oral evidence in the absence of the pleadings has to be ignored bombay HC

Bombay High Court
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPELLATE SIDE, APPELLATE JURISDICTION
SECOND APPEAL NO.: 605 OF 2005

1. Laxuman S/o Dadarao Bodake,
Age: 75 yrs., Occu.: Agriculture,
2. Dhanraj S/o Laxumanrao Bodke,
Age: 34 yrs., Occu.: Agri.,
3. Yuvraj S/o Laxumanrao Bodke,
Age: 32 yrs., Occu.: Agri.,
4. Mahesh S/o Laxumanrao Bodke,
Age: 30 yrs., Occu.: Agri.,
All R/o: Dhangarwadi, U/V
Jawalga, Tq. Udgir, at present
Deoni, Dist. Latur. … APPELLANTS
[ORI.DEFTS.NOS.
1, 4 TO 6]
VERSUS
1. Vithal S/o Dadarao Bodake,
Age: 60 yrs., Occ.: Agri.,
R/o Dhangarwadi, U/V Jawalga,
Tq. Udgir, at present Deoni,
Dist. Latur.
2. Bhanudas S/o Dadarao Bodake,
Age: 55 yrs., Occu.: Agri.,
R/o Dhangarwadi, U/V Jawalga,
Tq. Udgir, Dist. Latur.
3. Gangabai W/o Dadarao Bodke,
DIED
4. Sonabai W/o Sukaram Tugave,
Age: 72 yrs., Occu.: H.H.,
R/o Siroor, Tq. Siroor,
Dist. Latur. … RESPONDENTS
[NO.1 ORIG. PLAINTIFF
NO.2,3 & 4 FOUR DEFT.
NOS.2, 3 AND 7]
Mr. S. V. Chillarge, Advocate i/b Mr. P. G.
Rodge, Advocate for the Appellants.
Mr. V. D. Patnoorkar, Advocate for the
Respondent No.1.

CORAM: S. B. DESHMUKH, J.
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DATED: 4th SEPTEMBER, 2008.
ORAL JUDGMENT:
1. Heard learned counsel Mr. Chillarge,
instructed by Mr. P.G.Rodage, who appears for the
Appellants and Mr. V.D.Patnoorkar, who appears for
the Respondent NO.1.
2. This second appeal is filed by the
defendant Nos.1, 4 to 6in Regular Civil Suit No.352
of 1994. Parties to this second appeal,
hereinafter, are referred to their status as
plaintiff and respective defendants in the suit.
The suit was filed on 19th September, 1994. The
plaintiff had sought partition of agricultural land
i.e. Survey No.114/2, admeasuring 00 Hectare 63
Ares, Survey No.128/2, situated at village
Kauthala, Taluka Udgir, district Latur. The trial
Court, after hearing the parties and considering
the evidence, adduced by the parties, decreed the
suit with costs. It was declared that plaintiff
and defendant No.2 have 1/3rd share, each, in the
suit land. The defendant No.1 and defendant Nos.4
to 6 were declared having 1/12th share in the suit
property. This judgment and decree was passed by
the trial Court on 29th April, 2004. This judgment
and decree was challenged by the aggrieved
defendant Nos.1 to 4 and 6. The defendant No.7
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accepted the verdict of the trial Court. The
defendant No.3 Gangubai died during the pendency of
the suit. There is no dispute regarding
relationship between the parties.
3. The plaintiff, in short, had pleaded in
the suit, that Dadarao was the primogenitor of the
parties. Gangubai was his wife. Dadarao and
Gangubai were having three sons viz. Vithal
(plaintiff), Laxman (defendant No.1), Bhanudas
(defendant No.2) and a daughter Sonabai (defendant
No.7). It is not in dispute that defendant No.4
Dhanraj, No.5 Yuvaraj and NO.6 Mahesh are sons of
defendant No.1 Laxman. It is alleged by the
plaintiff that plaintiff and defendant Nos.1 and 2
are separate in mess and residence. Defendant
Nos.1, 4, 5 and 6 are joint. Dadarao, father of
the plaintiff and defendant Nos.1 and 2, died
somewhere in the year 1979. Partition regarding
joint Hindu family properties amongst plaintiff,
defendant No.1 and 2 had taken place during the
life time of their father Dadarao, somewhere in the
year 1976. Partitioned properties are ancestral
properties; mode of partition was oral. After the
partition, parties started separate cultivation and
possession of their respective shares; entries
were taken in the record of rights of the
agricultural lands. Land to the tune of 4 Hectare
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30 Ares from survey No.13/1, 4 Hectares 29 Ares
from Survey No.127/2 and 4 Hectare 29 Ares from
Survey No.127/3 are the lands situated at village
Jawalga whereas land to the tune of 2 Hectares 86
Ares from Survey No.163/3, 00 Hectares 63 Ares from
Survey No.128/2 and 5 Hectares 91 Ares from Survey
No.114/2 are the lands situated at village
Kauthala. Land Survey No.127/1, to the extent of 4
Acres 30 Ares, and land to the tune of 00 Hectares
95 Ares from Survey No.164/3 was allotted to the
share of defendant No.1 Laxman. From land Survey
No.127/3 area to the extent of 4 Hectares 59 Ares
was allotted to defendant No.2. Thus, partition
amongst the parties has been detailed by the
plaintiff in the pleading. There is a dispute
regarding allotment of land Survey No.164/3 amongst
the parties, but, then, the said land indisputably
is not the subject matter of the present suit. It
is stated by the plaintiff, in the suit itself,
that he is likely to file separate suit/ likely to
exhaust separate remedy regarding land survey
No.164/3. Suffice to state that land Survey
No.164/3 is not the subject matter of the suit, not
considered by the trial Court and the first
Appellate Court. It is further alleged by the
plaintiff that his father Dadarao kept 5 Hectares
61 Ares land from Survey No.114/2 and 00 Hectare 63
Ares land from survey No.128/2 for the livelihood
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and maintenance of Dadarao himself and defendant
No.3 Gangabai, who at the relevant time, was alive.
it is also alleged by the plaintiff that it was
resolved between the parties that said land should
be divided in between plaintiff and his brothers,
after demise of their father Dadarao. It is
further alleged that defendant No.1, after the
demise of Dadarao, sought mutation entry regarding
suit lands in his name as manager of the family.
Plaintiff was not aware regarding certification of
the mutation since he was incarcerated. It is also
alleged by the plaintiff that land survey No.114/2
with respective boundaries and land survey No.128/2
admeasuring 00 Hectare 63 Ares with respective
boundaries are the subject matter of the suit and
were kept joint for the maintenance of Dadarao and
deceased defendant No.3 Gangabai. After the demise
of his father, plaintiff is cultivating these
lands. Mutation entry sought by the defendant No.1
is in the name of defendant Nos.4 to 6. Defendant
No.1 is trying to grab the property. Plaintiff
claims 1/3rd share in the suit properties. On 30th
July, 1994 defendant No.1 lodged report with
Deovani Police against the plaintiff on 18th
August, 1994. Defendant refused to partition the
suit lands and according to the plaintiff that was
the cause of action for coming to the Court for
partition by filing this suit.
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4. Defendant Nos.1, 4, 5 and 6 have filed
their written statement Exhibit-19. According to
them, land Survey No.164/3 is not the ancestral
property (this land is also not the subject matter
of the suit). Defendants have denied that land
Survey No.114/2 and 128/2 i.e. the suit properties
were kept for maintenance of deceased Dadarao and
deceased defendant No.3 Gangabai. They have also
denied the agreement that after the demise of
Dadarao, the suit properties to be partitioned
amongst the plaintiff and defendant Nos.1 and 2.
It is denied by them that defendant No.1, in the
capacity of manager of the family, got sanctioned
mutation in the name of defendant Nos.4 to 6. It
is pleaded by the defendants that the joint family
of the parties was having agricultural lands and
houses at village Dhangarwadi and Kawathala as well
as at village Jawalga; family was owning some
agricultural lands. Land Survey No.114/2 and 128/2
of village Jawalga were mortgaged with money lender
Mr. Kotalwar for Rs.10,000/-. Family was indebted
to cooperative bank and revenue department.
Plaintiff and defendant No.2 have refused to make
the payment of debt of lands and had also refused
to accept the share in the said land. The suit
lands/ properties were thus allotted to the share
of defendant No.1 along with other properties
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allotted to his share i.e. land survey Nos.127 and
164/3. According to the pleading of these
defendants, the defendant No.1 has developed the
suit land, dug the bore wells and converted
dry-crop land to irrigated land. The suit filed by
the plaintiff is false. Defendant Nos. 1 to 4
have partitioned the suit properties amongst
themselves. According to them, there was an
agreement between plaintiff himself and defendant
Nos.2 and 3 that defendant No.1 should make payment
of Rs.100/- per month for maintenance of the
parents i.e. Dadarao and Gangabai.
5. Defendant No.2 had filed written
statement Exhibit-40. He had admitted the plaint,
however, neither prayed for decree the suit nor
prayed for dismissal. Defendant No.3 Gangabai had
not filed written statement and subsequently died
also during the pendency of the suit. During the
pendency of the suit, defendant Nos.1 and 2 have
arrived at compromise vide Exhibt-44 and have
prayed for dismissal of the suit. The Court, at
the relevant time, had passed an order on the terms
of compromise Exhibit-44 that it will be taken into
consideration at the time of the final judgment in
the suit.
6. The Court at the first instance,
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considering the rival pleadings, had framed about
three issues. Issue No.1 was in respect of proof
of the fact alleged by the plaintiff that in the
year 1976 partition had been effected, whether the
suit properties were kept joint or for the
maintenance of Dadarao and defendant No.3 Gangabai.
Obviously, burden was put on plaintiff and finding
recorded is in favour of the plaintiff. Issue No.2
was in respect of the entitlement of the plaintiff
for partition and separate possession and finding
is in favour of the plaintiff and in affirmative.
The trial Court, considering the evidence of the
parties, as noted above, decreed the suit with
costs.
7. The aggrieved defendants, as noted in
foregoing paragraphs, filed Regular Civil Appeal
No.33 of 2002. The first Appellate Court had
framed points for determination. These are about
four points for determination. Point NO.1 is in
respect of claim of the plaintiff that suit
properties are kept for maintenance of Dadarao and
defendant No.3 Gangabai, the finding is in favour
of the plaintiff. Point No.2 was in respect of
entitlement of the plaintiff for partition and
separate possession to the extent of 1/3rd share.
Here, the first Appellate Court, accepting the
entitlement of the plaintiff for partition and
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separate possession, worked out the share of the
parties and recorded the same in his judgment. The
first Appellate Court, in its judgment, para 8,
initially has noted admitted facts amongst the
parties. The most polemic issue amongst the
parties is regarding keeping suit properties joint
for the purpose of maintenance of deceased Dadarao
and deceased defendant No.3 Gangabai as well as
contention of the defendant No.1 that the suit
properties were allotted to his share, apart from
his regular share in joint family properties with
the assurance of defendant No.1 that he would
return the family debts Rs.10,000/- to Kotalwar,
the money lender. The first Appellate Court has
referred to the pleadings of the parties, evidence
led by the parties and the crux of the matter as to
whether in oral partition in the year 1976 the suit
properties were kept joint with Dadarao for the
maintenance of Dadarao and defendant No.3 Gangabai.
Plaintiff himself has been examined at Exhibit-66
in support of his case. Defendant No.1 has also
entered into the witness box and his evidence is at
Exhibit-94. Certified copy of the decree is
produced on record Exhibit-109, in Misc.
Application No.15 of 1971. The first Appellate
Court has referred the decree of 1971 against
Dadarao, father of the plaintiff and defendant No.1
and 2, directing him to make the payment of amount
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of Rs.3,125/- to decree holder therein Mr. Rajaram
Kotalwar. The first Appellate Court in para 11 has
recorded a finding that no evidence is produced by
the defendant No.1 that he had satisfied the said
decree and as such it cannot be said that the
defendant No.1 had repaid the loan of the joint
family. Receipt produced at Exhibit-101 has been
referred to by the first Appellate Court. One of
the receipt pertains to land development bank. The
receipts are of 1975. The first Appellate Court
inferred that from these receipts it cannot be said
that defendant No.1 repaid the same. The first
Appellate Court has further observed that name of
the person making repayment mentioned in the
receipts is deceased Dadarao. The first Appellate
Court, therefore, opined that the repayment of the
loan to land development bank has been made by
deceased Dadarao. The first Appellate Court
affirmed the finding of the trial Court on this
point. The trial Court’s finding that defendant
No.1 failed to prove that he has repaid the alleged
joint family debt of Rs.10,000/- has been
confirmed/ upheld by the first Appellate Court.
The evidence of defendant No.5 Mr. Sopan is also
considered by the first Appellate Court. It
appears that this witness has been examined on
behalf of the defendants to substantiate their
contentions regarding development of the suit
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properties by digging/ taking bore wells,
installing electricity pump etc. The first
Appellate Court, at the close of para 12, has
opined that the evidence of this witness is not
important one. Regarding partition, on behalf of
the defendant No.1, as noted above, Mr. Sopan
Namdeo, a witness was examined. The first
Appellate Court opined that the evidence of this
witness Mr. Sopan is totally against the evidence
of defendant No.1 himself and the case presented by
the defendant No.1 in his written statement, by way
of pleading. Trial Court has discarded the
evidence of this witness and the first Appellate
Court on reappreciation of evidence put a seal of
affirmation on the finding of the trial Court. The
first Appellate Court has considered the pleadings
and deposition of defendant No.1 himself and his
witnesses regarding partition of 1976 effected by
deceased Dadarao. The first Appellate Court has
collated the evidence of defendant No.1 himself and
his witnesses on the point of partition. The first
Appellate Court on appreciation of the evidence
recorded a finding that witness Sopan does not know
anything about the partition and his evidence is
not useful to the defendant No.1. The first
Appellate Court, at the close of para 13, observed
that except the oral evidence of defendant No.1
himself, nothing is brought on record to show that
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the suit properties are given to the share of
defendant No.1 in lieu of amount of debt of the
joint Hindu family. In para 14 of the judgment,
the first Appellate Court has considered the
mutation entry No.562 and 668 Exhibit-48 and 49.
The first Appellate Court, thereafter, in para 16
of the judgment, has considered the principles of
Hindu law and provisions of Hindu Succession Act of
1956. Since Gangabai died during the pendency of
the suit, and since terms Exhibit-44 is on record,
the first Appellate Court has justifiably observed
that said terms is between defendant No.1 and
defendant No.2. The logical inference has been
drawn by the first Appellate Court that, at the
most defendant No.2 can be said to be bound down by
the said terms and not the plaintiff. The first
Appellate Court has thus confirmed the judgment of
the trial Court.
8. The learned counsel for the Appellant has
invited my attention to the memo of second appeal.
According to him, ground Nos.IV, VI and IX, which
are reproduced herein below, involve substantial
question of law:
“IV) Whether it is correct to hod that,
inspite of the specific pleading of
the appellant No.1 in it’s written
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statement regarding the mode of
acquisition of suit lands in his
favour even then the Court’s below
did not frame the issues which
resulted into the miscarriage of
justice.
IV) The Court’s below did not carve out
the shares of the parties.
IX) The Court below did not consider the
effect of compromise between the
defendant No.1 and 2.”
9. I have given my thoughtful consideration
to the submissions of the learned counsel for the
Appellants as well as Respondent. Ground No.4 is
regarding the case of defendant No.1 that suit
properties were allotted to his share since he had
undertaken or assured to repay the joint family
loan. It is a question of fact, which has been
answered by the trial Court and on reappreciation
of the evidence, the first Appellate Court has
concurred with the said question of fact. Ground
No.VI pertains to working out shares of the
parties. Here, in the case on hand, death of
Dadarao in the 1979 is not in dispute. Courts have
recorded a finding regarding oral partition and
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allotment of the suit properties for maintenance to
Dadarao and deceased defendant No.3 Gangabai.
Working out share of the parties is a matter of
section 6 i.e. notional partition, section 8 and
section 16 in the facts and circumstances of the
present case. In my view, the first Appellate
Court, considering the subsequent events and
provisions of the Hindu Succession Act has legally
and justifiably worked out the share. This cannot
be said to be a substantial question of law, in the
facts and circumstances of the case. Ground No.IX
is regarding alleged compromise between defendant
Nos.1 and 2 Exhibit-44. I have referred to in
foregoing paragraphs of this order, the finding of
the trial Court as well as the first Appellate
Court. There was no decree passed by the any of
the Court in terms of compromise; it was taken by
the trial Court on record with further order that
it will consider the same at the time of final
judgment of the suit. The first Appellate Court
has also referred to the compromise and observed
that consequence is only upon defendant No.2 since
said terms was between defendant Nos.1 and 2.
Plaintiff has been justifiably exonerated by the
Courts below.
10. The learned counsel for the Appellant,
during the course of submissions, submitted that
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oral partition is largely admitted by the parties
in the year 1976 regarding joint family properties.
According to the learned counsel for the Appellant,
in this premise, the subsequent suit for partition,
that too on 19th September, 1994 is not
maintainable. Pleading of the parties in a civil
suit is significant and important. It is
foundation of the stance taken by the parties in
civil Suit. Order VI Rule 1 provides that plaint
is a pleading of the plaintiff and written
statement is pleading of the defendant. Parties
have to lead their evidence according to their
pleading. Especially, oral evidence cannot be, in
the absence of pleading, as has been provided under
Order VI Rule 2 of the Code. Oral evidence in the
absence of pleadings, has to be ignored. The
Supreme Court has time and again recognised the
importance of the pleading. Recent judgment of the
Supreme Court in the matter of “State Bank of India
V/s S. N. Goyal” reported in 2008 AIR SCW 4355
may be usefully referred to. In the case on hand,
copy of the written statement is not available,
either with the learned counsel appearing for the
Appellant or for the Respondent. However, pleading
of the parties have been set out in nutshell by the
Courts below in their judgments. From the
judgments, it appears that such pleading was not
raised by the defendants in their written statement
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itself. Consequently, there was no issue and no
finding of the trial Court, no point for
determination and no finding of the first Appellate
Court. Such new plea, raised before the High
Court, cannot be considered to be a ground within
the parameters of section 100 of the Code. In my
considered view, this appeal is devoid of
substantial question of law.
11. The second appeal stands dismissed with no
orders as to costs.
[S.B. DESHMUKH, J.]
Dated:04.09.2008
ans/sa605
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Bombay High Court
SECOND APPEAL NO.: 605 OF 2005
Date of Decision: 04th SEPTEMBER, 2008.
For approval and signature:-
THE HONOURABLE SHRI JUSTICE
S. B. DESHMUKH Sd/-
1. Whether Reporters of local papers ] Yes
may be allowed to see the judgment? ]
2. To be referred to the Reporter or ] No.
not.? ]
3. Whether Their Lordships wish to see ] No
the fair copy of the Judgment? ]
4. Whether this case involves a ] No
substantial question of law as to the ]
interpretation of the Constitution of ]
India, 1950, or any order made ]
thereunder? ]
5. Whether it is to be circulated to ] No
the Civil Judges? ]
6. Whether the case involves an ] No
important question of law and whether ]
a copy of the judgment should be sent ]
to Nagpur, Goa and Bombay offices? ]
Sd/-
[G. F. ANSARI]
PRIVATE SECRETARY.
TO THE HONOURABLE JUDGE
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