BACHHAJ NAHAR versus NILIMA MANDAL & ANR.

Citation: [2008] 14 S.C.R. 621 · Decided: 23-09-2008 · Supreme Court of India · Bench: R.V. RAVEENDRAN · Disposal: Appeal(s) allowed

Cited by 12 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2008] 14 S.C.R. 621 
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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 
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plaintiffs not owners of property, granted relief based on 
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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 
). JI 
reserved liberty to plaintiffs to file separate suit for easement. 
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 
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1966 SC 735; Ram Sarup Gupta (dead) by LRs. vs. Bishun 
Narain Inter College AIR 1987 SC 1242 - referred to. 
621 
H 
A 
B 
622 
SUPREME COURT REPORTS 
[2008] 14 S.C.R. 
CASE LAW REFERENCE 
AIR 1963 SC 884 
Referred to. 
Alf11966 SC 735 
Referred fo. 
AIR. 1987 SC 1242 
Referred to. 
Para 11 
Para 11 
Para 11 
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 
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R. V. RAVEENDRAN J. 1. Leave granted. Heard the 
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learned counsel. For convenience, the parties will be referred 
to also by their ranks in the suit. 
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The facts 
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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 
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 1 O" 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 
owners in possession of the suit property; (b) the 
defendants do not have any right, title or interest or 
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possession in respect of suit property; and (c) the 
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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 
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 
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s

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