Holding

Relief must be founded on pleadings; the High Court erred in granting easement‑based relief without such pleadings and its order is set aside.

Summary

The plaintiffs filed a suit for declaration of title, possession and injunction over a narrow strip of land, claiming it formed part of their property purchased in 1962. The trial court held the strip was part of the plaintiffs' land and ordered the defendant to pay a nominal sum for the encroached portion; the first appellate court reversed, finding the plaintiffs had not proved title and dismissed the suit. On second appeal, the High Court, despite the absence of any pleading for an easement, held that the plaintiffs were entitled to a right of passage and granted a permanent injunction based on that easement. The Supreme Court held that relief must be founded on pleadings and that a court cannot convert a suit for title into an easement suit without the easement being pleaded and the servient owner being impleaded. Consequently, the High Court's order was set aside and the first appellate court's judgment dismissing the suit was restored.

Issues considered

Can a court grant relief based on an easementary right when such a right was not pleaded in the plaint?
Whether a suit for declaration of title can be converted into a suit for enforcement of an easement without impleading the servient owner?
Whether evidence relating to a claim not pleaded may be considered for granting relief?
Whether the High Court erred in granting an injunction and declaration of easement in the present case?

Legislation cited

Code of Civil Procedure, 1908s. Order 6 Rule 1

Subjects

civil procedurepleadingseasementtitle suitinjunctionjurisdictionevidenceCode of Civil ProcedureOrder 6 Rule 1relief based on pleadings

Judgment

[2008] 14 S.C.R. 621

----.r~ BACHHAJ NAHAR A
v.
NILIMA MANDAL & ANR.
(Civil Appeal Nos.5798-5799 of 2008)

SEPTEMBER 23, 2008
B
[R. v. RAVEENDRAN AND LOKESHWAR SINGH
ANTA, JJ]
..,..
• l

• Code of Civil Procedure, 1908:
0. 6 r 1 - Pleadings - Suit for declaration of title and c
possession of strip of land - Decreed partly by trial court hold-
ing that swt property was part of plaintiffs' property and defen-
dant having put up construction over the encroached portion,
directed to pay price for the same - Dismissal of suit by first
appellate court holding that plaintiff failed to prove title over D
property - In second appeal, High Court while holding that
_,, plaintiffs not owners of property, granted relief based on
r easementary right of passage over suit property - On appeal,
held: Relief should be founded on pleadings made by parties
- In absence of pleadings as to claim by plaintiffs based on E
easementary right and opportunity to defendant to deny such
claim, High Court could not have converted suit for title into
suit for easementary right- Servient owner also not impleaded
as defendant- Thus, order of High Court set aside and that of
first appellate court restored - High Court at best could have F
reserved liberty to plaintiffs to file separate suit for easement.
). JI
Pleadings and issues - Object and purpose of - Ex-
plained.
Nedunuri Kameswaramma v. Sampati Subba Rao AIR
G
1963 SC 884; Bhagwati Prasad vs. Shri Chandramaul AIR
1966 SC 735; Ram Sarup Gupta (dead) by LRs. vs. Bishun
'- Narain Inter College AIR 1987 SC 1242 - referred to.

621 H
622 SUPREME COURT REPORTS [2008] 14 S.C.R.

A CASE LAW REFERENCE
AIR 1963 SC 884 Referred to. Para 11
Alf11966 SC 735 Referred fo. Para 11
AIR. 1987 SC 1242 Referred to. Para 11
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5798-5799 of 2008
From the final Judgment and Order dated 14.5.2004 &
9.12.2004 of the High Court of Judicature at Patna in Appeal
c from Appellate Decree No. 76 of 1989 & Civil Review No. 97 of
2004 respectively
S.B. Sanyal, Ranjan Mukherjee for the Appellant.
Deba Prasad Mukherjee for the Respondents.
D The Order of the Court was delivered by
r
R. V. RAVEENDRAN J. 1. Leave granted. Heard the ~
learned counsel. For convenience, the parties will be referred
to also by their ranks in the suit.
E The facts
2. Respondents 1 and 2 (plaintiffs) filed a suit for declara-
tion, possession and injunction (Title suit no.133/1982 on the
file of Sadar Munsiff, Purnia) against the appellant (first defen-
dant) and Sujash Kumar Ghosh (second defendant) in regard
F
to the suit property. The suit property is a strip of land measur-
ing East to West : 72 feet and North to South : 1'3" on the West-
ern side and 1O" on the Eastern side described in Schedule 'B'
to the plaint. Plaintiffs claimed that the suit property was a part
of the 'A' schedule property purchased by them under sale deed
G dated 29.12.1962. The reliefs sought in the said suit were :
(i) declarations that (a) the plaintiffs are the absolute
J
owners in possession of the suit property; (b) the
defendants do not have any right, title or interest or
H possession in respect of suit property; and (c) the
BACHHAJ NAHAR v. NILIMA MAN DAL & ANR. 623

first defendant had illegally encroached and started A
construction in the suit property;
(ii) a direction to first defendant to deliver possession of
the suit property to plaintiffs after demolishing the
construction over the same; and
B
(iii) a permanent injunction restraining first defendant
'-I'
I
from interfering with the suit property.
3. The first defendant resisted the suit contending that he
had purchased the property to the South of plaintiff's property
from second defendant under sale deed dated 5.5.1982 and c
the suit property actually formed part of his property. He con-
tended that the plaintiffs had no right, title or interest in the suit
property.
4. The trial court framed the following issues :
D
. .,, (i) Is the suit as framed maintainable?
,#

(ii) Have the plaintiffs got any cause of action to file the
suit as against these defendants?
(iii) Is the suit barred by limitation and also on the principle E
of waiver estoppel and acquiescence?
(iv) Whether the description of the suit land is vague?
(v) Whether the suit land is part and parcel of land of the
plaintiff purchased through registered kewala or the F
_,.. -~.
suit land in exclusive possession of lshan Chand
Ghosh, and after his death of second defendant, and
after purchase of first defendant.
(vi) Has first defendant encroached any portion of the
suit land? G
'-. · (vii) Whether the plaintiffs got title over the suit land? Or
were they using the suit land under express
permission of the late lshan Chand Ghosh and his
son? H
).::

624 SUPREME COURT REPORTS [2008] 14 S.C.R. r
(

>

A (viii) To what relief or reliefs, plaintiffs are entitled?
r...- )-
5. After considering the evidence, the trial court by judg-
ment and decree dated 31.8.1987 decreed the suit in part. It
held that the suit property was part of plaintiffs' property and
that first defendant had encroached over a part of it to an extent
B of 15 sq. ft. The trial court held that as first defendant had al-
ready put up his construction over the encroached portion and
was using it, instead of directing him to deliver back posses-
·~
sion thereof, he should pay Rs.100/- as the price of the en-
croached portion, to the plaintiffs. Feeling aggrieved, the first
c defendant filed an appeal. Plaintiffs filed cross-objections. The
first appellate court held that the plaintiffs had failed to prove
that the suit property was part of their property purchased under
sale deed dated 29.12.1962 or that first defendant had en-
croached upon any portion of plaintiffs' property; and that the
D evidence adduced by plaintiffs established that the Gali (suit
property) was earlier owned by lshan Chand Ghosh and his sons
and plaintiffs were only using the said Gali with their express
'f
permission. The first appellate court therefore allowed the ap- ~
peal filed by first defendant and dismissed the cross-objections
E filed by the plaintiffs by judgment dated 12.1.1989. As a conse-
quence the suit of the plaintiffs was dismissed.
6. Feeling aggrieved, the plaintiffs filed a second appeal
before the High Court. The High Court by judgment dated
14.5.2004 allowed the second appeal. The High Court held that
F the plaintiffs had failed to make out title to the suit property. It
however held that plaintiffs had made out a case for grant of
relief based on easementary right of passage, in respect of the
suit property, as they had claimed in the plaint that they and
their vendor had been using the suit property, and the first de-
"· "'-

G fendant and DW6 had admitted such user. The High Court was
of the view that the case based on an easementary right could
be considered even in the absence of any pleading or issue
)·
relating to an easementary right, as the evidence available was
sufficient to make out easementary right over the suit property.
H The High Court therefore granted a permanent injunction re-
BACHHAJ NAHAR v. NILIMA MAN DAL & ANR. 625

straining the first defendant from interfering with the plaintiffs' A
__.,,, use and enjoyment of the 'right of passage' over the suit prop-
erty (as also of the persons living on the northern side of the suit
property). The High Court also observed that if there was any
encroachment over the said passage by the first defendant, that
will have to be got removed by the "process of law". The High B
Court also issued a permanent injunction restraining the plain-
tiffs from encroaching upon the suit property (passage) till the
plaintiffs got a declaration of their title over the suit property by
/
a competent court. The first defendant sought review of the said
judgment. The review petition was dismissed by the High Court c
by order dated 9.12.2004.
7. The said judgment and order on review application, of
the High Court, are challenged by the first defendant in these
appeals by special leave. The Appellant contends that neither
in law, nor on facts, the High Court could have granted the afore- D
said reliefs.

"!' 8. The High Court, in this case, in its obvious zeal to cut
,Y delay and hard~hip that may ensue by relegating the plaintiffs
to one more round of litigation, has rendered a judgment which
violates several fundamental rules of civil procedure. The rules E
breached are :
(i) No amount of evidence can be looked into, upon a
plea which was never put forward in the pleadings.

.;. , A question which did arise from the pleadings and
which was not the subject matter of an issue, cannot
be decided by the court.
F

(ii) A Court cannot make out a case not pleaded. The
court should confine its decision to the question
raised in pleadings. Nor can it grant a relief which is G
not claimed and which does not flow from the facts
and the cause of action alleged in the plaint.
'fl
. '-
(iii) A factual issue cannot be raised or considered for
the first time in a second appeal.
H
t

626 SUPREME COURT REPORTS [2008] 14 S.C.R.

,,...,....
A Civil Procedure Code is an elaborate codification of the
principles of natural justice to be applied to civil litigation.
The provisions are so elaborate that many a time, fulfillment
of the procedural requirements of the Code may itself
contribute to delay. But any anxiety to cut the delay or
"'
B further litigation, should not be a ground to float the settled
fundamental rules of civil procedure. Be that as it may. We
will briefly set out the reasons for the aforesaid conclusions.
9. The object and purpose of pleadings and issues is to
ensure that the litigants come to trial with all issues clearly de-
'
c fined and to prevent cases being expanded or grounds being
shifted during trial. Its object is also to ensure that e.ach side is
fully alive to the questions that are likely to be rai$ed dr consid_-
ered so that they may have an opportunity of placing the rel-
evant evidence appropriate to the issues before the court for its
D consideration. This Court has repeatedly held that the plead-
ings are meant to give to each side intimation of the case of the y
other so that it rtiay be met, to enable courts to determine what ~
is really at issue between the parties, and to prevent any devia-
tion from the course which litigation on particular causes must
E take.
10. The object of issues is to identify from the pleadings
the questions or points required to be decided by the courts so
as to enable parties to let in evidence thereon. When the facts
necessary to make out a particular claim, or to seek a particu-
F lar relief, are not found in the plaint, the court cannot focus the ~ ~ ..
attention of the parties, or its own attention on that claim or re-
lief, by framing an appropriate issue. As a result the defendant
does not get an opportunity to place the facts and contentions
necessary to repudiate or challenge such a claim or relief. There-
G fore, the court cannot, on finding that the plaintiff has not made
out the case put forth by him, grant some other relief. The ques-
tion before a court is not whether there is some material on the ~
~-..
basis of which some relief can be granted. The question is
whether any relief can be granted, when the defendant had n.o
H opportunity to show that the relief proposed by the court could
BACHHAJ NAHAR v. NllliV1A MAN DAL & ANR. 627

~ not be granted. When there is no prayer for a particular relief A
and no pleadings to support such a relief, and when defendant
has no opportunity to resist or oppose such a relief, if the court
•(
considers and grants such a relief, it will lead to miscarriage of
justice. Thus it is said that no amount of evidence, on a plea that
is not put forward in the pleadings, can be looked into to grant B
any relief.
11. The High Court has ignored the aforesaid principles
relating to the object and necessity of pleadings. Even though
right of easement was not pleaded or claimed by the plaintiffs,
and even though parties were at issue only in regard to title and c
possession, it made out for the first time in second appeal, a
case of easement and granted relief based on an easementary
right. For this purpose, it relied upon the following observations
of this Court in Nedunuri Kameswaramma v. Sampati Subba
Rao [AIR 1963 SC 884]: D

'!"'
"No doubt, no issue was framed, and the one, which was
y framed, could have been more elaborate, but since the
parties went to trial fully knowing the rival case and led all
the evidence not only in support of their contentions but in
refutation of those of the other side, it cannot be said that E
the absence of an issue was fatal to the case, or that there
was that mistrial which vitiates proceedings. We are,
therefore, of opinion that the suit could not be dismissed

...., ., on this narrow ground, and also that there is no need for
a remit, as the evidence which has been led in the case
is sufficient to reach the right conclusion."
F

But the said observations were made in the context of
absence of an issue, and not absence of pleadings. The rel-
evant principle relating to circumstances in which the deficiency
G
in, or absence of, pleadings could be ignored, was stated by a
'r'l
. .._
Constitution Bench of this Court in Bhagwati Prasad vs. Shri
Chandramaul - AIR 1966 SC 735 :
"ff a plea is not specifically made and yet it is covered by
an issue by implication, and the parties knew that the H
628 SUPREME COURT REPORTS [2008] 14 S.C.R.
~

A said plea was involved in the trial, then the mere fact that
the plea was not expressly taken in the pleadings would
not necessarily disentitle a party from relying upon if it is
satisfactorily proved by evidence. The general rule no doubt
is that the relief should be founded on pleadings made by
B the parties. But where the substantial matter relating to
the title of both parties to the suit was touched, tough
indirectly or even obscurely in the issues, and evidence
has been led about them then the argument that a particular
matter was not expressly taken in the pleadings would be
c purely formal and technical and cannot succeed in every
case. What the Court has to consider in dealing with such
an objection is : did the parties know that the matter in
question was involved in the trial, and did they lead
evidence about it? If it appears that the parties did not
know that the matter was in issue at the trial and one of
D
them has had no opportunity to lead evidence in respect y
of it, that undoubtedly would be a different matter. To allow ~

one party to rely upon a matter in respect of which the
other party did not lead evidence and has had no
opportunity to lead evidence, would introduce
E considerations of prejudice, and in doing justice to one
party, the Court cannot do injustice to another."
(emphasis supplied)

The principle was reiterated by this Court in Ram Sarup ,;.----
F Gupta (dead) by LRs., vs. Bishun Narain Inter College [AIR ~
1987 SC 1242]:
"It is well settled that in the absence of pleading, evidence,
if any, produced by the parties cannot be considered. It
is also equally settled that no party should be permitted
G )1
to travel beyond its pleading and that all necessary and
~
material facts should be pleaded by the party in support
of the case set up by it. The object and purpose of pleading
is to enable the adversary party to know the case it has to
meet. In order to have a fair trial it is imperative that the
H
BACHHAJ NAHAR v. NILIMA MAN DAL & ANR. 629
...-,
party should state the essential material facts so that A
other party may not be taken by surprise. The pleadings
however should receive a liberal construction, no pedantic
approach should be adopted to defeat justice on hair
splitting technicalities. Sometimes, pleadings are
expressed in words which may not expressly make out a 8
case in accordance with strict interpretation of law, in such
a case it is the duty of the court· to ascertain the substance
if the pleadings to determine the question. It is not desirable
to place undue emphasis on form, instead the substance
of the pleadings should be considered. Whenever the c
question about lack of pleading is raised the enquiry should
not be so much about the form of pleadings, instead the
court must find out whether in substance the parties knew
the case and the issues upon which they went to trial.
Once it is found that in spite of deficiency in the pleadings,
D
'<(
parties knew the case and they proceeded to trial on
:i those issue by producing evidence, in that event it would
not be open to a party to raise the question of absence
of pleadings in appeal."
[emphasis supplied] E
12. It is thus clear that a case not specifically pleaded can
be considered by the court only where the pleadings in sub-
stance, though not in specific terms, contains the necessary

... ~ averments to make out a particular case and the issues framed
also generally cover the question involved and the parties pro- F
ceed on the basis that such case was at issue and had led
evidence thereon. As the very requirements indicate, this should
be only in exceptional cases where the court is fully satisfied
· that the pleadings and issues generally cover the case subse-
.._ quently put forward and that the parties being conscious of the G
issue, had led evidence on such issue. But where the court is .
\...,.
not satisfied that such case was at issue, the question of resort-
ing to the exception to the general rule does not arise. The prin-
ciples laid down in Bhagwati Prasad and Ram Sarup Gupta
(supra) referred to above and several other decisions of this H
630 SUPREME COURT REPORTS [2008) 14 S.C.R.

A Court following the same cannot be construed as diluting the
well settled principle that without pleadings and issues, evidence
cannot be considered to make out a new case which is not
pleaded. Another aspect to be noticed, is that the court can
consider such a case not specifically pleaded, only when one
B of the parties raises the same at the stage of arguments by
contending that the pleadings and issues are sufficient to make
out a particular case and that the parties proceeded on that
basis and had led evidence on that case. Where neither party
puts forth such a contention, the court cannot obviously make
c out such a case not pleaded, suo moto.
13. A perusal of the plaint clearly shows that entire case of
the plaintiffs was that they were the owners of the suit property
and that the first defendant had encroached upon it. The plain-
tiffs had not pleaded, even as an alternative case, that they were
D entitled to an easementary right of passage over the schedule
property. The facts to be pleaded and proved for establishing
title are different from the facts that are to be pleaded and proved
for making out an easementary right. A suit for declaration of
title and possession relates to the existence and establishment
E of natural rights which inhere in a person by virtue of his owner-
ship of a property. On the other hand, a suit for enforcement of
an easementary right, relates to a right possessed by a domi-
nant owner/occupier over a property not his own, having the ef-
fect of restricting the natural rights of the owner/occupier of such
F property.
14. Easements may relate to a right of way, a right to light
and air, right to draw water, right to support, right to have over-
hanging eaves, right of drainage, right to a water course etc.
Easements can be acquired by different ways and are of differ-
G ent kinds, that is, easement by grant, easement of necessity,
easement by prescription, etc. A dominant owner seeking any
declaratory or injunctive relief relating to an easementary right
shall have plead and prove the nature of easement, manner of
acquisition of the easementary right, and the manner of distur-
H bance or obstruction to the easementary right. The pleadings
BACHHAJ NAHAR v. NILIMA MAN DAL & ANR. 631

--A necessary to establish an easement by prescription, are differ- A
ent from the pleadings and proof necessary for easement of
necessity or easement by grant. In regard to an easement by
prescription, the plaintiff is required to plead and prove that he
was in peaceful, open and uninterrupted enjoyment of the right
for a period of twenty years (ending within two years next be- 8
fore the institution of the suit). He should also plead and prove
that the right claimed was enjoyed independent of any agree-
7
ment with the owner of the property over which the right is
claimed, as any user with the express permission of the owner
will be a licence and not an easement. For claiming an ease- c
ment of necessity, the plaintiff has to plead that his dominant
tenement and defendant's servient tenement originally consti-
tuted a single tenement and the ownership thereof vested in the
same person and that there has been a severance of such own-
ership and that without the easementary right claimed, the domi-
D
nant tenement cannot be used. We may also note that the plead-
ings necessary for establishing a right of passage is different
"'
y;-
I
from a right.of drainage or right to support of a roof or right to
water course. We have referred to these aspects only to show
that a court cannot assume or infer a case of easementary right,
by referring to a stray sentence here and a stray sentence there E
in the pleading or evidence.

15. A right of easement can be declared only when the
servient owner is a party to the suit. But nowhere in the plaint,
the plaintiffs allege, and nowhere in the judgment, the High Court F
~
·I holds, that the first or second defendant is the owner of the suit
7'
property. While concluding that the plaintiffs were not the own-
ers of the suit property, the High Court has held that they have a
better right as compared. to the first defendant and has also
reserved liberty to the plaintiffs to get their title established in a
G
competent court. This means that the court did not recognize
~ the first defendant as the owner of the suit property. If the High
l...
Court was of the view that defendants were not the owners of
the suit property, it could not have granted declaration of
easementary right as no such.relief could be granted unless the
H
632 SUPREME COURT REPORTS [2008] 14 S.C.R.

A servient owner is impleaded as a defendant. It is also
ununderstandable as to how while declaring that plaintiffs have
only an easementary right over the suit property, the court can
reserve a right to the plaintiffs to establish their title thereto by a
separate suit, when deciding a second appeal arising from a
s suit by the plaintiffs for declaration of title. Nor is it understand-
able how the High Court could hold that the apart from plaintiffs,
other persons living adjacent to and north of the suit property
were entitled to use the same as passage, when they are not
parties, and when they have not sought such a relief.
C 16. The observation of the High Court that when a plaintiff
sets forth the facts and makes a prayer for a particular relief in
the suit, he is merely suggesting what the relief should be, and
that it is for the court, as a matter of law, to decide upon the
relief that should be granted, is not sound. Such an observation
D may be appropriate with reference to a writ proceeding. It may
ev,en be appropriate in a civil suit while proposing to grant as
relief, a lesser or smaller version of what is claimed. But the
said observation is misconceived if it is meant to hold that a
civil court may grant any relief it deems fit, ignoring the prayer. It
E 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-
F joinder of causes of action or parties etc., which require p.lead-
ing 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 Rs.one lakh, the court cannot grant a decree for Rs.
G Ten lakhs. In a suit for recovery pO$Session of property·~. court
cannot grant possession of property 'B'. In a suit praying for
permanent injunction, court grant a relief of declaration or pos-
session. The jurisdiction to grant relief in a civil suit necessarily
depends on the pleadings, prayer, court fee paid, evidence let
H in, etc. ·
BACHHAJ NAHAR v. NILIMA MAN DAL & ANR. 633

rl 17. In the absence of a claim by plaintiffs based on an A
easementary right, the first defendant did not have an opportu-
nity to demonstrate that the plaintiffs had no easementary right.
In the absence of pleadings and an opportunity to the first de-
fendant to deny such claim, the High Court could not have con-
verted a suit for title into a suit for enforcement of an easementary B
right. The first appellate court had recorded a finding of fact that
plaintiffs had not made out title. The High Court in second ap-
'I peal did not disturb the said finding. As no question of law arose
for consideration, the High Court ought to have dismissed the
second appeal. Even if the High Court felt that a case for ease- c
ment was made out, at best liberty could have been reserved to
the plaintiffs to file a separate suit for easement. But the High
court could not, in a second appeal, while rejecting the plea of
the plaintiffs that they were owners of the suit property, grant the
relief of injunction in regard to an easementary right by assum-
D
ing that they had an easementary right to use the schedule prop-
erty as a passage.
y
l
18. We accordingly allow these appeals and set aside the
judgment and order of the High Court and restore the judgment
of the first appellate court. Parties to bear respective costs. E
19. The learned counsel for respondents - plaintiffs sub-
mitted that the parties have been litigating for more than quar-
ter of a century over a small strip; and that without prejudice to
their rights, if some arrangement could be arrived at whereby
the plaintiffs are permitted to have at least a 'pakka nala' for F
,/ passage of effluents from their property, it may put an end to the
. -r-
dispute between the two neighbours. All that we can observe is
that it is always open to the parties to get any issue or dispute
settled by mediation or by direct negotiations. This observation
should not however be construed as recognition of any right in G
plaintiffs.
'
~-
' -.....
N.J. Appeals allowed.