JUDGMENT S.N. Srivastava, J.
1. This second appeal has its origin in the judgment and decree dated 23.3.1988 passed by the Lower Appellate Court in Civil Appeal No. 168 of 1981 whereby the judgment and decree dated 28.10.1980 passed by trial court in original suit No. 1507 of 1970 were set aside.
2. It would transpire from a perusal of the record that the plaintiff instituted suit No. 1507 of 1970 for the relief of mandatory injunction for removal of constructions made in the land displayed in the plaint map i.e. land marked as A.B.C.D.E and F and in the alternative, it was prayed that in case Gher was held not being part of sale deed, a decree for Rs. 3000/- marking return of sale consideration, be passed. To be precise, the plaint allegation is that the plaintiff had purchased Gher marked as A.B.F.E.L from defendant No. 5 Dalel Singh through a registered sale deed dated 2.11.1970 of which the defendant No. 5 had delivered possession to him. Subsequently, it is claimed, the defendants 1 to 4 erected a wall obstructing the plaintiff's access and again raised a Kotha without roof, which resulted in complete closure of plaintiff's access. It is in this background that the suit was instituted by the plaintiff for the reliefs aforestated.
3. The trial court in quintessence held the plaintiff not the owner of the land in question marked by letters A.B.F.L. while deciding issue No. 10. However, suit came to be dismissed in so far as land marked by letters ABFL was concerned. However, the plaintiff was held to be owner of the property marked by letters ABFEL and accordingly, passed the decree of declaration. Plaintiff and defendants filed appeal and cross objections respectively. The lower appellate court, however, disallowed the appeal preferred by plaintiff while the appeal in the form of cross objection preferred by defendants culminated in being allowed.
4. At the time of admission, this Court formulated following substantial question of law for determination.
"Whether the plaintiff can be allowed relief for declaration of title without being a specific prayer in this behalf in the plaint."
5. It would thus appear that the present appeal hinges on a short question for determination by this Court whether the relief for declaration of title without being a specific prayer in the plaint could be allowed.
6. Learned counsel for the appellant-plaintiff minced no words to say that no relief was sought for declaration in the suit in so far as land marked by letters A.B.F.L. in the plaint map is concerned and relief for mandatory injunction was sought by the plaintiff for the land shown by words E.L.C.D. through which the plaintiff had access for egress and ingress to the property displayed by letters A.B.F.E.L. However, he canvassed that relief of declaration could be granted by the trial court as entire claim of plaintiff hinged on the sale deed of the said land. Lastly, the learned counsel submitted that in case, the Court, in its discretion, finds the plaintiff not entitled to relief claimed in relation to land shown by letters ABCDEFL, observation made by the lower appellate court in its judgment which operates to the detriment of the rights of the plaintiff may be expunged from the record.
7. I have been taken through the record and from a perusal of the findings recorded by the two courts below, it transpires that both the courts below recorded a concurrent finding that the land marked by letters E.L.C.D. which is claimed to be a Rasta, was never used as Rasta nor was it part of sale deed. Both the courts below also converged to the conclusion that the plaintiff had no easementary right over the land shown by letters E.L.C.D. While converging to the conclusions aforestated, I would not scruple to say, the courts below appraised the evidence on record in correct perspective which do not suffer from any infirmity and hence, findings being interknit with cogent and convincing reasons, no interference is called for.
8. Coming to the next submission of the learned counsel for the appellant that observation made by the lower appellate court pertaining to land marked by letters A.B.C.D.E.F.L. were supererogatory and would operate to the detriment to the plaintiff's right, I am of the view that lower appellate court rightly converged to the view that the trial court exceeded the bounds of jurisdiction in making declaration pertaining to land for which no relief had been claimed by the plaintiff in the suit. In connection with this proposition, it may be added here for emphasis that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other party and every such material proposition should form a subject of distinct issue. The object of framing issue may also be reckoned with which appears to be to draw attention of the parties to the principal questions on which they may be at variance. Further, the court is under a duty to frame proper issues on the basis of materials as referred to in Order XIV, Rule 3 C.P.C. However, it is forbidden for a court to decide on an issue not arising out of pleading of parties nor an issue can be framed on a point not pleaded in the plaint. It is the general law that relief to be granted by a court must be based on pleadings. Reverting to the facts of the instant case, it transpires that the relief prayed for in the suit was confined to land marked by letters E.L.C.D. and not the land marked by letters A.B.C.D.E.F.L. and as such, there was no occasion for the trial court to have granted the relief of declaration in relation to land ABCDEFL. It should be borne in mind that 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 considerations of prejudice and in doing justice to a party the court cannot do injustice to another. The lower appellate court has rightly called the decision on this aspect as uncalled for.
9. At this stage, learned counsel commiseratingly submitted that the observations embodied in the judgment of the lower appellate court are supererogatory and fraught with consequences, which may impinge upon the rights of the plaintiff. I have carefully considered the consequences that may flow from observations of the appellate court and am of the view that the observations though made in right perspective may best be avoided particularly when it is dreaded that it would operate to the detriment of the rights of a party. I am also of the view that expunction of the observations in question contained in the body of the judgment of the lower appellate court would not visit with injustice upon the rights of the other party as relief sought was for mandatory injunction and it was nowhere sought to decide the title. In this perspective, it is ordered that the observations of the lower court below about title of the plaintiff may be read as pertaining to land marked by words C.D.E.L only.
10. As a result of foregoing discussion, the second appeal fails and is dismissed accordingly.