Allowed

Motilal Agrawal v. Shiv Kumar Agrawal and Ors.

Chhattisgarh HC6 Feb 2020SA/441/2009

Case brief

AI extract

What is this about?

The High Court set aside a decree in a property dispute granting initiation of revenue proceedings under the Chhattisgarh Land Revenue Code because no such relief was prayed for in the plaint. Relying on Bachhaj Nahar, the Court held that civil relief must match pleadings and dismissed the suit.

What did the court decide?

The decree for initiation of proceedings under Section 170-B of the Code is set aside and the plaintiffs' suit is dismissed in toto.

Motilal Agrawal Vs Shiv Kumar Agrawal and Ors. — Partition | Chhattisgarh HC (2020)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Second Appeal No.441 of 2009

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Motilal Agrawal, S/o. Late Sagarmal, aged about 53
years, R/o. Nagar Ramanujganj, Ward No.9, Tahsil Pal,
District Surguja (CG)

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---- Appellant/Defendant No.1

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Versus

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1. Shiv Kumar Agrawal, S/o. Late Sagarmal Agrawal, aged about 48 years,

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2. Rakesh Agrawal, S/o. Late Sagarmal Agrawal, Aged about 30 years,

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3. Sankar Agrawal, S/o. Late Sagarmal Agrawal, aged about 38 years,

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4. Umesh Agrawal, S/o. Late Sagarmal Agrawal, Aged about 36 years,

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5. Mrs. Fulwanti Devi Wd/o. Late Sagarmal Agrawal, Aged about 70 years,

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All above R/o. Nagar Ramanujganj, Ward No.9, Tahsil
Pal, District Surguja (CG)

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---- Plaintiffs

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6. Smt. Geeta Devi D/o. Late Sagarmal Agrawal, W/o. Laxminarayan Agrawal, aged about 52 years, R/o. Tata Nagar, Jamshedpur (Mango Chowk), District Sinhmbhu, Jharkhand

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7. Smt.Meena Devi, D/o. Late Sagarmal, W/o. Sitaram, aged about 42 years, R/o. Dehri, Onson, Neelkothi, District Rohtas (Bihar)

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8. Smt. Usha Devi, D/o. Late Sagarmal, W/o. Ramesh Gupta, aged about 40 years, R/o. Bandar Bagicha, Rajshtan Colony, Patna, Bihar

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9. Ashok Kumar Agrawal, S/o. Late Sagarmal, aged about 45 years, R/o. Nagar Ramanujganj, District Surguja (CG)

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10. State of Chhattisgarh, Through Collector, Surguja Ambikapur, District Surguja (CG)

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---- Respondents/Defendants

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For Appellant/Defendant No.1:Mr.Manoj Paranjape, Advocate
For Res.No.1 to 5/Plaintiffs:Mr.R.N.Pusty, Advocate
For Res.No.6 to 9 :Mr.Ram Kumar Tiwari, Advocate
For Respondent No.10/State :Mr.Ravi Bhagat, Dy.G.A. and
 Mr.S.K.Agrawal, P.L.

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Hon'ble Shri Justice Sanjay K. Agrawal

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Judgment on Board

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06.02.2020

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1. The substantial question of law involved, formulated and to be answered in this second appeal preferred by the appellant/defendant No.1 is as under:-

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“Whether in view of the findings recorded by the lower appellate Court in paragraphs 16 and 19 of its judgment regarding nonmaintainability of the suit on account of non-joinder and mis-joinder of necessary parties, the appellate Court was justified in maintaining the judgment and decree passed by the trial Court ?”

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[For the sake of convenience, parties would be
referred hereinafter as per their status shown and
ranking given in the suit before the trial Court].

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2. The suit property was originally held by one Pariman Gond. He is said to have executed a Will in favour of defendant No.1 on 24.1.1991. The plaintiffs and the defendants are brothers and sisters. Five plaintiffs filed a suit that they are joint owners of the suit property and defendant No.1 be restrained from using the property exclusively.

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3. Defendant No.1 filed his written statement and denied the averments made in the plaint stating inter-alia

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that the suit property was earlier held by Alimana
Uraon who sold the same to one Parbhan Gond on
20.12.1978 and Pariman Gond had executed a Will in his
favour on 24.1.1991 and thereby he became owner of the
suit property.

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4. The trial Court upon appreciation of oral and
documentary evidence available on record, by its
judgment and decree dated 19.10.2005, partly decreed
the suit holding that the plaintiffs and defendants
No.1 to 5 are joint owners of the suit property, but
has granted conditional decree holding that decree
will be applicable if the proceedings under Section
170-B of the Chhattisgarh Land Revenue Code, 1959
(hereinafter called as 'the Code') are not initiated
on or before 5.3.2006 by legal representatives of
Pariman Gond, which was challenged by defendant No.1
before the first appellate Court, the said appeal
Court partly allowed the appeal holding that the suit
was not maintainable for non-joinder of necessary
party, but has maintained the decree with regard to
initiation of proceedings under Section 170-B of the
Code by legal representatives of Pariman Gond.
Questioning the judgment and decree of the first
appellate Court, this second appeal under Section 100
of the CPC has been filed by the appellant/defendant

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No.1, in which substantial question of law has been
formulated, which has been set-out in the opening
paragraph of this judgment.

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5. Mr.Manoj Paranjape, learned counsel for the
appellant/defendant No.1, would submit that the first
appellate Court is absolutely unjustified in
maintaining the decree with regard to initiation of
proceedings under Section 170-B of the Code by legal
representatives of Pariman Gond as substantive decree
has already been set aside by the first appellate
Court holding the suit to be not maintainable and no
relief was sought by the plaintiffs with regard to
legal representatives of Pariman Gond, therefore, the
first appellate Court is absolutely unjustified in
granting relief without there being any prayer/relief
made by legal representatives of Pariman Gond in the
plaint, as such, the judgment and decree of the first
appellate Court deserves to be set aside.

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6. On the other hand, Mr.R.N.Pusty, learned counsel for
respondents No.1 to 5/plaintiffs, would support the
judgment and decree of the first appellate Court.

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7. I have heard learned counsel for the parties,
considered their submissions made hereinabove and also
went through the records with utmost circumspection.

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8. The plaintiffs filed a suit only for declaration of

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title that they are joint owners and for permanent
injunction against defendant No.1. Admittedly, no
relief was sought either by the plaintiffs or legal
representatives of Pariman Gond for initiation of
proceedings under Section 170-B of the Code, yet it
was granted by the trial Court. In appeal preferred by
defendant No.1 though the first appellate Court set
aside substantive decree against defendant No.1 for
declaration of title and for permanent injunction, but
has maintained the decree for initiation of
proceedings under Section 170-B of the Code by legal
representatives of Pariman Gond.

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9. At this stage, it would be appropriate to notice pertinent decision of the Supreme Court in the matter of Bachhaj Nahar v. Nilima Mandal and another 1, in which Their Lordships of the Supreme Court have held that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. It was observed as under:-

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“23. It is fundamental that in a civil
suit, relief to be granted can be only with
reference to the prayers made in the
pleadings. That apart, in civil suits,
grant of relief is circumscribed by various
factors like court fee, limitation, parties
to the suits, as also grounds barring
relief, like res judicata, estoppel,
acquiescence, non-joinder of causes of
action or parties etc., which require

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1 (2008) 17 SCC 491

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pleading and proof. Therefore, it would be
hazardous to hold that in a civil suit
whatever be the relief that is prayed, the
court can on examination of facts grant any
relief as it thinks fit. In a suit for
recovery of rupees one lakh, the court
cannot grant a decree for rupees ten lakhs.
In a suit for recovery possession of
property `A', court cannot grant possession
of property `B'. In a suit praying for
permanent injunction, court grant a relief
ofdeclarationorpossession.The
jurisdiction to grant relief in a civil
suit necessarily depends on the pleadings,
prayer, court fee paid, evidence let in,
etc.”

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10. In the light of principle of law laid down by the

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Supreme Court in Bachhaj Nahar(supra), if plaint
averments are examined, it would appear that no relief
was sought either by the plaintiffs or by legal
representatives of Pariman Gond for initiation of
proceedings under Section 170-B of the Code, yet the
trial Court relying upon the fact that defendant No.1
claimed Will of Pariman Gond in his favour though
that was not found established, yet granted decree,

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which the first appellate Court has maintained.

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11. Once no relief has been claimed by the plaintiffs or by legal representatives of Pariman Gond with regard to initiation of proceedings under Section 170-B of the Code and even legal representatives of Pariman Gond were not party to suit and no issue was framed with regard to that, therefore, altogether new

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relief which was not sought could not have been
granted by the trial Court and could not have been
affirmed by the first appellate Court. Therefore, it
cannot be re-affirmed and accordingly, it is set-aside
and the plaintiffs' suit stand dismissed in toto. The
substantial question of law is answered in favour of
defendant No.1 and against the plaintiffs.

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12.The second appeal is allowed to the extent
indicated hereinabove leaving the parties to bear
their own cost(s).

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13.Decree be drawn-up accordingly.

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Sd/-

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 (Sanjay K.Agrawal)
 Judge

Motilal Agrawal v. Shiv Kumar Agrawal and Ors.

Case brief

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Motilal Agrawal v. Shiv Kumar Agrawal and Ors.

Case brief

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