Learned counsel for respondent No.1-plaintiff, however, contended that legal heirs of the defendant did not even raise any plea in the written statement that it was loan transaction and, therefore, no such plea can be raised now nor any evidence in support of this plea can be looked into. Reliance in support of this contention have been placed on judgment of Hon'ble Privy Council in the case of Siddik Mahomed Shah versus Mt. Saran and others, AIR 1930 Privy Council 57(1) , wherein it was held that no evidence can be looked into on a plea not raised in defence. Reference has also been made to judgment of Hon'ble Supreme Court in the case of Bhagat Singh and others versus Jaswant Singh, AIR 1966 Supreme Court 1861 , wherein it was held that the defendant must specifically allege ancestral nature of the property and his relationship and mere framing of issues and leading of evidence is not sufficient. Reliance has also been placed on judgment of Hon'ble Supreme Court in the case of Siddu Venkappa Devadiga versus Smt. Rangu S. Devadiga and others, AIR 1977 Supreme Court 890 , wherein it was held that appellate court cannot make out a new case which was not pleaded by the party.
