Ramaswami, J.@mdashThis Second Appeal is preferred against the Decree and Judgment: of the learned District Judge of Chingleput in A.S. No.
290 of 1953, reversing the Decree and Judgment of the learned District Munsif of Trivellore, in O.S. No. 117 of 1952.
2. The facts of this case can be easily followed if we take on hand the sketch annexed to this judgment for reference.
3. The case for the plaintiff is : The suit property marked as ABCD in the annexed sketch is owned in common by the plaintiff and the defendants.
The said plot ABCD originally belonged to the plaintiff''s predecessors-in-title who owned the properties east of ABCD and to the defendants.
The plot ABCD had been set apart as a passage by those persons for reaching their houses and sites to the east and south thereof and for taking
their cattle, carts, etc. The plaintiff who has purchased the property east of ABCD claims to have become the owner of ABCD in common with
the defendants and to be entitled to the right of taking his cattle, cart, etc., through the property. He also alleges that for 8 months prior to suit he
has been so using the passage ABCD without obstruction or objection by anybody. The first defendant in the beginning of March, 1952,
obstructed the plaintiff and his men from taking their carts and leading their cattle through the suit property. The plaintiff therefore asked for a
declaration that the suit property ABCD belongs jointly to him and defendants and for a permanent injunction restraining the first defendant, his
agents and men from obstructing the plaintiff''s men, his agents and servants in using the said property in common with the defendants and for costs
of suit.
4. The case for the defendant is that the predecessors-in-title of the plaintiff were not co-owners with the defendants in respect of ABCD, and that
the plaintiff''s predecessors-in-title had acquired no right of passage for men, cattle, bandies, etc., over ABCD.
5. The learned District Munsif unfortunately framed the issues as follows:
(1)Is the plaintiff a co-owner with the defendants of the suit property?
(2)If so, what are his rights in the suit property?
6. If the learned District Munsif had merely omitted the words ''if so'' in issue 2 the controversy between the parties would have been brought into
proper perspective before him and his decree would have been properly moulded.
7. The learned District Munsif came to the conclusion, and this has also been affirmed by the learned District Judge, that the plaintiff has not
established that his predecessors-in-title were co-owners with the defendants of the suit property ABGD.
8. In regard to the predecessors-in-title of the plaintiff having acquired rights: of passage for men, cattle and bandies, etc., the learned District
Munsif found as a matter of fact that such rights of passage have been made out. He writes in paragraph 10 of his judgment:
It is quite clear from a consideration of the evidence that ABGD as a matter of fact is being used for access not only for the defendants but for the
properties east of the suit passage. The evidence is to the effect that Nagappa Naidu, the owner immediately to the north of the suit passage, has
recently put up a structure there with an opening on ABGD. The fact that the passage is used as means of, access by all the owners served by it
cannot however confer any ownership in them to the suit passage and so the plaintiff''s case that he is entitled as a co-owner in the suit passage
seems to be exaggerated.. At the same time the attempt of the defendants to state that the suit passage is common only to them? selves is also not
borne out either by evidence or probabilities.
9. Then the learned District Munsif discusses clearly the evidence in this case and writes:
All these circumstances show that the defendants'' case that the suit passage is owned only by themselves and that others can use it only with their
permission is not quite acceptable. It is quite clear from the evidence that the suit passage has been subjected to a right of way by the owners of
the south as well as to the east of it. Further the recitals in Exhibits B-i and B-2 themselves do not; lend weight to the defendants'' contention of
exclusive ownership of the suit passage, for it is mentioned, among the properties conveyed, the rights of the vendors in the Podu Narasa Sandu
(Common passage) was also conveyed. It is obvious that such a recital would not have found a place in the docu--ments if the parties thereto had
regarded themselves owners of the passage.
10. Then he concludes:
This conclusion, however, as already mentioned, does not necsesarily lead to the conclusion! that the defendants and the plaintiff are co-owners of
the suit passage. The right to use the passage does not necessarily mean that the parties own the passage. Further the documents on the side of''
the plaintiff do not in any way show that his predecessors-in-title owned the suit passage as a matter of right apart from their having a right of
passage over it and that any such right has been validly conveyed to him. In the present suit, as already referred to, the only question to be
considered is: whether the plaintiff has acquired right of co-ownership in the suit passage. On this matter the evidence does not bear out his case. It
must be made clear that this does not in any way prejudice whatever rights the plaintiff may have to use the suit passage as a means of access for
the properties purchased by him east of it in the customary manner....
11. But having come to this correct conclusion, as pointed out by the learned District Judge, ""The learned District Munsif while coming to such a
conclusion has taken the view that as the plaintiff appellant''s suit is based on ownership of the disputed site, the suit has to be dismissed "" without
considering whether, for giving the relief regarding the second prayer relating to permanent injunction, a finding that the appellant is a joint owner of
the passage is necessary, the learned District, Munsif dismissed the suit.
12. On appeal, the learned District Judge came to the conclusion that on the evidence and the conclusions arrived at by the learned District Munsif,
which were unassailable, the right of the plaintiff to make use of the common passage which was being obstructed by the defendants must have
been protected by a permanent injunction. Therefore the learned District Judge held that the plaintiff''s prayer for a declaration that the suit
property belongs jointly to himself and the defendants has to be dismissed and his prayer for the permanent injunction restraining the first
defendant, his agents and men from obstructing the plaintiff''s men, his agents and his servants in using the said property in common with the
respondents ought to have been decreed. Therefore, he set aside the dismissal of the suit and decreed the suit accordingly with proportionate
costs. Hence this Second Appeal by the defeated first defendant.
13. The only point of substance urged before me is that this relief cannot be granted on the frame of, and the issues in, the suit. The principles
which guide Courts in granting reliefs and which have been lucidly set out in the standard text books - S.C. Gosh, Principles and Forms of
Pleading, second edition, page 318 ; Mogha, The Law of Pleadings in India, Ninth edition, Chapter XIX, page 299, and foil., Odgers, Principles
of Pleading and Practice, Fifteenth edition, pages 182-186 can be summarised as follow:
(a) The plaintiff must state specifically the relief which he claims either simply or in the alternative. A person may rely on one set of facts if he
succeeds in proving them and on another set of facts if he succeeds in proving thems Alternative defences should not be confounded with mutually
self-destructive contradictory statements of facts. Order 7, rule 7, Civil Procedure Code. Balakram v. Ganga Bishnu AIR 1940 Pat. 233; Doorga
Prasad v. Secretary of State L.R. 72 I.A. 114 : ILR (1945) 2 Cal. 1; Karmshe v. Ratanshi AIR 1952 Kut. 55, Hardial Singh v. Jaswant Knur
AIR 4 Bom. 584.
(b) A plaintiff entitled to more than one relief in respect of the same cause of action may sue for all or any of the reliefs ; but if he omits except with
the leave of the Court to sue for all such reliefs, he shall not afterwards sue for any relief so omitted ; Order 2, Rule 2(3), Civil Procedure Code.
For exception to the rule see Order 34, Rule 14, Civil Procedure Code. It is not 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 has been asked for. See Order 7, Rule 7, Civil Procedure Code.
(c) Where the plaintiff claims more than what he is entitled to, the Court will not dismiss the suit but give the plaintiff only such relief as he is entitled
to. Pitambar v. Ram Joy (1867) South. W.R. 93 ; Lakshman v. Hari ILR 4 Bom. 584 ; Pentapati Venkataramana and Others Vs. Pentapati
Varahalu and Others, , Khanta Mandalani and Another Vs. Smt. Hem Kumari Debi and Others, .
14. The fact that plaintiff asked for relief larger than the facts asserted by him would warrant is no ground for refusing him the lesser relief to which
on the facts found he is entitled : Bhiku v. Puttu (1905) 8 Bom. L.R. 106 (D.B.). In fact as Odgers put it, where a party cannot be exact, it is wiser
to claim too much rather than too little as a Judge does not give more than that which the plaintiff requires - Judex non Reddi injuriam subi datam
punire.
(d) But where the plaintiff claims less than what he is entitled to, the Court will not grant him any relief he has not specifically claimed unless the
plaint is amended before the judgment : Sooriah Row v. Cotaghery (1838) 2 M.I.A. 113, Percival v. Collector of Chittagong I.L.R.(1900) Cal.
516. But the Court should not refuse to grant a relief not specifically claimed in the plaint, if such relief is obviously required by the nature of the
case and is not inconsistent with the relief specifically claimed and raised by the pleadings : Gulabgir v. Nathmal AIR 1932 Nag. 23. Too much
insistence should not be laid on the technicalities of pleadings. It is the duty of the Court to mould the relief to be granted to the parties according to
the facts proved which, however, should not be inconsistent with the pleadings, Mehar Ghand v. Milkhi Ram AIR 1932 Lah. 401
(e) where the plaintiff omits to indicate the basis of the relief he claims, the suit cannot fail for such omission if all the facts have been stated and
specially where no prejudice has been caused to the defendant. The mere fact of absence of a formal issue is immaterial when the defendant has
not been taken by surprise in regard to it. Moti Mahton v. Deblal Mahton AIR 1935 Pat. 503, AIR 1948 307 (Oudh) , Balmakund v. Dalu I.L.R.
(1903) All. 498 . These principles are deducible from the well-known decisions Hemendra v. Upendra (1915) ILR 43 Cal. 743 Naga Manjhi and
Others Vs. Kini Mahatani Another, , Bulakidas v. Ganpatrao AIR 1946 Nag. 112, Naga Manjhi and Others Vs. Kini Mahatani Another, , Fazal
Ilahi v. Guddar Shah AIR 1937 Lah. 1.
15. The following decisions of the Privy Council and the Supreme Court may also be usefully referred to. It is quite true as pointed out in
Adusumilli Gopalaksrishnayya Gam v. Province of Madras (1947) 2 M.L.J. 63 : L.R. 74 IndAp 182 : AIR 1947 P.G. 132 , that the rule that
material facts should be pleaded is no mere technicality, and an omission to observe it deprives pleadings of most of their value and may increase
the difficulty of the Court''s task of ascertaining the rights of the parties. In India as in England, as pointed out in AIR 1943 147 (Privy Council) ,
the duty of a pleader is to set out the facts upon which he relies and not legal inference to be drawn from them. But as pointed out by their
Lordships of the Supreme Court in Kedar Lal v. Harilal (1952) 1 M.L.J. 431 : (1952) S.G.J. 37 : 1952 S.G.R. 179 : AIR 1952 S.G. 47 , the
Court would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to
the other side however culmsily or inartistically the plaint may be worded and that in any event, it is always open to a Court to give a plaintiff such
general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond
what can be compensated for in costs. As has been stated in Firm Srinivasa Ram v. Mahabir Prasad (1951) S.G.J. 261 : 1951 S.G.R. 277 : AIR
1951 S.G. 177 (S.G.), a plaintiff may rely upon different rights alternatively and there is nothing in the CPC to prevent a party from making two or
more inconsistent sets of allegations and claiming relief thereunder in the alternative and that ordinarily the Court cannot grant relief to the plaintiff
on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet, because,
as has been pointed out in Sheodhari Rai and Others Vs. Suraj Prasad Singh and Others, , it is not right for the Court on failure of a party to prove
his case, to make a new case for him which was not only not made in his written statement but which is wholly inconsistent with the title set up by
him. But when the alternative case was not only admitted by the defendant in his written statement but was expressly put forward as an answer to
the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant
himself makes. A demand of the plaintiff based on the defendant''s own plea cannot possibly be regarded with surprise by the latter and no
question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such
circumstances when no injustice can possibly result to the defendant it may not be proper to drive the plaintiff to a separate suit. Pleadings in the
mofussil are to be construed liberally and not strictly. Asaram v. Ludheshwar AIR 1938 Nag. 336, Rohni Kumar v. Niaz Mahamad :
AIR1944Cal4 , Atal Behary Acharya Vs. Barada Prasad Banerji, , Umade Rajaha Raje Damara Kumara Venkatalingama Nayanim Bahadur
Varu, Rajah of Kalahasti Vs. Panaganti Parthasarathy Rayanimgar and Others, and Maganlal v. Purushotham AIR 1947 P.G. 96.
16. To sum up in all cases in which a Court is called upon to give a relief different from that claimed by the plaintiff, the test is to see whether the
defendant is not taken by surprise and there can be no surprise if the relief granted is consistent with that claimed and with the case raised by the
pleadings or is less than that claimed by the plaintiff. The plaintiff need do no more than suggest the relief to which he is entitled and it is for the
Court to determine what relief could be given on the facts found. Where all the facts are stated in the plaint and the plaintiff claims only one relief
although he could have claimed another alternative relief the Court can grant the latter relief. When necessary facts are stated in the plaint which if
established entitle the plaintiff in law to obtain certain reliefs, it is open to the Court to grant him such reliefs if established although the reliefs asked
for and the issues raised may be inartistically framed. Judicis est judicare secundum allegate et probata, it is the duty of a Judge to decide according
to facts alleged and proved.
17. Bearing these principles in mind if we examine the facts of this case we find that a case has been made out at the trial and also sufficiently raised
in the pleadings and the mere fact that an issue was inartistically framed would not prevent the Court from granting the appropriate relief ; there is
no substance in this contention raised by the appellant. In the result, the appeal has got to be dismissed and is hereby dismissed and in the
circumstances without costs. No leave.
