Appeal from appellate decree no. 69 of 1995 -------- Against the judgment and decree dated 30.1.1995 passed by Sri Anant Prasad Srivastava, District Judge, Saran in Title Appeal No.15 of 1991 affirming the judgment and decree dated 30.11.1990 passed by Sri Rajendra Prasad, 6th Subordinate Judge, and Chapra in Title Suit No.10 of 1986. ------------- Arun Kumar Srivastava ; Defendant-Appellant. Versus Sri Sidheshwar Prasad Verma and Anr; Plaintiffs-Respondents ------------- For the Defendant-Appellant;M/S Shambhu Sharan Singh and Sanjay Kumar Advocates. For the Plaintiffs-Respondents; M/S Vijay Kumar Prasad and Sanjay Kumar advocates. -------------- PRESENT THE HON’BLE MR.JUSTICE GHANSHYAM RASAD. Ghanshyam Prasad,J. This second appeal has been preferred by the defendant- appellant against the judgment and its decree dated 30.1.1995 passed by the District Judge,Chapra in Title Appeal No.15 of `1991 thereby he has affirmed the judgment and decree dated 30.11.1990 passed by the Subordinate Judge-VI, Chapra in Title Suit No.10 of 1986. 2. The plaintiffs- respondents filed the aforesaid suit against the defendant-appellants, Laxmi Devi and others for eviction from suit premises as also for delivery of possession over the same. The case of the plaintiffs in brief is that the suit premises detailed in Schedule-1 of the plaint was originally ancestral property of the defendants and their brother Purusottam Prasad Srivastava.The defendants filed a partition suit no. 24/84 against their brother for partition of suit property. However, the suit was decreed in terms of compromise. The defendants relinquished their share and claim in schedule-1 property in favour of their brother and in lieu of that their brother promised to pay Rs.10, 000/- to each. Later on , Purusottam Prasad Srivastava sold - 2 - the house in question in favour of the plaintiffs through sale deed dated 13.7.1984. The plaintiffs being purchasers came in possession through tenants. At that time the defendant-appellant and Laxmi Devi, were in possession of one room, Purusottam Prasad Srivastava over one room and rest two rooms were in possession of tenants. The tenants agreed to pay rent to the plaintiffs-purchasers. Later on Purusottam Prasad Srivastava and tenants vacated the rooms but those rooms were forcibly occupied by the defendants. However, later on through well wishers of the parties the defendants agreed to vacate the entire suit premises within one year and till then they would pay rent at the rate of Rs.450/- per month. The rent was also paid from October, 1985 to December, 1985 and thereafter they stopped payment of rent. Further case is that the plaintiffs needed the premises to run the pathological laboratory but in spite of repeated demands the defendants neither vacated the premises nor paid rent. Hence the suit. 3. The defendant no.2, Laxmi Devi, neither contested the suit nor filed written statement. Only defendant no.1, Radha Devi (appellant herein) filed written statement and contested the suit. According to her, Schedule-1 property originally belonged to her father, Jagannath Lal, who died leaving behind two daughters; the appellant, Laxmi Devi and a son Purusottam Prasad Srivastava. They inherited and came in possession over the Schedule-1 property. The defendants filed partition suit no.24/84 for partition of Schedule-1 property. However, taking advantage of defendant’s illness her brother got a compromise decree in the suit by filing false and fabricated compromise petition. Later on, the defendants filed title suit no.81/84 for setting aside the compromise decree. - 3 - 4. Further case of the defendan-appeallant is that she neither received Rs.10, 000/- in lieu of share nor relinquished her right in favour of her brother, Purusottam Prasad Srivastava. Her brother had no right to execute sale deed in respect of Schedule-1 property in favour of plaintiffs particularly in respect of share of his sisters. They held possession not as tenant but as owner. She further denied about the payment of rent to the plaintiffs. She also denied about the forcible possession and averred that the tenants voluntarily handed over possession to them. She also denied about the intervention of well wishers. 5. The lower appellate court framed as many as five issues but only two issues are important which run as follows; Issue no. III ; Is there relationship of landlord and tenants between the plaintiffs and defendants ? Issue no. IV ; Are plaintiffs entitled to eject the defendants from the disputed house ? The trial court ultimately held that the compromise petition filed in partition suit was genuine and valid. Rs.10, 000/- was paid by Purusottam Prasad Srivastava to the defendants and the plaintiffs acquired valid right and title over the suit property. He further held that possession of defendants was not as tenant. However, he granted decree of ejectment as equitable relief under Order VII Rule 7 of the Code of Civil Procedure and directed the defendants to vacate the suit premises within sixty days failings which to pay damage of Rs.4000/- per month. 6. Title suit no.81 of 1984 was heard along with above suit and the same was dismissed through separate judgment in which it was held that the compromise decree was valid and genuine. - 4 - 7. The defendants being aggrieved by the judgment of trial court preferred two appeals bearing Title Appeal No.14/91 arising out of title suit no. 81/84 and Title Appeal No.15/91 arising out of title suit no. 10/86. Both appeals were heard together and disposed of by common judgment which is under challenge before this Court. Both appeals have been dismissed and judgment of lower trial court has been upheld. However, the learned Additional District Judge has held that there was relationship of the landlord and tenant and accordingly directed the defendants to vacate the suit premises. 8. At the time of admission of Second Appeal the following questions of law have been formulated for decision of this appeal;- (i) Whether it was open for the trial court to make out a case in faovur of the plaintiff-respondents which was not pleaded? (ii) Whether the appellant could have resided in the house in question in her own right in view of the provisions contained in section 23 of the Hindu Succession Act? (iii) Whether the judgment of the courts below are vitiated on account of non-consideration of the documents, in particular, a vital document, namely, exhibit-9? (iv) Whether the compromise decree would be enforceable against the appellant when the terms and conditions have not been complied in their entirety? Issue no.(iv);- The admitted fact is that partition suit no.24/84 filed by the defendant-appellant was decreed in terms of compromise (Ext. 5). By virtue of compromise petition the sisters relinquished their right in favour of their brother, Purusottam Prasad Srivastava. In lieu of that Purusottam Prasad Srivastava agreed to pay Rs.10, 000/- each to both the sisters. The defendant-appellant filed Title Suit No.81/84 in order to set aside the compromise decree. Admittedly the same has been dismissed. 9. Submission of learned counsel for the appellant is that the amount of Rs.10, 000/- was never paid to the defendants and, - 5 - therefore, the compromise is deemed to be void and illegal and not binding upon the defendants. However, it appears that there is concurrent findings of fact of both courts on this point. Both courts have held the compromise as genuine, valid and legal. The trial court has also held in paragraph 45 of the judgment that Purusottam Prasad Srivastava, as per terms of compromise, paid Rs.10, 000/- each to Laxmi Devi and Radha Devi. The lower appellate court has also discussed this point and has not disturbed the findings of the trial court. 10. Apart from the above, it is settled law that when compromise decree is acted upon and the parties have derieved benefit under it, the compromise decree is binding upon them and they subsequently cannot challenge its validity. In this case also as per concurrent findings the defendants derieved benefit under compromise decree by accepting Rs.10, 000/-, therefore, now the defendants cannot challenge compromise decree. Order XXIII Rule 3(A) C.P.C. also prohibits the parties to file any suit to set aside compromise decree on the ground that the same was not lawful. 11. In view of above, this point is answered against the defendant-appellant and in favour of plaintiff-respondents. Issue nos. (i), (ii) and (iii) The plaintiff-respondents filed the suit for eviction of the defendants on the ground of tenancy. The case of the plaintiffs was that they acquired title over the suit premises by virtue of purchase from the brother of the defendants, namely, Purusottam Prasad Srivastava. The defendants were alleged to be tenants on monthly rental of Rs.450/- per month. The foundation of title of Pursuttom - 6 - Prasad Srivastava was said to be compromise decree passed in partition suit no.24/84. Ext. 5 is the compromise petition which has been found genuine, valid and legal by both lower courts. The contents of Ext.5 would go to show that defendants admitted that the suit premises was personal property of Purusottam Prasad Srivastava from which they had/have no right or title. Accordingly, they also relinquished all claims from the suit property. Submission of learned counsel for the appellant is twofold; first submission is that the defendants being the daughter have a right of residence in the house along with their brother and, therefore, they cannot be evicted. For that reliance has been placed on Section 23 of Hindu Succession Act, 1956. Second submission is that the trial court committed error of law. The suit was for eviction alleging the defendants as tenants. The trial court held that the defendants were not tenants but in spite of that by making a third case decreed the suit for eviction of the defendants. The lower appellate court also committed error in holding the defendants as tenants against the reasoned findings of the trial court, which is illegal and bad in law. 12. It appears that both submissions of learned counsel for the appellant are not tenable either on facts or law. Ext. 5, the compromise petition would go to show that the defendants themselves admitted that the suit property was personal property of Purusottam Prasad Srivastava and they had no right or title over the same. In such circumstances Section 23 of Hindu Succession Act is not applicable in this case. Section 23 of the Act runs as follows; “ Section 23-.Special provision respecting dwelling houses;- Where a Hindu intestate has left surviving him or her both male and female heirs specified in class 1 of the Schedule and his or her property includes a dwelling house wholly occupied by members of his or her family, then, notwithstanding anything - 7 - contained in this Act, the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein; Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling house only if she is unmarried or has been deserted by or has separated from her husband or is a widow” 13. It appears from the judgment of the trial court that though he did not find the defendants as tenants but their possession was found illegal and accordingly decree for eviction was passed in faovour of the plaintiffs under Order VII Rule 7 of the Code of Civil Procedure. The plaintiffs being the purchasers of suit premises were declared the rightful owners of the disputed property. 14. In view of the above facts as well as after giving thoughtful consideration on the pleadings of the parties as also the evidence adduced on behalf of the parties, I am of the view that the trial court was perfectly justified in passing the decree for eviction under Order VII Rule 7 of the Code of Civil Procedure even though the defendants were not found tenants. 15. The scope of Order VII Rule 7 of the Code of Civil Procedure has been elucidately considered by this Court in a decision reported in AIR 1986 Patna 78 (Raghubar Dayal Prasad Vs. Ramekbal Sah). The decision is based on Supreme Court decision reported in AIR 1966 Supreme Court 735 (Bhagawati Prasad Vs. Chandramaul). In paragraphs 9, 14 and 15 it has been held as follows; Para 9- Order 7, Rule 7 of the Code runs thus- “Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any - 8 - relief claimed by the defendant in his written statement.” The portion underlined has been so done by me for the sake of emphasis. This rule statutorily incorporates on equitable relief to be granted in such cases to the parties concerned. It has the definite object of avoiding unnecessary multiplicity of suits in cases where relief can be granted on the facts and in the circumstances of a particular case even if not so distinctly pleaded nor a relief sought on such facts. This provision of the Code has been the subject matter of consideration, discussion and decision in a large number of cases, some of which I shall refer hereinafter. Para 14- Mr. Angad Ojha, learned counsel for the respondent placed reliance on a decision of the Supreme Court in the case of Bhagwati Prasad V. Chandramaul AIR 1966 SC 735. On a close examination of the principles laid down by the Supreme Court in that case I think even the Supreme Court has taken the view on this question of law in consonance with the decisions of the High Courts. It was in the first instance held by the Supreme Court that undoubtedly if a party asks for a relief on a clear and specific ground, and in the issues or at the trial, no other ground is covered either directly or indirectly or by necessary implication, it would not be open to the said party to attempt to sustain the claim on a ground which is entirely new. But in considering the application of this doctrine to the facts of a particular case Court must bear in mind the other principle that considerations of form cannot override the legitimate consideration of substance. Elaborating the last part of the previous sentence it has been laid down ultimately that if a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the tile of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it that undoubtedly would be a different matter. 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 one party the Court cannot do injustice to the other. That case before the Supreme Court arose from a suit for ejectment wherein the defendant admitted the title of the plaintiff in regard to the plot and pleaded that he was to remain in possession of the house until the amount spent by him in its construction was retuned by the plaintiff. The plaintiff led evidence about the tenancy set up by him and the defendant led evidence about the agreement on which - 9 - he relied. Both the pleas were clear and specific and the common basis of both the pleas was that the plaintiff was the owner and the defendant was in possession by his permission. In such a case the relationship between the parties would be either that of a landlord and tenant, or that of an owner of property and a person put into possession of it by the owner’s license. No other alternative was logically or legitimately possible. Para 15- The principles followed in the various cases of the High Courts can now be said to be set at rest by the stamp of approval affixed to them by the Supreme Court in Bhagwati Prasad’s case (AIR 1966 SC 735).” 14. However, the above findings of the trial court has been impliedly reversed by the lower appellate court. The lower appellate court held that the defendants as tenants defaulted in making payment of rent. On this ground the decree passed by the lower court has been affirmed. The findings of the lower appellate court on this point have not been challenged nor any substantial question of law has been formulated against this finding. Apart from it, on going through the judgment of lower appellate court it would appear that findings of the appellate court are perfectly justified. He has given findings after consideration of oral as well as documentary evidence adduced by the parties. Learned counsel for the appellant has failed to show any infirmity in the findings in order to justify interference. 15. The other substantial question of law as formulated is non-consideration of Ext. 9. Ext-9 series is enlarged photograph of L.T.I of Radha Devi. The report of the finger expert is Ext.10. All those enlarged photographs have been marked as Q1 to Q 5. It appears that those documents have been considered by the lower court in paragraphs 18 of the judgment and has given specific findings which have been affirmed by the lower appellate court. Thus, apparently it is not correct to say that Ext. 9 series have not been considered. 16. In view of the above discussions, all points formulated - 10 - in this Second Appeal are answered in negative and against the defendant-appellant. 17. In the result, this appeal is dismissed on contest with cost. Lawyer’s fee Rs.25-/ (Two hundred and fifty) and lawyer’s clerk’s fee Rs.50/- (Fifty) allowed. PATNA HIG H COURT, DATED 28TH JULY,2008, N.A.F.R/B.JHA (Ghanshyam Prasad, J.)