( 1 ) sa138.05 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 138 OF 2005 WITH CIVIL APPLICATION NO. 1366 OF 2005 AND CIVIL APPLICATION NO. 8748 OF 2006 1. Karbhari s/o. Tulshiram Jadhav .. Appellants Age. 51 Years, Occ. Agri., R/o. Agar-Saigaon, Tq. Vaijapur, Dist. Aurangabad. 2. Ghamaji s/o. Karbhari Jadhav Age. 31 years, Occ. Agri., R/o. Agar-Saigaon, Tq. Vaijapur, Dist. Aurangabad. 3. Parasram s/o. Karbhari Jadhav, Age. 28 years, Occ. Agri., R/o. Agar Saigaon, Tq. Vaijapur, Dist. Aurangabad. 4. Punjaram s/o. Madhav Jadhav, Age. 46 years, Occ. Agri., R/o. Agar-Saigaon, Tq. Vaijapur, Dist. Aurangabad. 5. Dagdu s/o. Yadav Jadhav, Age. 41 years, Occ. Agri., R/o. Agar-Saigaon, Tq. Vaijapur, Dist. Aurangabad. Versus Kacharabai @ Dhrupadabai w/o. Vitthal .. Respondent Kotade, Age. 61 years Occ. Agri., R/o. Sade, Tq. Kopargaon, Dist. Ahmednagar. ( 2 ) sa138.05 Mr. R.L.Kute h/f. Mr. R.N.Dhorde, Advocate for the appellants. Mr. S.T. Shelke, Advocate for sole respondent. CORAM : A.V. NIRGUDE, J. DATED : 06.09.2011 ORAL JUDGMENT :- 1. In this Second appeal, at the time of admission, the following substantial questions of law were noticed and framed. They are as under :- (1) Whether the Courts below are right in holding that the respondent/original plaintiff was entitled to share without recording a positive finding that the father of the plaintiff Asaram died after 1956, the year of enactment of Hindu Succession Act? (2) Whether on the basis of evidence on record, it is proved that the father of the respondent i.e. Asaram died after the year of commencement of the Hindu Succession Act, 1956? 2. However, after hearing submissions of the Counsels for the parties, to my mind the substantial question of law in this case is - Whether the appellants/ defendants could have raised plea which is not pleaded? 3. The facts leading to this litigation are simple and can be stated as under :- 4. One Gajaba was owner of the suit-land. He had three sons, namely, Tulshiram, Kashiram and Asaram. Asaram is survived by the respondent/plaintiff whereas ( 3 ) sa138.05 Tulshiram and Kashiram were survived by the appellants/defendants, who are cousins inter-se. Asaram’s daughter, the respondent filed suit in the year 2000 for partition and separate possession of her share in the suit property. She filed this suit in respect of three lands situated at village Agar-Saigaon, Tal. Vaijapur, Dist. Aurangabad, in the year 2000. She said that the suit-lands were ancestral joint Hindu family property. She also asserted that no partition had taken place between the brothers, namely, Asaram, Tulshiram and Kashiram. She said that after her marriage other members of the joint Hindu family were giving her share in the crops but since they had stopped doing so, she filed suit in the year 2000. 5. The appellants/defendants took up a stand that partition between Asaram, Kashiram and Tulshiram took place way back in 1933-34 and that certain lands at village Talegaon, Tq. Kopargaon, Dist. Ahmednagar, were allotted to the share of Asaram. They further suggested that Asaram during his lifetime sold away his property due to his drinking habit and so, the respondent/ plaintiff would not get any share in the suit property. The Courts below did not accept this defence on facts. However, a very peculiar line of cross-examination was adopted when respondent/plaintiff entered into the witness box. She narrated her case as per her pleadings ( 4 ) sa138.05 and suggested further that her father Asaram died sometime in 1965 or so and she said that until her father’s death, the family of Asaram, Tulshiram and Kashiram was joint. But, in the cross-examination she was asked about the year of her wedding and she answered that she was married in 1945. The appellants’ advocate probably asked her further about her father’s status at that time and she answered that at that time her father was not alive. In view of this admission, her case stated in the examination-in-chief that her father died sometime in 1965 or so was belied and the appellants’ advocate could bring on record that Asaram probably died prior to 1956. In view of this so called admission, the appellants’ submission at the time of arguing the first appeal was that if the respondent/plaintiff’s father died in 1945, his share in the suit property would devolve on his coparceners by survivorship and so the respondent, his daughter would not get any share in it. The learned Judge of the First Appeal Court rejected this submission mainly on the ground that this ground was never pleaded in defence. Therefore, the question is – Whether a totally new and alien plea can be raised as defence? 6. The learned Counsel appearing for the appellants submitted that his client could raise such plea even though they had not pleaded this plea. In order to get support for his submission, he placed reliance on Supreme ( 5 ) sa138.05 Court case in the case of Bhagwati Prasad Vs. Chandramaul, AIR 1966 S.C.735(1). Having gone through this judgment I realized that the ratio laid down in this judgment is completely inapplicable to this case. In the reported case the plaintiff had filed suit for eviction of his tenant. The suit was decreed and at the first appeal stage the High Court held that the plaintiff could not have proved his case of tenancy, but held in the alternative that the plaintiff could prove that the defendant was his licensee and did not disturb the decree of eviction. This was further challenged before the Supreme Court and the submission made before the Supreme Court was as follows. “The High Court was not permitted to make a new case for the plaintiff holding that even though the plaintiff had failed to prove his case of tenancy, he could prove his case of alienation which was never pleaded by him.” The Supreme Court did not accept this argument and held 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.” 7. I am afraid, this ratio by no stretch of imagination can be applied in this case. The ground which is sought to be raised by the appellants/defendants cannot be said to be an implied one. It cannot be ( 6 ) sa138.05 assumed that they could have raised such plea for the first time when the respondent/plaintiff went in the witness box. In other words the new ground of defence (new plea) was not in existence at that time. In such situation I think the question that was asked to the respondent/plaintiff about the year of her marriage and by implication the year of death of her father was irrelevant. The admission in respect of death of Asaram made by the respondent/plaintiff thus was an irrelevant fact and ought to be ignored. In other words this new plea of defence of the appellants was inconsistent with their case. The Supreme Court in the above mentioned judgment has referred to a judgment of the Supreme Court in the case of Sheodhari Rai Vs. Suraj Prasad Singh, AIR 1954 SC 758. The facts of that case were probably quite similar to the facts of this case. In that case the defendant in his written statement set up a title to the disputed land as the nearest reversioner. He failed to prove this case. The Supreme Court held that in such situation the Court would not permit him to make out a new case which is not pleaded in the written statement and which is wholly inconsistent with the title set up by the defendant in the written statement. In this case also the defence taken by the appellant was that the partition had taken place previously. If they failed to prove the same, they cannot be allowed to take inconsistent plea ( 7 ) sa138.05 that the plaintiff is not entitled to partition because her father died prior to 1956 and the law that prevailed then would not give her right to partition. 8. The learned advocate appearing for the appellant also asserted that the respondent/plaintiff ought to have proved her case on the basis of her own evidence. He thereby suggested that the plaintiff ought to have proved that since her father died after 1956, she was entitled to partition. I am afraid, this was not expected of the plaintiff because the appellants/defendants did not dispute her right of partition. They simply pleaded that she would not get partition because her father was already given his share in the joint family property. In view of this, the appeal should fail. The Second Appeal is dismissed. 9. In view of dismissal of the Second Appeal, connected Civil Applications do not survive and stand disposed of. 10. At the request of learned Counsel for the appellant, the stay granted to the execution of decree shall continue for a period of eight weeks from today. [A.V. NIRGUDE, J.] snk/2011/SEP11/sa138.05ok