Abhayram Vs Kirathram @ Tirathram

1 - Kirathram @ Tirathram S/o Shri Late Revaram Chandrakar, Aged About 69 Years R/o Village And Post Tarra, Tahsil Patan, District Durg Chhattisgarh. , Chhattisgarh

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2 - State Of Chhattisgarh, Through Collector, Durg, District Durg Chhattisgarh., District : Durg, Chhattisgarh

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... Respondents

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(Cause Title taken from Case Information System)

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For Appellant	: Mr. Arvind Shrivastava, Advocate
For Respondent No.1	: Mr. Khulesh Sahu, Advocate
For Respondent No.2/State	: Mr. Ajay Kumrari, Panel Lawyer

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Hon'ble Shri Ravindra Kumar Agrawal, Judge

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Judgment on Board

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11/12/2025

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VED PRAKASH DEWANGAN Digitally signed by VED PRAKASH DEWANGAN Date: 2026.02.19 19:18:32 +0530

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This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred by the appellant assailing the

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judgment and decree dated 25.07.2017 passed by the Court of the 5th Additional District Judge, Durg, in Civil Appeal No. 16A/2013, whereby the first appellate Court dismissed the appeal and affirmed the judgment and decree dated 26.03.2013 passed by the Court of Civil Judge Class-I, Patan, District Durg, in Civil Suit No. 135A/2011 in favour of the plaintiff/respondent No. 1, Kirtharam @ Teertharam. The present appeal has been filed invoking the jurisdiction of this Court on the ground that the impugned judgments allegedly give rise to substantial questions of law within the meaning of Section 100 of the Code of Civil Procedure.

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The second appeal is admitted on 11.01.2018 on the following substantial questions of law:-

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“1. Whether, the Court belows have erred in considering that the unregistered portion (Ex.D-4) is a manipulated document and therefore, the possession of defendant no.1 over the said property is illegal?

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2. Whether, the Court belows have committed error of law in granting the relief of declaration of title of plaintiff on disputed property without there being any prayer of plaintiff for the same and that too without valuation and Court fees for the purpose?”

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The facts, in brief, as emerging from the record are that respondent No. 1/plaintiff, Kirtharam @ Teertharam, instituted Civil Suit No. 135A/2011 before the Court of Civil Judge Class-I, Patan, seeking possession, permanent injunction, and mesne profits in respect of the suit agricultural land situated at Village Tarra, Tahsil Patan, District Durg. The case of the plaintiff was that the suit property was his selfacquired property, purchased through a registered sale deed dated 10.05.1991, and that the same was never part of the joint Hindu family property. It was pleaded that despite having no right, title or interest therein, the defendant/appellant Abhayram attempted to interfere with the plaintiff’s peaceful possession and further set up a claim on the basis of an alleged partition deed dated 31.05.1992. The plaintiff specifically denied that the suit land formed part of any family partition and asserted that the alleged partition document did not include the suit property in its original form.

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*******The defendant contested the suit contending that the property was joint family property and had fallen to his share in a family partition, and therefore he was in lawful possession. On the basis of the pleadings, the trial Court framed issues and, upon appreciation of oral and documentary evidence, held that the plaintiff had established his title through the registered sale deed and revenue records, and further found that the alleged partition deed relied upon by the defendant did not confer any right over the suit property. Consequently, the suit was decreed in favour of the plaintiff. The first appellate Court, on re-appreciation of the entire evidence, affirmed

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the findings recorded by the trial Court and dismissed the appeal, giving rise to the present second appeal.

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Learned counsel appearing for the appellant/defendant would submit that the impugned judgments and decrees passed by both the Courts below are contrary to law and the evidence available on record and, therefore, warrant interference under Section 100 of the Code of Civil Procedure, 1908. It is contended that the Courts below have failed to properly appreciate the nature and character of the suit property and have erroneously recorded concurrent findings without correctly applying the settled principles governing joint family property.

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*******It is further submitted that though the plaintiff relied upon a registered sale deed dated 10.05.1991, the Courts below did not examine the surrounding circumstances under which the property was purchased and whether the consideration amount had, in fact, emanated from joint family nucleus. According to learned counsel, the existence of ancestral agricultural lands and joint family income was not disputed, and therefore, the presumption ought to have been drawn that the property acquired during subsistence of the joint family was for the benefit of the family unless proved otherwise. The burden, it is argued, was wrongly shifted upon the defendant.

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*******Learned counsel would also contend that the Courts below committed serious error in discarding the partition deed dated 31.05.1992. It is argued that the document was acted upon by the parties and possession had been delivered accordingly. Minor

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discrepancies in ink or handwriting could not have been made the sole basis to discard a family arrangement, particularly when family settlements are required to be viewed with liberal consideration in order to uphold peace and harmony in the family. The finding of alleged interpolation, it is submitted, is based on conjectures and not supported by expert evidence.

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*******It is further argued that the first appellate Court, though being the final Court on facts, failed to independently and exhaustively reappreciate the entire evidence as mandated under law and merely concurred with the findings of the trial Court without proper analysis. The judgment, according to learned counsel, does not demonstrate conscious application of mind to the material evidence and the pleadings of the parties.

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*******Learned counsel would also submit that the issue relating to possession and long-standing cultivation by the defendant was not properly considered. It is contended that revenue entries and possession documents produced by the defendant were brushed aside without adequate reasoning, thereby resulting in miscarriage of justice.

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*******On these premises, it is urged that the findings recorded by the Courts below are perverse, being based on misreading of evidence and incorrect application of legal principles governing joint family property and burden of proof. It is thus prayed that the substantial questions of law arising in the present appeal be answered in favour

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of the appellant, the impugned judgments and decrees be set aside, and the suit of the plaintiff be dismissed.

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Learned counsel appearing for the respondent No.1 would submit that, the revenue entries produced before the Courts below were prepared in discharge of official duties by competent revenue authorities and carry a presumption of correctness unless rebutted by cogent evidence. The Courts below have appreciated the documentary evidence in accordance with law and have not committed any jurisdictional error.

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*******Learned counsel would also contend that the concurrent findings recorded by the trial Court and affirmed by the first appellate Court are essentially findings of fact based upon proper appreciation of oral and documentary evidence. No substantial question of law arises for consideration in the present second appeal under Section 100 of the Code of Civil Procedure, 1908.

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*******On these grounds, it is submitted that the present second appeal, being devoid of merit and not involving any substantial question of law, deserves to be dismissed.

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Learned counsel appearing for respondent No. 2/State would submit at the outset that the State is only a formal and pro forma party in the present proceedings, as the lis primarily concerns inter se rights between the plaintiff and the defendant with respect to the suit agricultural land. It is contended that the State has no independent claim over the property in dispute and is represented only because

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the revenue records and mutation entries fall within the administrative domain of the State authorities.

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I have heard learned counsel for the parties and perused the records of the trial Court as well as First Appellate Court.

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PW-1, the plaintiff himself, entered the witness box and reiterated the averments made in the plaint. In his examination-in-chief, he deposed that the suit land was purchased by him through a registered sale deed dated 10.05.1991 and that the same was his self-acquired property. He denied that the suit land was part of joint family property or that it was ever included in the alleged partition dated 31.05.1992. He further stated that the defendant had no right, title or interest over the suit land and had illegally interfered with his possession.

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*******However, a careful scrutiny of his cross-examination reveals material aspects which assume significance. Firstly, PW-1 admitted the existence of ancestral agricultural lands and joint family status at the relevant time. He did not clearly establish that the consideration amount for the sale deed was derived exclusively from his independent income. No documentary proof was produced to demonstrate his independent financial capacity at the time of purchase. The burden to establish self-acquisition, particularly when joint family nucleus is alleged, required clear and cogent evidence, which appears lacking.

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*******Secondly, though PW-1 asserted exclusive title, the pleadings do not contain a specific and categorical prayer for declaration of title.

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His testimony, therefore, went beyond the scope of the relief expressly sought in the plaint. The Courts below relied upon his statement to grant declaratory relief, even though such relief was not explicitly claimed.

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*******Thirdly, PW-1 admitted that a partition deed dated 31.05.1992 existed between the family members, though he disputed inclusion of the suit land therein. The existence of such document and the family arrangement itself create a serious dispute regarding title, thereby casting a cloud over his claim. Despite such dispute, PW-1 did not amend the plaint to seek a comprehensive declaratory relief.

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*******Thus, while PW-1 asserted ownership, his testimony, when read in entirety, indicates that the title was seriously contested and the issue could not have been conclusively determined in a mere suit for injunction.

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DW-1 (defendant/appellant) entered the witness box and deposed that the suit property formed part of joint family property and that under the family partition dated 31.05.1992, the same had fallen to his share. He stated that he was in possession pursuant to such partition and had been cultivating the land.

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*******In cross-examination, DW-1 was confronted with the registered sale deed standing in the name of the plaintiff. He did not dispute the execution of the sale deed but contended that the purchase was made out of joint family funds. His stand consistently remained that the property was not the exclusive self-acquisition of the plaintiff.

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*******The Courts below discarded the defence primarily on the ground of alleged interpolation in the partition deed. However, even assuming that the partition document suffered from discrepancies, the consistent plea of the defendant disputing the plaintiff’s exclusive title remained intact. His statement unequivocally shows that the title was in serious contest.

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*******It is pertinent to note that once DW-1 specifically denied the exclusive ownership of the plaintiff and asserted rival title, the dispute ceased to be a simple matter of possession and squarely became a title dispute. In such a situation, as laid down in Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594 a mere suit for injunction was not maintainable without seeking declaration of title.

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The combined reading of the testimonies of PW-1 and DW-1 clearly establishes, the existence of joint family background, a registered sale deed in favour of the plaintiff, a specific and categorical denial of exclusive title by the defendant, rival claims over the same property. Therefore, the title of the plaintiff was not admitted but was directly put in issue. The Courts below erred in treating the matter as if it were a simple injunction suit where title was incidental. On the contrary, the evidence of both PW-1 and DW-1 demonstrates that the primary controversy was one of title.

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*******In view of such evidence, the suit ought to have been framed and adjudicated as a comprehensive suit for declaration and consequential relief. The failure to do so, coupled with the grant of

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declaratory relief not specifically prayed for, vitiates the impugned judgments.

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Having heard learned counsel for the appellant and learned counsel for respondent No. 2/State, and upon perusal of the entire record including the pleadings, issues framed, oral and documentary evidence, and the judgments rendered by both the Courts below, this Court proceeds to examine whether the impugned judgments suffer from any substantial error of law warranting interference under Section 100 of the Code of Civil Procedure, 1908.

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*******At the outset, it is evident from the plaint that the plaintiff primarily sought relief of permanent injunction and ancillary reliefs. A careful reading of the plaint demonstrates that no specific and categorical relief of declaration of title was claimed in clear terms as mandated under Section 34 of the Specific Relief Act, 1963. Despite the absence of a specific prayer seeking declaration of title, the learned trial Court proceeded to grant a decree declaring the plaintiff’s title over the suit property. The first appellate Court affirmed the said decree without addressing this fundamental legal infirmity.

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It is a settled principle of civil jurisprudence that a Court cannot grant a relief which has not been specifically claimed in the plaint. The pleadings constitute the foundation of the case, and relief must flow strictly from the pleadings. In this regard, the Hon’ble Supreme Court in Trojan & Co. Ltd. v. Rm. N.N. Nagappa Chettiar, AIR 1953 SC 235 , held that no amount of evidence can be looked into upon a plea

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which was never put forward in the pleadings, and that a Court cannot grant a relief not founded on pleadings. Similarly, in Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491 , the Hon’ble Supreme Court categorically held that a Court cannot grant a relief not specifically prayed for, nor can it make out a new case for the parties.

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In the present case, once the plaintiff did not seek a declaratory relief in explicit terms, the learned trial Court exceeded its jurisdiction in granting such declaration. The decree, therefore, travels beyond the pleadings and is vitiated in law.

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*******Further, it is not in dispute that the defendant had specifically contested the title of the plaintiff and claimed independent rights over the suit property on the basis of partition. Thus, the plaintiff’s title was directly and substantially in dispute and stood clouded. In such circumstances, a mere suit for injunction was not maintainable.

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The legal position on this aspect stands authoritatively settled by the Hon’ble Supreme Court in Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594 , wherein it was held that:

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(a) Where the plaintiff’s title is not in dispute and he is in lawful possession, a suit for injunction simpliciter is maintainable.

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(b) Where the title is disputed or under a cloud, the plaintiff must seek declaration of title and consequential relief of injunction.

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(c) Where the plaintiff is out of possession and title is disputed, he must seek declaration and recovery of possession.

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*******In the present case, as the defendant had specifically disputed the plaintiff’s title and set up a competing claim, the plaintiff was bound to institute a comprehensive suit seeking declaration of his title and consequential relief. The failure to seek such declaratory relief strikes at the root of maintainability of the suit.

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The Courts below failed to apply the ratio laid down in Anathula Sudhakar (supra) and instead proceeded to adjudicate and declare title in a suit which, in substance, was not framed as one for declaration. This constitutes a substantial error of law.

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*******Moreover, the trial Court framed issues relating to ownership and proceeded to record findings thereon, but such adjudication without proper prayer and valuation for declaratory relief is procedurally impermissible. The decree, therefore, is legally unsustainable.

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In view of the settled legal principles laid down in Trojan & Co. Ltd. (supra), Bachhaj Nahar (supra), and Anathula Sudhakar (supra), this Court is of the considered opinion that the impugned judgments suffer from substantial illegality in granting relief not prayed for and in entertaining a suit for injunction despite the plaintiff’s title being under serious cloud.

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So far as Substantial Question of Law No.1 is concerned, namely, “Whether the Courts below have erred in considering that the unregistered portion (Ex.D-4) is a manipulated document and therefore the possession of defendant No.1 over the said property is illegal?” , it is evident from the record that both the Courts below have concurrently held the document Ex.D-4 to be unreliable on the ground of interpolation and suspicious circumstances. The trial Court, upon comparison of the document and appreciation of oral evidence, recorded a finding that the portion relating to inclusion of the suit land appeared to have been subsequently inserted and, therefore, did not inspire confidence. The first appellate Court affirmed the said finding. Ordinarily, such a finding regarding alleged interpolation or manipulation of a document is essentially a finding of fact based upon appreciation of evidence, and in a Second Appeal under Section 100 of the Code of Civil Procedure, 1908, this Court would not interfere unless the finding is shown to be perverse, based on no evidence, or founded upon misapplication of settled principles governing admissibility and proof of documents.

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******* However, in the present case, in view of the determination of Substantial Question of Law No.2 holding that the suit itself was not maintainable in the absence of a specific prayer for declaration of title and proper valuation, and further in light of the principle laid down by the Hon’ble Supreme Court in Anathula Sudhakar v. P. Buchi Reddy that where title is under cloud a comprehensive declaratory suit is necessary, the adjudication on the validity or otherwise of Ex.D-

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4 would be premature and academic. Since the suit has been dismissed on the foundational ground of maintainability, any conclusive pronouncement on the genuineness, admissibility, or evidentiary value of the partition document may prejudice the parties in any properly framed future proceedings. Accordingly, Substantial Question of Law No.1 is left open to be adjudicated, if required, in appropriate proceedings instituted in accordance with law, without this judgment being construed as expressing any final opinion on the merits of Ex.D-4.

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Accordingly, the substantial question of law No.2 is answered in favour of the appellant. The present Second Appeal No. 588 of 2017 succeeds and is hereby allowed . The judgment and decree dated 25.07.2017 passed by the learned 5th Additional District Judge, Durg, in Civil Appeal No. 16A/2013, affirming the judgment and decree dated 26.03.2013 passed by the Civil Judge Class-I, Patan, in Civil Suit No. 135A/2011, are hereby set aside . Consequently, Civil Suit No. 135A/2011 filed by the plaintiff/respondent No. 1 stands dismissed .

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In the facts and circumstances of the case, there shall be no order as to costs.

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A decree be drawn accordingly.

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Sd/- (Ravindra Kumar Agrawal) Judge

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ved

Abhayram v. Kirathram @ Tirathram

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Abhayram v. Kirathram @ Tirathram

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