The Supreme Court in the case Srinivas Raghavendrarao Desai, Dead By Lrs. Versus. V. Kumar Vamanrao @Alok and Ors., observed that the evidence which was not a part of the pleadings could not be led in the trial.
The bench comprising of Justice C.T. Ravikumar and Justice Rajesh Bindal in the case observed that there is no case in which there was any error in the pleadings and the parties knowing their case fully well had led evidence to enable the Court to deal with that evidence.
In the case, the specific amendment in the pleadings was sought by the plaintiffs with reference to 1965 partition but the same was rejected and in such kind of situation, the evidence with reference to the partition of 1965 cannot be considered.
The bench headed by Justice Rajesh Bindal while deciding a civil appeal preferred by the appellant or defendant against the decision of the High Court which had considered the evidence not pleaded in the pleadings by the plaintiff or respondent, moreover, the application moved plaintiff’s seeking amendment to the suit to add the evidence was also rejected by the trial court, and the same was not even challenged by the plaintiff or respondent.
Therefore, the plaintiff or respondent challenged the sale of the suit property by the appellant or defendant no.7 to defendant no.9 which being on the note that the 1965 partition did not authorize the appellant to sell the suit property as he has no title over the suit property as per the 1965 partition.
The Supreme Court in the case observed and has held that the High Court committed a grave error in placing reliance upon the partition which allegedly effected in the year 1965, as it is not even the pleaded case of the plaintiffs in the suit that there was any partition of the family properties in the year 1965.
The court in the case observed that as is evident from the judgment of the High Court, much reliance was placed upon the oral partition effected between the parties in the year 1965.
The said court is of the view that the High Court committed a grave error in placing reliance upon the partition allegedly effected in the year 1965, in terms of which Schedule ‘A’ properties were allotted exclusively to the share of defendant No. and the fact remains that it is not even the pleaded case of the plaintiffs in the suit that there was any partition of the family properties in the year 1965.
Adding to it, the court stated that the plaintiff seeks to amend the plaint seeking to raise pleadings regarding 1965 partition. Thus, the trial court order dated October 11, 2006 rejected the application for amendment of the plaint. The aforesaid order was not challenged any further.
The Supreme Court in the case observed and has recorded that the petition sought to be taken by the plaintiffs regarding the 1965 partition in the replication filed by them would not come to their rescue for the reason that the amendment application filed to raise that plea was specifically rejected.
The court stated that the trial court had rightly ignored the plea taken in the replication by the plaintiffs regarding oral partition of 1965, as amendment sought to that effect had already been declined. What was not permitted to be done directly cannot be permitted to be done indirectly.
The Supreme Court while considering the facts and circumstances of the case observed and has set aside the findings of the High Court and the sale executed by the appellant (since deceased) in favor of defendant No. 9 regarding Survey No. 106/2 is upheld.
Accordingly, the court allowed the appeal.
The counsel, Advocates Mr. M. Gireesh Kumar, Adv. Mr. S. K. Kulkarni, Adv. Mr. Ankur S. Kulkarni, AOR Ms. Uditha Chakravarthy, Adv. Ms. Shalaka Srivastava, Adv. Ms. Priya S. Bhalerao, Adv. Mr. Varun Kanwal appeared for the Appellant(s).
The counsel, Mr. Basava Prabhu S Patil, Sr. Adv. Mr. Ankolekar Gurudatta, AOR Mr. Korada Pramod Kumar, Adv. Mr. Amith J, Adv. Mr. V. Chitambresh, Sr. Adv. Mr. Purushottam Sharma Tripathi, AOR Mr. Amit, Adv. Mrs. Vani Vyas, Adv. Mr. E. C. Vidya Sagar, AOR represented the respondent.