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Hira Lal Chatterjeb and ors. Vs. Giribala Debi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in34Ind.Cas.444
AppellantHira Lal Chatterjeb and ors.
RespondentGiribala Debi
Cases ReferredAbdul Ghani v. Musammat Babni
Excerpt:
pleadings and proof, variance between, effect of - relief, grant of, on a case not set out in plaint. - .....husband of the plaintiff, or kalikumar, the father of the defendants, was entitled to one-third share of the property. the court found that kalinath was entitled to one-third share; upon this point both parties were agreed. the court also found that kalikumar, the father of the defendants, was entitled to another one-third share. as regards the remaining one-third share, the court held that it was jointly owned by durga charan and mahesh. on this basis, the court made a decree for one-sixth share in favour of the plaintiff. this decree was challenged before the lower appellate court on the ground, amongst others, that the plaintiff had been allowed to succeed on a case different from what she had set out in her plaint. this objection was overruled by the subordinate judge, who held on.....
Judgment:

Asutosh Mookerjee, J.

1. This is an appeal by the defendants in a suit for recovery of possession of land on declaration of title. The plaintiff claims one third share in the disputed property by right of inheritance from her husband. The Courts below have found that she is entitled only to one-half of what she claims and have made a decree accordingly. The defendants contend that there is a variance between pleading and proof and that the plaintiff should not be allowed to succeed on a case different from what she made in her plaint. To appreciate the force of this objection, it is necessary to bear in mind that although in the Court of first instance, the plaintiff claimed only one-third shire, and it was consequently unnecessary for her to deal with the devolution of the other shares, yet she went, on to state that another one-third share belonged to Durga Charan and the remaining one third share to Kalinath. The defendants did not dispute these latter allegations; in fact, they claim to have purchased the share of Durga Charan. Consequently, the contest in the Trial Court upon the pleadings was, whether Mahesh, the husband of the plaintiff, or Kalikumar, the father of the defendants, was entitled to one-third share of the property. The Court found that Kalinath was entitled to one-third share; upon this point both parties were agreed. The Court also found that Kalikumar, the father of the defendants, was entitled to another one-third share. As regards the remaining one-third share, the Court held that it was jointly owned by Durga Charan and Mahesh. On this basis, the Court made a decree for one-sixth share in favour of the plaintiff. This decree was challenged before the lower Appellate Court on the ground, amongst others, that the plaintiff had been allowed to succeed on a case different from what she had set out in her plaint. This objection was overruled by the Subordinate Judge, who held on the merits that the view taken by the Trial Court was supported by the evidence on the record. On the present appeal, the contention has been reiterated that the suit should be dismissed, because the decree is contrary to the allegations in the plaint. It may be concerted, as was stated by Lord Westbury in the case of Eshenchunder Singh v. Shamachurn Bhutto 11 M.I.A. 7 : 6 W.R. (P.C.) 57 : 2 Ind. Jur. (N.S.) 87 : 2 Sar. P.C.J. 209 : 20 E.R. 3 and by Sir Barnes Peacock in Mylapore lyasawmy Vyapoory Mood-liar v. Yeokay 14 C. 801 : 14 I.A. 168 : 11 Jur. 397 : 5 Sar. P.C.J. 50, that the determination in a cause should be founded upon a case either to be found in the pleadings or involved in or consistent with the case thereby made. This principle was recently con-, firmed by the Judicial Committee in the case of Shirabasava v. Sangappa 8 C.W.N. 865 : 29 B. 1 : 1 A.L.J. 637 : 6 Bom. L.R. 770. But in the application of this doctrine, we must bear in mind the reasons whereon it is founded. As explained in Nabtiawipendra Mookerjee v. Madku Sudan Mondal 16 Ind. Cas. 741 : 18 C.W.N. 473, the rule that the allegations and the proof must correspond is intended to serve a double purpose, namely, first, to apprise the defendant, distinctly and specifically, of the case he is called upon to answer, so that he may properly make his defence and may not be taken by surprise; and, secondly, to preserve an accurate record of the cause of action as a protection against a second proceeding upon the same allegations. We cannot consequently hold that every variance between pleading and proof is fatal; we must carefully consider, whether, in the words of the Judicial Committee in the case of Radha Mohun Mundal v. Jadoomonee Losses 23 W.R. 369, the objection is one of form or of substance. In that case, the Court of first instance dismissed the suit for possession of property, on the ground that the Hindu widow who had instituted it had established a title different from what she had alleged in the plaint. This Court on appeal reversed the decision and the view of this Court was ultimately approved by the Judicial Committee. In the case before us, it was essential for the plaintiff to state that her husband was entitled to a share in the disputed property and that she had succeeded to that share by inheritance. It was not necessary for her to deal with the devolution of the other shares. Consequently, the allegations made in the plaint with respect to those shares were not essential for the purposes of the pleadings. It is further clear that the defendants were not taken by suprise. Evidence was adduced by both the parties in support of their respective cases, to show how the title to the different shares had devolved from time to time. The Court came to the conclusion upon the entire evidence, that the allegations of the plaintiff as also of the defendants were incorrect, and, as happens not infrequently, the truth lay midway; the plaintiff was entitled only to one-half of what she claimed. It is further clear that, as the Trial Court stated, the evidence incontestably proves that the husband of the plaintiff had a share in the disputed property. In these circumstances, we are of opinion that we should not give effect to the objection taken by the appellants, namely, that relief must be refused to the plaintiff because she has not made out the precise title set up by her in the plaint in respect of the shares wherewith she had no concern. The view we take is in accord with two Full Bench decisions of the Allahabad High Court: Balmakund v. Dalu 25 A. 498 : A.W.N. (1903) 112 : Abdul Ghani v. Musammat Babni 25 A. 256 : A.W.N. (1903) 18.

2. The result is that the decree of the Subordinate Judge is affirmed and this appeal dismissed with costs.


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