Judgment:
M.L. Visa, J.
1. This is an order on hearing the appeal under Order XLI, Rule 11 of CPC.
2. Appellant Radha Tamolin filed Title Suit No. 185 of 1990 against respondents Durgawati Devi and Chhedi Sao for declaration of her title over the land described in schedule I of plaint (hereinafter referred to as the 'Suit land') and also for removal of encroachment from the suit land within the time fixed by the Court failing which removal of encroachment through the process of Court.
3. The case of appellant-plaintiff was that the land measuring five decimals of land of plot No. 715 under khata No. 156 with house and sahan was recorded in the name of Raghunath Tamoli and after his death, his widow Budhiya Tamolin inherited this land and came in possession over the same. She after some time through registered deed of gift, gifted this land to her brother Mahadeo Tamoli. Thereafter, in a partition which took place between Mahadeo Tamoli and his sister Butani Tamolin, Mahadeo Tamoli was allotted 2-1/2 decimals of the aforesaid land and he came in possession over the same which is the suit land. Mahadeo Tamoli sold this suit land through registered sale deed to Shri Makhan Lal Agarwal, Most Bibi Hasin Nisha and Reyasat Hussain and put the purchasers in possession and after sometime, these purchasers sold the suit land to plaintiff-appellant through registered sale deed dated 8.10.1966 for valuable consideration and put the plaintiff-appellant in possession. In the year, 1987-88, defendants made encroachment over the suit land and request of appellant to respondents for removing encroachment was put off and lastly on 12.9-1990, respondents refused to remove encroachment.
4. The case of defendants was that although the land of plot No. 715 under khata No. 156 measuring five decimals of land was recorded in the name of Raghunath Tamoli but he had no source of income so he was maintained by his sister Butani Devi and her husband Munshi Tamoli and wife of Raghunath Tamoli, namely, Budhia had died during the lifetime of Raghunath who had no issue and Raghunath had practically relinquished his interests in the aforesaid land in favour of his sister and in fact had put his sister in possession of the same and also recognized her as a full owner of his property over the land so Butani Devi was exercising right or possession over the house as its full-fledged owner from the very lifetime of Raghunath and after the death of Raghunath, she inherited the property being the sole heir of Raghunath. Their further case was that the question of inheriting the property by wife of Raghunath after the death of Raghunath did not arise because as stated above, wife of Raghunath had already died during the lifetime of her husband. The defendants further denied assertion of plaintiff that Budhia had ever executed any deed of gift and according to them, the alleged deed of gift must have been brought into existence by setting some imposters. They also denied the case of appellant that a partition between Mahadeo Tamoli and Butani Tamolin had taken effect in which they both got 2-1/2 decimals of land each. The defendant also denied the allegation of making encroachment over the suit land.
5. The suit of appellant was decreed on contest with cost by Munsif, Aurangabad in Title Suit No. 185 of 1990 against which respondent-defendants filed Title Appeal No. 46 of 1999/4 of 2000 which was allowed by Additional District Judge VI, Aurangabad and judgment and decree of Munsif, Aurangabad passed in Title Suit No. 185 of 1990 were set aside. Against this appeal of the Court below, appellant has filed the second appeal under consideration.
6. Learned counsel of appellant has submitted that the lower appellate Court, by observing that the deed of registered gift has not been brought on record and this fact alone is sufficient to prove that the story of gift propounded by the plaintiff-respondent is not proved. Non production of original deed of gift or its certified copy in the Court cuts the very root of the story that the land in question was ever given in gift to Mahadeo by Budhia, wife of Raghunath. Had it been a reality then the deed either in original or certified copy must have been filed. Now the plaintiff-respondent has no mouth to say that the same was either misplaced or destroyed or disappeared from the house of Mahadeo. Thus, the story of gift fails. When this story fails, acquiring title on the basis of execution of sale deed by Mahadeo to Makhan Lal Agarwal and others also fails and consequent upon that the story of acquiring title by virtue of sale deeds executed by the Makhan Lal Agarwal and others in favour of plaintiff-respondents also fails.' It has further been argued that on the basis of these observations, lower appellate Court has not accepted the claim of appellant of her title over the suit land. He has further argued that neither the original trial Court nor the lower appellate Court had framed any issue as to deed of gift executed by Budhia Tamolin and judgment of Court below is based on a fact which was not considered as an issue between the parties for determination. He has also submitted that the registered deed of gift has been bought on record by appellant and this Court, after admitting this appeal, can direct the trial Court to allow the parties to lead evidence in support of their respective cases as to this registered deed of gift. I am unable to accept the argument advanced on behalf of appellant. The trial Court on the basis of pleading of parties, framed a number of issues including issue No. 3 which was about the title of appellant over the suit land. Similarly, lower appellate Court also considered the same issues as framed by trial Court and discussed all the issues separately giving its finding like trial Court including issue No. 3 which was for title of appellant over the suit land. The issue deciding title of appellant over the suit land covers within its fold the case of appellant that Budhia, wife of Raghunath Tamoli inherited the land including suit land and after death of her husband, she gifted this property to her brother Mahadeo Tamoli by a registered deed of gift and, thereafter, in a partition between him and his sister Butani Tamolin, the suit land fell in the share of Mahadeo Tamoli who sold this land to Makhan Lal Agarwal, Hasmun Nisha and Reyasat Hussain who, in their turn sold the suit land to appellant. When the appellant has claimed the title over the suit land on the basis of sale deeds executed in her favour by Makhan Lal Agarwal and others who are said to have purchased the land from Mahadeo Tamoli who got the suit land in his share in a partition between him and his sister and this land was earlier gifted to Mahadeo Tamoli by Budhia Tamolin, it was not necessary either for the trial Court or appellate Court to frame separate issue, whether Budhia Tamolin executed a deed of gift, whether suit land fell in the share of Mahadeo Tamoli, whether Mahadeo Tamoli sold the land to vendors of appellant etc because all these were to be considered while deciding the issue which was framed as to title of appellant over the suit land because by giving the history of transactions, as stated above, appellant had claimed the suit land. I, therefore, find no force in the plea of appellant that because no separate issue as to deed of gift was framed by either of the Courts below, therefore, finding of appellate Court that non-production of deed of gift by appellant does not prove his title. This case of respondents-defendant right from the trial Court was that Budhia Tamolin never inherited the lands including suit land of Raghunath Tamolin because she died during lifetime of her husband and there was no occasion for her to execute deed of gift in respect of properties including suit land. In the case of Nagubai Ammal and Ors. v. Shama Rao and Ors., : [1956]1SCR451 , it has been held that :
It was argued for the appellants that as no plea of Us pendens was taken in the pleadings, the evidence bearing on that question could not be properly looked into, and that no decision could be given based on Exhibit J series that the sale dated 30.1.1920 was affected by lis; and reliance was placed on the observations of Lord Dunedin in Siddik Mahomed Shah v. Mt. Saran, 1930 P.C. 57 (1) AIR V 17) (A), that 'no amount of evidence can be looked into upon a plea which was never put forward.
The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto.
7. The lower appellate Court in its judgment has taken note of the fact that appellant during her evidence, has purposely left the story of execution of registered deed of gift by Budhia wife of Raghunath in favour of Mahadeo Tamoli and according to it, it was done because story of execution of registered deed of gift was an imaginary story and because the deed of registered gift never came in existence. It also took note of the fact that no other witness on behalf of appellant was examined on the point of acquiring her title. Be what it may since it was the own case of the appellant that her title was based on a number of transactions between different parties including execution of deed of gift by Budhia Devi in favour of Mahadeo Tamoli and defendants, in their written statement, had challenged the execution of registered deed of gift by Budhia Devi, it was for appellant to lead evidence on this point which she failed to do so. Now at this stage, appellant cannot be permitted to make a prayer for directing the trial Court to take evidence of parties in respect of so-called registered deed of gift executed by Budhia Devi.
8. In view of aforesaid facts. I find that no question of law much less substantial question of law is involved in this appeal. The appeal is hereby dismissed in limine under Order XLI, Rule 11 CPC.