SA 165 of 2020 - Judgment.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR SECOND APPEAL NO.165/2020 APPELLANTS : 1) Hasinabi W/o Abdul Rashid (Ori. Plaintiffs) Age @ 50 Yrs., Occ – Household, R/o Ansar Nagar, Amravati, Tq. Dist. Amravati. 2) Ruksanabi W/o Abdul Haris Age @ 35 yrs., Occ- Household, R/o Mominpura, Nagpur, Tq. & Dist. Nagpur. ...VERSUS… RESPONDENT : Abdul Wahab Abdul Gani (Ori. Defendant) Age @ 58 yrs., Occ – Service R/o Ward No.20, Murtizapur, Tq. Murtizapur, Dist. Akola. --------------------------------------------------------------------------------------------------- Mr. S.M. Vaishnav, Advocate for appellants Mr. A.B. Mirza, Advocate for respondent --------------------------------------------------------------------------------------------------- CORAM : ROHIT W. JOSHI, J. DATE : 04/03/2026 ORAL JUDGMENT : 1. The present appeal is filed against the judgment and decree dated 13/11/2019, passed by the learned District Judge-3, Akola in Regular Civil Appeal No.26/2014, whereby the judgment and decree dated 11/02/2014, passed by the learned Joint Civil Judge, Junior Division, Murtizapur in Regular Civil Suit No.4/2000 came to be reversed. 2026:BHC-NAG:3714 SA 165 of 2020 - Judgment.odt 2 2. The appellants in the present appeal are legal heirs of original defendant late Banubi, who is mother of respondent, the original defendant. The plaintiff-mother had filed suit for possession against the defendant. While the said suit was pending, she has expired. The names of present appellants, who are daughters of original plaintiff, were brought on record as her legal representatives. Thus, the sisters contested the suit filed by their mother against their brother. The plaintiffs claimed that deceased-mother had executed a Will with respect to suit property in favour of plaintiff No.2 and also a document expressing her intention to exclude the defendant, her son, from right to seek any claim over the suit property. In view of the aforesaid, the legal representatives claimed that decree for possession with respect to the suit property could be passed in their favour, although the defendant being son of the original plaintiff was also legal heir of the deceased Banubi. It must however, be clarified that that prayer clause was not amended in order to seek decree for partition and separate possession in the alternative. It must be stated that the pleading with respect to Will, document of exclusion and alternate stand with respect to share in the properties was incorporated in the plaint by way of amendment. The defendant also incorporated consequential amendment in the written statement. SA 165 of 2020 - Judgment.odt 3 3. The learned Trial Court has framed Issue Nos.7 to 11, in view of the stand taken by the appellants as legal representatives (daughters of original plaintiff). The learned Trial Court discarded the Will on the ground that consent of other legal heirs was not obtained by the plaintiff/testator. The document excluding the defendant from the suit property is also discarded by the learned Trial Court. The learned Trial Court has granted a decree for partition and separate possession in favour of the plaintiffs and defendant. The learned Trial Court has awarded 1/4th share each to the plaintiffs and half share to the defendant vide judgment and decree dated 11/02/2014. The said decree for partition came to be challenged by the defendant by filing appeal being Regular Civil Appeal No.26/2014. 4. The learned District Judge-3, Akola has allowed the appeal vide judgment and decree dated 13/11/2019, thereby dismissing the suit. The suit came to be dismissed on the ground that the plaintiffs were not entitled to exclusive possession over the suit property and there was no prayer in the plaint for partition and separate possession. Aggrieved by the aforesaid decree, passed by the learned first Appellate Court, the appellants, who are legal representatives of original plaintiff, have preferred the Second Appeal, in which, following substantial questions of law came to be framed :- SA 165 of 2020 - Judgment.odt 4 “(1) Whether the Appellate Court was justified in reserving the decree granted by the Trial Court mainly on the basis of absence of a prayer in the suit filed by the appellants regarding the aspect of partition, when appropriate amendment of pleadings in the plaint and consequential amendment in the Written Statement before the Trial Court as also framing of issues Nos.9 and 11 before the Trial Court sufficiently indicated that the parties were aware about the exact nature of controversy before the Trial Court and they had also led evidence in that regard ? (2) Whether the approach adopted by the Appellate Court can be said to be hyper technical and hence unsustainable, particularly in the light of the fact that the parties to the litigation were clearly aware about the issues involved and upon placing their evidence in support of their respective stands, the decision of the Trial Court was invited by the parties ?” 5. Before coming to the substantial questions of law, it must be stated that there is no dispute between the parties that the plaintiffs and defendant are related to each other as sisters and brother, being daughters and son of original plaintiff. The ownership of original plaintiff over the suit property is duly proved by virtue of registered sale-deed in her favour. The learned Advocate for the respondent/defendant has also not challenged the findings as regards ownership of plaintiffs over the suit property. It is also well settled that under the Muslim Personal Law, a son is entitled to inherit double the share of a daughter as legal heir of the mother. In view of the aforesaid, SA 165 of 2020 - Judgment.odt 5 there cannot be a dispute about the correctness of share awarded by the learned Trial Court i.e. 1/4th each i.e. half share for both and half share to respondent. 6. As stated above, although all the relevant facts with respect to ownership and relationship between the parties are on record, specific prayer for partition and separate possession is not made in the plaint. The substantial questions of law are required to be answered, having regard to this position. Learned Advocate for the appellants has placed reliance on the following decisions : - (i) AIR 1951 SC 177 (Firm Sriniwas Ram Kumar Vs. Mahabir Prasad and others) (ii) AIR 1986 Punjab and Haryana 89 (Karam Dass and others Vs. Som Parkash) (iii) AIR 1989 Karnataka 83 (Thimaiah Vs. Madegowda) (iv) (1987) (2) SCC 555 (Ram Sarup Gupta (Dead) By Lrs. Vs. Bishun Narain Inter College and others) 7. A common thread that runs to these cases is that when foundation to a particular relief is laid in the pleadings and the parties have also led evidence with respect to the same, the pleadings should not be interpreted technically and that a relief, which is granted in such cases, even if, it is strictly for want of pleadings, such decree must be upheld. SA 165 of 2020 - Judgment.odt 6 8. As against this, the learned Advocate for the respondent/defendant places reliance on the judgment in the case of Bachhaj Nahar Vs. Nilima Mandal and another, reported in AIR 2009 SC 1103 to contend that the prayer, which was not made, ought not to have been granted by the learned Trial Court. 9. In the case of Bachhaj Nahar (supra) relied upon by the learned Advocate for the respondent, the plaintiff had filed a suit seeking declaration of ownership over the suit property and for possession of the same. The learned Trial Court has held that the plaintiff was entitled to decree for possession, however, instead of passing a decree for possession, it passed a decree for payment of money in favour of the plaintiff on the ground that the defendant had already completed construction over the suit property. The learned Appellate Court reversed the finding with respect to ownership and dismissed the suit accordingly. The learned first Appellate Court recorded that the suit property was merely being used by the plaintiff with express permission of the defendant. The plaintiff preferred Second Appeal before the High Court. The High Court did not disturb the findings with respect to ownership, however, in view of the finding recorded by the first Appellate Court that the plaintiff is using the suit property with express permission of the defendant, the High Court deemed it appropriate to pass a decree in favour of the plaintiff with SA 165 of 2020 - Judgment.odt 7 respect to the said easementary right of way in favour of the plaintiff. In this backdrop, the matter reached to the Hon’ble Supreme Court. The Hon’ble Supreme Court has held in paragraph Nos.8 and 10 of the judgment as under :- “8. The High Court, in this case, in its obvious zeal to cut delay and hardship 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 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. (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 not claimed and which does not flow from the facts and the cause of action alleged in the plaint. (iii) A factual issue cannot be raised or considered for the first time in a second appeal. 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 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. 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 particular SA 165 of 2020 - Judgment.odt 8 relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, 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. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question 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 no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief 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 any relief.” 10. As against this, the ratio of cases relied upon by the appellants is that if on the basis of admitted facts, the plaintiff is entitled to a particular relief, the same should not be denied to him. 11. Having considered the legal position, it will be appropriate to refer to the facts of the present case, where there is a specific pleading with respect to inter se relationship between the parties, which is not in dispute, as also ownership of the original plaintiff over the suit property, which is duly proved, in view of registered sale-deed in her name. The SA 165 of 2020 - Judgment.odt 9 learned Trial Court, has also framed issues with respect to shares of the parties, although there is no specific prayer for partition and separate possession. The parties have led evidence in the suit based on the said issues. 12. Perusal of cross-examination of the plaintiff will also demonstrate that questions with respect to partition were put to her. Thus, the parties have litigated being fully aware about the case set up by each other. Therefore, the shares are rightly computed by the learned Trial Court, ignoring the Will as also document excluding the defendant from claiming any interest over the suit property. The decree passed by the learned Trial Court is based on pleadings and evidence on record, although in the absence of a specific prayer for partition. 13. In the considered opinion of this Court, the relief of partition granted by the learned Trial Court has not caused any prejudice to the defendant. The learned first Appellate Court ought not to have interfered with the decree only on the ground that there was no prayer for partition and separate possession in the suit and that the suit was a suit for possession. The learned first Appellate Court should have considered that a decree by a Court of competent jurisdiction should not be disturbed only on the ground that procedure is not properly followed, unless consequent prejudice is established. Such is the statutory mandate of Section 99 of the Code of Civil Procedure. SA 165 of 2020 - Judgment.odt 10 14. At this stage, it will be appropriate to refer to the judgment of Nagpur High Court in the case of Gangaram Ramachandra Vs. Butrusao and others, reported in AIR 1952 Nagpur 202, wherein a decree for partition, granted in a suit for possession, was upheld by the High Court. Relevant observations in paragraph 26 and 27 of the judgment are extracted herein below :- “26. The lower Courts have given the plaintiffs, a decree for partition. It was contended that no suit for partition of a joint family dwelling house will lie and reliance was placed on Section 4, Partition Act, 1893. It was also contended that a suit for possession cannot be converted into one for partition. 27. As regards the second point, we can see no reason why a suit for exclusive possession of 16 annas cannot be turned into a suit for partition and possession of such share as may be determined to belong to the plaintiff if the defendants contend, or it is found that the plaintiff is not entitled to the whole but only to a part.” 15. In view of the aforesaid, in the considered opinion of this Court, the substantial questions of law framed in the appeal are required to be answered in favour of the appellants/plaintiffs and against the respondent/defendant. Second Appeal is allowed in the following terms :- SA 165 of 2020 - Judgment.odt 11 (i) Judgment and decree dated 13/11/2019, passed by the learned District Judge-3, Akola in Regular Civil Appeal No.26/2014 is quashed and set aside. (ii) Judgment and decree dated 11/02/2014, passed by the learned Joint Civil Judge, Junior Division, Murtizapur in Regular Civil Suit No.4/2000 is confirmed. (iii) Parties to bear their own costs. (ROHIT W. JOSHI, J.) Wadkar Signed by: S.S. Wadkar (SSW) Designation: PS To Honourable Judge Date: 05/03/2026 20:51:13