(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) Admit.
With consent of learned advocates for the parties, we have taken up this appeal for final disposal today.
We have heard Mr. NJ Shah, learned AGP for the State and Mr. AY Bachani, learned Counsel for the respondent. This LPA has been filed challenging the judgment of learned Single Judge dated 25/10/2010 passed in SCA no. 13680/2010.
The brief facts of the case are that the respondent purchased land bearing block no. 81 admeasuring hectare 1-41(A) - 64 sq. mtr. from one Thakor Amarsing Talaji by means of registered sale deed dated 1/12/1987. Copy of the registered sale deed is on record, which mentioned that the petitioner has purchased an old tenure land. The name of the petitioner was recorded in village form no. 6 being entry no. 256 and it was certified by Mamlatdar on 20/1/1989. It appears that the vendor of the land made a complaint to the Deputy Collector that he has sold new tenure land to respondent Mr. Haribhai Raichandbhai Gothi.
Therefore, Deputy Collector had issued notice on 15/5/2007 stating that sale of new tenure land is not permissible and only on the basis of complaint, Deputy Collector held that the land was new tenure and the sale is not permissible without prior permission from the State Government and without taking into consideration, the mischief was tried to make by Thakor Amarsing Talaji, who has sold land to the respondent, by lodging false complaint when the sale deed has been mentioned that land was old tenure.
The Deputy Collector passed an order on 28/6/2007 and directed that the land being new tenure land to be handed over to the State Government. The order of Deputy Collector was challenged in Appeal no. 33/2007 before the Collector, who has also rejected the appeal on 19/3/2008. Thereafter, respondent filed revision application before the Special Secretary, Revenue Department, which was also rejected on 19/9/2008. All these three orders were challenged by respondent before learned Single Judge. The learned Single Judge without going into the factual aspect of the matter and taking into consideration facts of the case held that vendor of the land has committed mischief. Learned Single Judge did not enter into the merits of the case that the vendor of the land namely Thakor Amarsing Talaji has committed mischief on the respondent and has filed false complaint before Deputy Collector. In as much as, in the sale deed, he himself admitted fact that the land is being old tenure land. Further, learned Single Judge failed to appreciate that the sale deed was executed on 1/12/1987 and name of the respondent was mutated on 20/1/1989. The complaint was made in the year 2007 by the vendor of the respondent after 19 years of sell to the respondent. It is prima facie illegally held that land is being a new tenure land after 19 years, precisely relying on the mischievous person.
Mr.
N. J. Shah, learned AGP has placed reliance on the decision of the Apex Court in case of Ritesh Tiwari Vs. State of U. P. [2010 (10) SCC 677], and the decision of National Textile Co. Ltd Vs. Nareshkumar B. Jagad [(2011) 10 SCALE 28], and has urged that it was neither pleaded in the writ petition nor any relief was claimed in the representation that if the appellant deposits amount of the premium/conversion of the charges for the land in dispute, his application may be considered by Collector, Banaskantha and in absence of pleadings, learned Single Judge was not justified to issue such a direction. It has been held by the Apex Court in the decision of Ritesh Tiwari Vs. State of U.P. [2010 (10) SCC 677] in para 24 and 25 as under:
"24.
It is a settled proposition of law that a party has to plead the case and produce/adduce sufficient evidence to substantiate his submissions made in the petition and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. In Bharat Singh v. State of Haryana (1988) 4 SCC 534, this Court has observed as under: (SCC p.543,Para 13) :-
"13.
... In our opinion, when a point, which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or the counter-affidavit, as the case may be, the Court will not entertain the point. There is a distinction between a hearing under the Code of Civil Procedure and a writ petition or a counter- affidavit. While in a pleading, i.e. a plaint or written statement, the facts and not the evidence are required to be pleaded. In a writ petition or in the counter affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it." (Emphasis added) (See also Vithal N. Shetti v. Prakash N. Rudrakar (2003) 1 SCC 18; Devasahayam v. P. Savithramma (2005) 7 SCC 653 ; Sait Nagjee Purushotham and Co. Ltd. v. Vimalabai Prabhulal (2005) 8 SCC 252 and Rajasthan Pradesh V. S. Sardarshahar v. Union of India (2010) 12 SCC
609.)
25. The present appeal definitely does not contain pleadings required for proper adjudication of the case. A party is bound to plead and prove the facts properly. In absence of the same, the court should not entertain the point."
The Apex Court in National Textile Corporation Limited v. Nareshkumar Badrikumar Jagad and others (2011) 12 SCC 695 in paragraph 12 to 19 held as under:-
"12.
Pleadings and particulars are necessary to enable the court to decide the rights of the parties in the trial. Therefore, the pleadings are more of help to the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition that "as a rule relief not founded on the pleadings should not be granted." A decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ. (Vide: M/s. Trojan & Co. v. Nagappa Chettiar, AIR 1953 SC 235; State of Maharashtra v. M/s. Hindustan Construction Co. Ltd., (2010) 4 SCC 518; and Kalyan Singh Chouhan v. C.P. Joshi, (2011) 11 SCC 786).
13. In Ram Sarup Gupta v. Bishun Narain Inter College (1987) 2 SCC 555, this Court held as under: "6...... in the absence of pleadings, evidence if any, produced by the parties cannot be considered...... no party should be permitted 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."
Similar view has been reiterated in Bachhaj Nahar v. Nilima Mandal (2008) 17 SCC 491.
14. In Kashi Nath v. Jaganath, (2003) 8 SCC 740, this Court held that where the evidence is not in line of the pleadings and is at variance with it, the said evidence cannot be looked into or relied upon. Same remain the object for framing the issues under Order XIV CPC and the court should not decide a suit on a matter/point on which no issue has been framed. (Vide: Biswanath Agarwalla v. Sabitri Bera (2009) 15 SCC 693; and Kalyan Singh Chouhan (supra).
15. In Syed and Co. v. State of J & K, 1995 Supp (4) SCC 422, this Court held as under:
"7...Without specific pleadings in that regard, evidence could not be led in since it is settled principle of law that no amount of evidence can be looked unless there is a pleading.
8. Therefore, without amendment of the pleadings merely trying to lead evidence is not permissible."
16. In Chinta Lingam v. The Govt. of India (1970) 3 SCC 768, this Court held that unless factual foundation has been laid in the pleadings no argument is permissible to be raised on that particular point.
17. In J. Jermons v. Aliammal (1999) 7 SCC 382, while dealing with a similar issue, this Court held as under: 31. .... there is a fundamental difference between a case of raising additional grounds based on the pleadings and the material available on record and a case of taking a new plea not borne out of the pleadings. In the former case no amendment of pleading is required, whereas in the latter it is necessary to amend the pleadings...
32. ...The respondents cannot be permitted to make out a new case by seeking permission to raise additional grounds in revision."
18. In view of the above, the law on the issue stands crystallised to the effect that a party has to take proper pleadings and prove the same by adducing sufficient evidence. No evidence can be permitted to be adduced on a issue unless factual foundation has been laid down in respect of the same.
19. There is no quarrel to the settled legal proposition that a new plea cannot be taken in respect of any factual controversy whatsoever, however, a new ground raising a pure legal issue for which no inquiry/proof is required can be permitted to be raised by the court at any stage of the proceedings. (See : M/s Sanghvi Reconditioners Pvt. Ltd. v. Union of India (2010) 2 SCC 733; and Greater Mohali Area Development Authority v. Manju Jain (2010) 9 SCC 157]."
Therefore, the law is settled by the Apex Court in absence of pleadings made in the writ petition or relief claimed in the writ petition, the writ Court would not be justified in granting relief to the petitioner.
It appears to us that the learned Single Judge since decided to permit the petitioner/ respondent to file an application to decide the amount of premium or the conversion charges at the correct rate. He has not considered the argument on merits advanced by learned Counsel for the petitioner /respondent. As we do not find any discussion in the judgment of learned Single Judge on merits and he has not passed a reasoned order in absence of which we are not able to arrived at the conclusion as to why the writ petition was dismissed. Therefore, in view of argument of learned AGP since the matter is required to be remanded back to the learned Single Judge. Interest of justice, would be served if we request learned Single Judge to decide the question on merits as to whether the vendor of the petitioner could file a complaint after 19 years and only on that basis the old tenure land could be held to be new tenure land.
In the result, this appeal succeeds and allowed. The order passed by learned Single Judge dated 25/10/2010 in Special Civil Application no. 13680/2010 is set aside. The matter is remanded back to the learned Single Judge to decide writ petition afresh after hearing learned counsel for the parties on merits without being influenced by any observation of this judgment.
Today, main appeal is disposed of, therefore, civil application does not survive. Hence, it is disposed of.
(V.M.SAHAI, J) (A.J.DESAI, J) *asma Top