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Elizabeth v. Saramma
Factual and Procedural Background
This matter arises from O.S. 617 of 1978. The defendants (three in number) are the appellants in the Second Appeal. The plaintiff initiated the suit for recovery of possession of the property described in the plaint schedule and for demolition of the building described as plaint item No. 2, relying on the plaintiff's title. The plaintiff alleged that permission had been given to the first defendant to construct a building (referred to in the plaint as item No. 1) on the express condition that the first defendant would surrender the building whenever demanded. The plaintiff asserted bona fide necessity of the property for constructing a building for her son, Asokan.
The defendants contested the suit, challenging the plaintiff's title and possession and asserting that Joseph (the husband of the first defendant) had obtained permission from Marshall (the husband of the plaintiff) to construct a building, that this permission was given about 30 years earlier, and that the defendants (together with Joseph, who later died) were residing in plaint item No. 2. The defendants also claimed tenancy, fixity of tenure and contended entitlement to a "kudikidappu" right under the Kerala Land Reforms Act; there were other contentions not described in detail in the opinion.
At trial, five issues were framed. Issue No. 2 asked whether the first defendant was a "Kudikidappukaran" in the property and was referred to the Land Tribunal under Section 125 of the Kerala Land Reforms Act. The Land Tribunal found that the first defendant was not a Kudikidappukaran. The trial proceeded on the remaining issues: the plaintiff was examined as Pw.1 and produced Exts. A1 to A4; the first defendant was examined (also described as Pw.1 in the opinion) and produced no documents.
The trial court found the plaintiff to be the owner (issue No. 1), accepted the Tribunal's finding (issues 2 and 5) that the first defendant was not a kudikidappukaran, and found for the plaintiff on issues Nos. 3 and 4 that the plaintiff had title and possession over plaint item No. 1. On the strength of title the trial court decreed recovery of possession and eviction of the defendant from plaint item No. 2. The defendants appealed; the learned Sub-ordinate Judge, Cochin dismissed the appeal and confirmed the trial court's decree and judgment. The Second Appeal was then admitted and proceeded on the substantial question of law formulated by the court.
Legal Issues Presented
- Whether the appellants are entitled to the protection of Section 60 of the Indian Easements Act (and specifically whether Section 60(b) of the Indian Easements Act applies on the facts of this case).
Arguments of the Parties
Appellants' Arguments
- The appellants urged that the lower appellate court erred in holding that Section 60(b) of the Indian Easements Act does not apply to the facts of the case.
- The core contention was that the licence granted to the first defendant (or her predecessor-in-interest) to construct the building was irrevocable by virtue of Section 60(b) and that the courts below wrongly denied them the benefits of that provision.
- The appellants challenged the appellate court's two stated bases for rejecting Section 60(b): (a) that there was a contract to the contrary, and (b) that no specific plea or issue had been taken at trial. They contended the evidence and pleadings supported their entitlement to S.60(b).
Respondent's Arguments
- The respondent submitted that the question is essentially a mixed question of fact and law rather than a pure substantial question of law.
- It was argued that, in the absence of any pleading or issue on the point at trial, the lower appellate courts should not have allowed the plea regarding Section 60(b) to be raised for the first time on appeal.
- The respondent maintained that the appellate court's factual finding that Section 60(b) has no application on the facts was correct and not liable to interference.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Lakshmi Narain v. State (AIR 1977 Patna 73) | Explains the object and purpose of pleadings (referring to Order VI Rule 2 and Order VIII Rules 2-4 of the Code of Civil Procedure); parties must be aware of questions to be argued so they may bring forward appropriate evidence; pleadings lead to framing issues and confine trial to those issues. | Used to emphasize the importance of pleadings and that a party cannot ordinarily travel beyond issues framed; also supports limited relaxation where a plea was in substance tried and both parties had opportunity to lead evidence. |
| Ram Manohar v. State of Bihar (AIR 1966 SC 735) | Authority cited in support of the proposition that a court may relax formal pleading requirements where a ground was in substance at issue and parties had opportunity to lead evidence. | Relied upon as supporting precedent for the limited circumstance where pleadings may be construed broadly if the matter was in substance tried. |
| Udhay Singh v. M.R. Scindia ((1977) 1 SCC 511 : AIR 1976 SC 744) | “A pleading has to be read as a whole to ascertain its true import” — one cannot cull out isolated sentences; pleadings must be construed in context. | Applied to reject selective reliance on an isolated passage in pleadings and to require that the defendants' written statement be read as a whole when assessing whether they had pleaded irrevocability under S.60(b). |
| Siddik Mohammed Shah v. Mt. Saran (AIR 1930 PC 57) | Where a claim has never been made in the defence, no amount of evidence can be considered on a plea which was never put forward. | Invoked to support the proposition that a plea not presented in defence cannot be relied upon later; used to corroborate that courts should not look into evidence for a claim lacking foundation in pleadings. |
| Bhagat Singh v. Jaswant Singh (AIR 1966 SC 1861) | Approved the principle in Siddik Mohammed Shah that evidence cannot be considered for a plea not founded in the pleadings. | Used to reinforce the settled rule that evidence is inadmissible to support a claim not pleaded. |
| Nirod Baran Banerjee v. Dy. Commissioner Of Hazaribagh ((1980) 3 SCC 5 : AIR 1980 SC 1109) | Affirms that no evidence can be looked into by the Court for which there is no foundation in the pleadings. | Cited to support the court's conclusion that the appellants could not rely on Section 60(b) when it had not been pleaded or made the subject of an issue at trial. |
| Dhool Singh v. Bardhu Bai (AIR 1974 Rajasthan 90) | On the question of irrevocability of licence under Section 60(b): such a question is a mixed question of law and fact, requiring that necessary facts be pleaded and an issue framed; absent such plea or issue, courts err in holding a licence irrevocable. | Applied directly as a precedent to hold that the plea of irrevocability under S.60(b) had to be pleaded and an issue framed; absence of this meant the courts below were right to reject the belated plea. The opinion relied on this case in dismissing the appeal. |
| (Privy Council) (1895) 22 Ind App 4 (PC) | Quoted on the purpose of pleadings — to make each side fully alive to the questions to be argued so they may present appropriate evidence. | Quoted via Lakshmi Narain to underline the foundational purpose of pleadings in framing the scope of trial and evidence; reinforced the court's approach to pleadings in this case. |
Court's Reasoning and Analysis
The court proceeded on the admitted central question whether the appellants were entitled to protection under Section 60 (in particular Section 60(b)) of the Indian Easements Act. The court summarized the positions and then analysed two distinct bases on which the lower appellate court had rejected the appellants' reliance on S.60(b):
- Existence of a contract to the contrary: It is not disputed that S.60(b) does not apply where there is a contract to the contrary. The appellate court found, after appreciation of the evidence, that there was reliable evidence establishing such a contract — specifically, paragraph 2 of the plaint asserted that permission to construct was conditional on surrendering the building whenever demanded, and Pw.1 gave evidence in support of that assertion; Dw.1 denied the agreement. The appellate court weighed these competing pieces of evidence and accepted the plaintiff's proof of an agreement to the contrary. The opinion treats that determination as a factual finding arising out of evidence appreciation.
- Absence of plea and issue at trial: The appellate court also relied on the procedural principle that a plea of irrevocability under S.60(b) must be pleaded and proved. The defendants' written statement, when read as a whole, contained no specific, implied or alternative plea that the licence was irrevocable under S.60(b), nor was any issue framed on this point at trial. The opinion cites authority establishing that pleadings and issues confine the trial and that courts will not entertain a claim not raised in the defence unless the matter was in substance before the trial and both parties had the opportunity to lead evidence on it. The court found that the appellants first took the S.60(b) plea before the first appellate court, and they had neither amended issues nor sought framing of additional issues in the trial court; accordingly, the plea was not properly before the trial court and could not be entertained on appeal.
The court supported these conclusions by reference to multiple authorities emphasizing that pleadings must be read as a whole, that evidence cannot be considered for a claim not founded in the pleadings, and that the question of irrevocability under Section 60(b) is a mixed question of law and fact which requires pleading and issue framing. Applying those principles to the facts and record, the court concluded that the appellate court's rejection of S.60(b) on the two stated grounds was correct.
Holding and Implications
Final Disposition: Dismissed. The Second Appeal was dismissed and no costs were awarded.
Direct consequences for the parties:
- The decree and judgment of the trial court (and the confirming decision of the lower appellate court) stand: the plaintiff's recovery of possession and the eviction relief as decreed below remain effective.
- The appellants are not held entitled to protection under Section 60(b) of the Indian Easements Act on the record before the courts — the court upheld the view that either a contract to the contrary existed (as found on evidence) or, alternatively, that the plea of irrevocability under S.60(b) had not been properly pleaded or made an issue at trial and was therefore not available to the appellants on appeal.
Broader implications: The opinion applies and reaffirms established principles concerning the centrality of pleadings and issue-framing in civil trials and the requirement that claims invoking Section 60(b) be both pleaded and proved; the court did not purport to lay down any new law beyond those principles reflected in the authorities it cited.
1. Defendants 3 in number in O.S 617 of 1978 are the appellants. The suit was for recovery of possession of property described in the plaint schedule after demolishing the building therein which has been described as item No. 2, on the strength of title of the plaintiff. According to the plaintiff, permission was given to the 1st defendant to construct a building in plaint item No. 1 on condition that she will surrender the building whenever demanded. The property in question is now required by the plaintiff bona fide for constructing a building for her son Asokan. The defendants resisted the suit putting the plaintiff to prove her title and possession over the plaint schedule properties and also contending that it was Joseph, the husband of the 1st defendant who obtained permission from Marshall, the husband of the plaintiff, to construct a building. It was also contended that it was after obtaining permission from Marshall, Joseph started residence in plaint item No. 2 and this permission was given 30 years back. The defendants were residing in the plaint item No. 2 along with Joseph, who died subsequently. The transactions between the plaintiff and the defendants, evidence, tenancy and she is entitled to fixity of tenure and in any view, she is entitled to the Kudikidappu right under the Kerala Land Reforms Act. There were other contentions also.
2. Before the trial court, five issues were framed. The 2nd issue was “whether the first defendant is a Kudikidappukaran in the property.” The third issue was “whether the defendants are liable to be evicted.” Issue No. 2 was referred to the Land Tribunal for a finding under S. 125 of the Kerala Land Reforms Act, here-in-after called ‘the Act’. The Land Tribunal entered a finding that the first defendant is not a Kudikidappukaran. Thereafter the suit was tried on other issues. The plaintiff was examined as Pw. 1 and Exts. A1 to A4 were marked on her side; while the first defendant was examined as Pw. 1 and there was no documents to be marked on her side.
3. The trial court found under issue No. 1 that the plaintiff is the owner of the plaint schedule property and under issues 2 and 5 accepting the finding of the Tribunal, it was found that the first defendant is not a kudikidappukaran in the property and under issue Nos. 3 and 4, it was found that the plaintiff has title and possession over the plaint item No. 1, and on the strength of title, the plaintiff is entitled to a decree for recovery of possession after evicting the defendant from plaint item No. 2. The suit was decreed in the light of the above findings.
4. This decree and judgment were challenged by defendants in appeal and the learned Sub-ordinate Judge, Cochin after hearing both sides dismissed the appeal confirming the decree and judgment of the trial court.
5. This Second Appeal was admitted by my learned brother, who formulated the following as substantial question of law.
“Whether the appellants are entitled to the protection of S. 60 of the Indian Easements Act is the question of law arising in this case and issued notice.”
6. Attacking the decree and judgment of the lower appellate court, the learned advocate appearing for the appellants submitted that the lower appellate court seriously erred in holding that S. 60(b) of the Indian Easements Act does not apply to the facts of this case and the two grounds given by that court for not applying the said provision and granting the benefits thereunder to the appellants are not sound in law, and on the facts of the case.
7. The learned advocate appearing for the respondent strongly contended that the question formulated is really not a substantial question of law but it is only a mixed question of fact and law, that in the absence of any pleadings in this regard and an issue on this point, the lower appellate courts ought not have considered this point and in any view the finding of the lower appellate court on the facts and evidence in the case, that S. 60(b) of the Indian Easements Act has no application to the case on hand is correct and it is not liable to be interfered with.
8. The only point that was urged before the first appellate court was that the licence granted to the first defendant or her predecessor-in-interest to construct item No. 2 building is irrevocable by virtue of the provisions in S. 60(b) of the Indian Easements Act. The learned Sub-ordinate Judge rejected this plea on the ground that S. 60(b) of the Indian Easements Act does not apply when there is a contract to the contrary and that in the present Case, there is a contract to the contrary. The second ground on which this point was rejected by the appellate court was that no plea has been raised by the defendants in this respect before the trial court and no argument in this regard also was addressed there.
9. It is not disputed that where there is a contract to the contrary, S. 60(b) of the Indian Easements Act does not apply. But the learned advocate appearing for the appellants submitted that there is no reliable evidence that there was a contract to the contrary and therefore, this finding of the appellate court is wrong. The counsel referred to the evidence of Dw. 1 that there was no such agreement as alleged. In para 2 of the plaint, it has been specifically stated that the first defendant has agreed to demolish the building in question whenever demanded Pw. 1 has also given evidence in support of it. It is true that Dw. 1 has denied that there was such an agreement. The dispute in this regard is a question of fact depending on the appreciation of evidence. The first appellate court on a due consideration of the evidence in this behalf found that the case put forward by the plaintiff that there is an agreement to the contrary has been proved by evidence of Pw. 1. The counsel for the appellant relied on the statements in para 2 of the plaint in support of his contention that he is entitled to the benefit of S. 60(b). It is true that the statements in para 2 of the plaint show that permission was granted to the first defendant to construct item No. 2 building on condition that she will demolish the building whenever demanded. It was argued on behalf of the appellants that even though there was no pleadings taken as such in the written statement, he is entitled to rely on the pleadings or the facts disclosed in the pleadings of the opposite side. Even if a specific plea has not been taken in the written statement in this regard, if that plea is covered by another issue by implication and the parties knew that the said plea was involved in the trial, then merely because that plea has not been specifically taken in the written statement would not disentitle a defendant from relying on such a: plea. But when a party relies on an admission or a pleading, it must be taken as a whole. The written statement of the defendants was read out in the Court. There is no plea either specifically or impliedly or alternatively taken in the written statement that the licence in question is irrevocable lander S. 60(b) of the Indian Easements Act. There was also no issue framed on this question by the trial court. If really the defendants wanted to rely on this plea and was aware of the plea on the facts of the case, they could have got the issues already amended or filed an application for framing additional issues in this respect. This was not done either in the trial court or before the first appellate court. The main plea of the defendant was that she has got a kudikidappu right and she is not liable to be evicted under the Act. In this regard, the finding of the Land Tribunal which was accepted by the trial court was not challenged before the appellate court as disclosed from para 6 of its judgment. The irrevocability of a licence under S. 60(b) has to be pleaded and proved. The plea that the licence in question is irrevocable by virtue of the provisions under S. 60(b) of the Indian Easements Act was taken for the first time before the first appellate court.
10. In Lakshmi Narain v. State (AIR. 1977 Patna 73), a Division Bench of the Patna High Court had occasion to consider the object and purpose of pleadings. Order 6 Rule 2 and Order 8 Rules 2, 3 and 4 of the Code of Civil Procedure deal with object of pleadings. The Division Bench observed that “the sole object of the pleading is, as was pointed out by the Privy Council in (1895) 22 Ind App 4 (PC), that each side maybe fully alive to the questions that are about to be argued in order that they may have an opportunity to bringing forward such evidence as may be appropriate”. The importance of the pleadings cannot, of course, be ignored, because it is the pleadings that lead to the framing of issues and a trial in every civil case has inevitably to be confined to the issues framed in the suit. The whole object of framing the issues would be defeated if parties are allowed to travel beyond the issues and claim or oppose reliefs on grounds not made in the pleadings and not covered by the issues. Still cases may occur where a particular plea is not specifically included in the issues, and parties might know that in substance the said plea is being tried and might lead evidence about it. It is only in such a case where the Court is satisfied that the ground on which reliance is placed by one or the other of the parties, was in substance, at issue between them and that both of them have had opportunity to lead evidence about it at the trial that the formal requirement of pleadings call be relaxed. (See Ram Manohar v. State of Bihar, AIR. 1966 SC. 735).
11. In Udhay Singh v. M.R Scindia ((1977) 1 SCC 511 : AIR. 1976 SC. 744), the Supreme Court observed: that “according to the cardinal canon of interpretation, a pleading has to be read as a whole to ascertain its true import and it is not permissible to cull out a sentence or a passage and to read it out of the context, in isolation, and although a pleading has to be construed as it stands without addition or substraction of words, or change of its apparent grammatical sense”.
12. In Siddik Mohammed Shah v. Mt. Saran (AIR. 1930 PC. 57), it was observed that “where a claim has been never made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward”. This observation was approved by the Supreme Court in Bhagat Singh v. Jaswant Singh (AIR. 1966 SC. 1861). It is well settled that no evidence can be looked into by the Court for which there is no foundation in the pleadings. (See Nirod Baran Banerjee v. Dy. Commissioner Of Hazaribagh, (1980) 3 SCC 5 : AIR. 1980 SC. 1109).
13. In Dhool Singh v. Bardhu Bai (AIR. 1974 Rajasthan 90), while considering the irrevocability of licence under S. 60, it was observed that the question of irrevocability of licence under S. 60(b) was a mixed question of law and fact as the necessary conditions about the irrevocability of the licence existed or not have to be proved, and it was therefore, necessary for the defendant to have pleaded the necessary facts in bis written statement and to have a proper issue framed. It was also held that in the absence of such plea or issue the courts below were in error in holding that the licence was irrevocable. In the light of the above discussion and findings, this appeal has no merit and the same is hereby dismissed. No costs, in the circumstances.
14. Dismissed.
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