits the raising of a presumption the Court can by reason of Section 4 of the Evidence Act raise the presumption for purpose of proof of a fact. If the presumption is available in one section it can raise it under that section. If it is not available in one section and is available in another section, then the Court can raise presumption under that section. It all depends upon the circumstances available in the case as applicable to a particular document. Hence, even if the case falls under Section 90-A and sub-section (2) thereof is applicable and no presumption can be drawn under Section 90-A(1) it will not exclude the Court from drawing the presumption, if the circumstances permit it to be drawn, under any other provision of the Evidence Act including Section 90 of the Act. The presumption, if available under Section 90, can, therefore, be raised by the Court even after coming to the conclusion that a presumption under Section 90-A is not available.

¶15The presumptions available under Sections 90 and 90-A are also not similar. Section 90(2) permits the raising of the presumption in respect of the signature, handwriting, execution and attestation, while Section 90 permits a presumption only in respect of execution. Section 90 deals with documents which are more than 20 years old while Section 90-A places no such restriction and includes also documents from judicial record Neither of the two sections, therefore, can be said to be occupying a field which the other exclusively occupies. They deal with different fields and different circumstances and permit different types of presumptions to oe raised.

¶16For the reasons given above it is not possible to hold that Sub-section (2) of Section 90-A will override and nullify Section 90 if the document, though more than twenty years old, is the basis of the suit or the defence or is relied upon in the plaint or written statement. We are, therefore, of opinion that Om Prakash v. Bhagwan (AIR 1974 All 389) does not lay down the correct law.

¶41The defendant-appellant has taken a plea that Smt. Lalti Devi had no right to execute the sale deed and Chhote Lal was not his power of attorney holder, whereas it has not been disputed that the registered sale deed dated 31.10.1979 executed by Chhote Lal neither has been executed by him as power of attorney holder of Smt. Lalti Davi nor it is in regard to the land in dispute, the boundaries of which given in the said sale deed have also not been disputed. According to the boundaries given in the sale deed, the house of Om Prakash is on the east, house of Smt. Manno Devi on the west, agricultural field of Jagat Narian on the north and road railway station, Atariya on the south of village Atariya, Pargana-Manwa, Tehsil-Sidhauli, District-Sitapur. The correction deed of the said sale deed dated 31.10.1979 was executed by Chhote Lal on 30.08.1989 to the effect that the said sale deed has been executed by him as power of attorney holder of Smt. Lalti Devi and on his behalf also. Despite opportunity of rebuttal granted to the defendant-appellant, no rebuttal had been filed. Admittedly, the said sale deed and the correction deed have neither been challenged nor set-aside by any competent court of law till date.

¶42The first appellate court, after considering the pleadings, evidence and material on record found that as per the boundaries which have been given in the plaint, the house of Smt. Manno Devi is on the western side of the land in dispute, who had executed the sale deed of the land in dispute on 28.08.1970, which shows the house of Minmukira i.e. Manno Devi on the western side. The same boundaries are in sale deed dated 31.10.1979 in favour of the plaintiff-respondents. The boundaries given in the plaint have also not been denied or disputed by the defendant-appellant in the written statement. In evidence also the defendant-appellant has stated that the land in dispute is after his thatch on the eastern side of his house and the house of his brother Ram Sundar is adjacent to his house. Therefore, the admitted boundaries of the plaint are in accordance with the sale deeds.

¶43The first appellate court has recorded a finding that Laxman was a resident of Basantpur, who used to come to Manno Devi in the concerned village and the Devi Deen had come with him. The defendant-appellant has also not stated in his evidence that Manno Devi had any other house in the village. He has also admitted the relationship of Laxman and Devi Deen, from whom he claimed the right on land in dispute being his uncle. He also admitted that he has seen his grand mother, who had died in the year 1980, who used to live with his brother Ram Sundar. Ram Sundar is son of Nanhe. It is also admitted that Ram Sundar was residing in the house on the western side of the land in dispute, which has been partitioned and in one of the portion, the defendant-appellant Raja Ram son of Putai is residing and in the other Ram Sundar son of Nanhe. Therefore, it is also apparent that the grand mother of the defendant-appellant and wife of Laxman was residing on the western side of the land in dispute. He has also admitted that Devi Deen has died and his grand mother had died prior to Devi Deen. The defendant-appellant on the one hand shows his ignorance about Manno Devi but on the other hand though admits residence of his grand mother in the house on the western side in a portion of which he is residing but does not disclose her name, whereas admits she had died before the death of uncle of the defendant-appellant. The DW-3 and DW-4, who are aged about 80 years and 65 years respectively and of the same village have deposed that Smt. Manno Devi was the owner of the land in dispute and she had sold it to Babu Lal. DW-4 has also stated that the house on the western side of the land in dispute is of Manno Devi in which Raja Ram and Ram Sundar are living after division. The defendant-appellant has also admitted in his evidence the residence of Laxman, who was of Basantpur. He had three sons Devi Deen, Nanhe and Putai and had come to Atariya to Manno Devi. It is also proved from admission of the defendant-appellant that he and his uncle Devi Deen had sold their some land of Basantpur and also placed on record of the trial court copies of sale deeds.

¶44The first appellate court, after considering the pleadings, evidence and material on record has also recorded that the defendant-appellant has taken different stands at different places in regard to the land in dispute and also about the ownership of the land in dispute from his uncle and father. The first appellate court, after considering the pleadings, material and evidence on record has recorded a finding that the land in dispute and the house on the western side of the land in dispute was of the Manno Devi and not of Devi Deen or his brothers and if it would have been of Devi Deen then he must have challenged the sale deed executed by Smt. Manno Devi because the sale deed was executed by her in the year 1970 and Devi Deen had died in the year 1980.

¶45The first appellate court, after considering and scrutinizing the pleadings, evidence, material on record and also the commission report has recorded a finding of possession and ownership of the plaintiff-respondents on the land in dispute and also that if it would have been of the defendant-appellant and he would have been using the same, it would not have been left in the shape of Khandhar in the dilapidated condition.

¶46In view of above and considering the over all facts and circumstances of the case, this Court does not find any perversity, illegality or error in the findings recorded by the first appellate court on the basis of pleadings of the parties, evidence and material on record. The substantial question of law formulated by this Court is answered accordingly. This second appeal has been filed on misconceived and baseless grounds, which is liable to be dismissed.

¶47The second appeal is, accordingly, dismissed. No order as to costs. ........................................ ..........,.................(Rajnish Kumar, J.) Order Date :- 11.06.2024 Haseen U. High Court of Judicature at Allahabad, Lucknow Bench

AFR Court No. - 3 (Reserved) Case :- SECOND APPEAL No. - 135 of 1998 Appellant :- Raja Ram Respondent :- Ram Asrey Counsel for Appellant :- Nirmal Tewari,Ambika Prasad,Deepak Tewari,Deepak Tiwari Counsel for Respondent :- P.C. Agarwal,R.C. Gupta Hon'ble Rajnish Kumar,J. 1. Heard, Sri Ambika Prasad, learned counsel for the defendant- appellant and Sri Rajesh Tiwari, Advocate holding brief of Sri P.C. Agarwal, learned counsel for the plaintiff-respondents. 2. This second appeal has been filed for setting aside the judgment and decree dated 15.12.1997 passed by Judge, Small Causes, Sitapur in Civil Appeal No.186 of 1988; Jagdeo Singh and Others Vs. Raja Ram dismissing the Regular Suit No.174 of 1984; Ram Asrey and Others Vs. Raja Ram and for maintaining the judgment and decree of the trial court dated 31.10.1988. 3. The following substantial question of law has been formulated in this second appeal. "Whether the judgment passed by the first appellate court is perverse and illegal." 4. Learned counsel for the defendant-appellant submitted that no evidence could have been adduced in regard to the correction deed made during pendency of appeal and sale deed executed by Manno Devi in favour of Ram Chandra, minor son of Babu Lal and sale deed executed by him to Chhote Lal and Smt. Lalti Devi without amendment in the plaint and the same could not have been considered and no presumption also could have been drawn in regard to registered sale deed executed by Smt. Manno Devi and Ram Sundar in the years 1970 and 1973. He also submitted that the sale deed by Chhote Lal was not executed by him on his behalf and the correction deed executed by him could not have been considered in absence of pleadings. He further submitted that plaintiff-respondents appeared in evidence as PW-2 in place of PW-1 in violation of Order-18, Rule-3 (A) of Civil Procedure Code, 1908 (here-in-after referred as CPC) but the first appellate court has failed to consider it. He further submitted that the possession of defendant-appellant was proved and the evidence of PW-1 and PW-2 was contradictory in regard to plinth and wall, which is against the plaintiff-respondents, whose possession was not proved on account of thatch of Raja Ram in east and west of his house and the land in dispute after his thatch on the east. He further submitted that the suit for injunction without prayer for declaration was not maintainable but the first appellate court has failed to consider the same and allowed the appeal without considering the pleadings, evidence and material on record, therefore the pleadings recorded by the first appellate court are perverse and illegal, thus not sustainable in the eyes of law and liable to be set-aside. 5. Learned counsel for the defendant-appellant relied on Kalyan Singh Chouhan Vs. C.P. Joshi; (2011) 11 SCC 786, Biraji @ Brijraji and Another and Another Vs. Surya Pratap and Others; (2020) 10 SCC 729, Khudawand Haiyal Qaiyoom Vs. Sabir; 2007 68 ALR 210, Ayyasami Gounder and Others Vs. T.S. Palanisami Gounder; AIR 1996 Madras 237, Marappa Gounder and Others. Vs. Sellappa Gounder And Others; AIR 1985 Madras 183, A. Andisamy Chettiar Vs. A. Subburaj Chettiar; (2015) 17 SCC 713 and Srinivas Raghavendrarao Desai (D) by LRS. Vs. V. Kumar Vamanrao @ Alok and Others; 2024 SCC OnLine SC 226. 6. Learned counsel for the plaintiff-respondents submitted that the suit for permanent injunction was rightly and in accordance with law was filed and there was no need of prayer for declaration. There was no substantial denial of title and there was only a colourable denial of title. The objection in regard to prayer for declaration had not been taken before the court's below. The sale deed in question on the basis of which the plaintiff-respondents are owner have also not been challenged and all the sale deeds are intact. Even otherwise the earlier sale deeds of the land in dispute have also not been challenged. He further submitted that no perversity or illegality in a