S. Bhopinder Singh and others vs Chanan Singh and others

Harnam Singh, J.—Shortly stated the facts which give rise to this appeal are that on the 26th of July 1992, Sardar Avtar Singh, father of Bhopindar Singh and Balvindar Singh, defendants, mortgaged without possession for Rs. 15,609/- 94 kanals 9 marlas of agricultural land, situate in Mauza Dhaliwal, Tehsil Nakodar with Chanan Singh and Nand Singh plaintiffs 1 and 2 and Bawa Singh, father of Kultar Singh plaintiff 3. The conditions of the mortgage provided, inter alia that in case the mortgagor failed to pay interest on the mortgage-debt for one year the mortgagees would be entitled to possession of the mortgaged land. Default having occurred in the payment of interest, the plaintiffs instituted the suit for possession of the mortgaged land against Bhopindar Singh and Balvindar Singh defendants. Sardar Avtar Singh mortgagor having died before the institution of the suit.

Now, defendants 1 and 2 denied the execution of the mortgage deed by Sardar Avtar Singh and then pleaded that in any case, the land in suit was ancestral qua them and the mortgage was without consideration and legal necessity. In the replication the plaintiffs maintained that the pleas regarding the ancestral nature of the land and consideration and necessity were not open to the defendants in these proceedings.

Upon the pleadings of the parties the following issues were framed:

Did Avtar Singh deceased execute the mortgage deed in favour of the plaintiffs and if so whether for consideration?

Are plaintiffs entitled to possession of land in default of payment of interest?

Has default in payment of interest been made?

Is land in suit ancestral qua defendants?

Is mortgage in favour of plaintiffs for consideration and legal necessity?

Cannot the defendants raise the pleas covered by issues Nos. 4 and 5?

Is objection of defendants barred by time?

Belief?

After a protracted trial the trial Court found that the execution and the registration of the mortgage deed Ex. P. 4., was proved and that the plaintiffs were entitled to possession in default of payment of interest. The trial Court then found that default in payment of interest had been made. On issue No. 4 the trial Court found that the land in suit was ancestral qua the defendants. On issue No. 5 the finding of the trial Court was that the mortgage in question was not supported by consideration and legal necessity. Finding that the objections covered by issues Nos. 4 and 5, were open to the defendants and that those objections were not barred by time, the trial Court dismissed the suit with costs.

From the decree passed by the trial Court, the plaintiffs went up in appeal in the Court of the District Judge Jullundur under S. 39, Punjab Courts Act, 1913. Before the lower appellate Court the findings on issue Nos. 1 to 4 were challenged. The plaintiffs-appellants, however, maintained that Bhopindar Singh and Balvindar Singh defendants were born after the alienation in question and, therefore, they had no locus standi to object the alienation in question and that in any case, the mortgage was for consideration and legal necessity.

Allowing the objection with regard to the locus standi of the defendants to impugn the mortgage the lower appellate court held that it was not open to the defendants to challenge the mortgage under custom on the usual grounds of absence of legal necessity and ancestral nature of the property. The lower appellate Court then affirmed the finding of the trial Court that there was no consideration and legal necessity for the mortgage in question. Finding that it was not open to the defendants to challenge the mortgage in question the lower appellate Court allowed the appeal decreeing the plaintiffs'' suit with costs.

From the decree passed by the lower appellate Court, the defendants have now come up in further appeal under S. 41, Punjab Courts Act, 1918.

Mr. Shamair Chand, learned counsel for the appellants, contends that the lower appellate Court acted in the exercise of its jurisdiction with material illegality in allowing the objection with regard to locus standi of the defendants to object to the mortgage in question. He then contends that the finding of the lower appellate Court on issue No. 5 does not proceed upon a consideration of the entire evidence on the record and is therefore, not sustainable.

Now the first contention raised by Mr. Shamair Chand is one of considerable importance and I take advantage of it for the purpose of pointing out that a party is expected and is bound to prove the case as alleged by him and as covered by the issues framed. This is in accordance with the main principle of practice that a party can only succeed according to what was alleged and proved : Secundum allegata et probata.

As long ago as 1866, in the case of Eshan Chunder-Singh v. Shama Churn, 11 M. I. A. 7: (6 W. R. 57 P. C. ), Lord Westbury pointed out 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 made thereby,

In AIR 1930 57 (Privy Council) Viscount Dunedin observed:

No amount of evidence can be looked into upon a plea which was never put forward.

This very point came up for examination before the Privy Council in Hem Chand v. Pearey Lal, A. I. R. 1942 P. C. 64 : (I. L. R. (1942) Kar. P. C. 166). In that case, Sir Madhavan Nair said:

Their Lordships desire to observe, that though the case has been decided on all the points which arose on the evidence led by the parties, the procedure adopted by the trial Court of allowing the parties, to adduce evidence on points not raised in the pleadings or issues was irregular and should not have been allowed without amending the pleadings and raising the necessary issues.

More recently this very point was examined by the Privy Council in Kanda v. Waghu, AIR 1950 P. C. 68 : (1950 A. L. J. 326). In that case Sir Lionel Leach following the decision in Eshachunder Singh v. Shamachurn, 11 M. I. A. 7 : (6 W. R. 57 (P. C.), observed:

In Eshanchunder Singh v. Shamachuran, 11 M. I. A. 7 at p. 20 : (16 W. R. 57 (P. C.)), Lord Westbury described it as an absolute necessity that the determination in a cause should be founded upon a case to be found in the pleadings or involved in or consistent with the case thereby made.

Now the objection as to the locus standi of the plaintiffs was not raised at the trial. It is true that the defendants were born some years after the alienation in question, but they would have the locus standi to challenge the mortgage on the grounds covered by issues Nos. 4 and 5 if at the time the mortgage was made there was some collateral in existence competent to challenge the mortgage. The plea raised by the plaintiffs in the appellate proceedings depends upon facts on which the parties had no opportunity to examine evidence. That being so, the objection raised by Mr. Shamair Chand has considerable force and I allow it with the result that I reverse the finding of the lower appellate Court that the defendants appellants had no locus standi to challenge the mortgage.

Then it is said that the finding of the trial Court on issue No. 5 does not proceed upon a consideration of the entire evidence on the record. Now, we have with the assistance of the learned counsel for the appellants examined very carefully the judgment of the lower appellate Court on issue No. 5. No evidence has, however, been pointed out on the record which has been ignored by the lower appellate Court in coming to decision on issue No. 5. That being the situation of the matter, there is no force in the second contention.

No other point was raised in these proceedings.

Finding as I do that the mortgage in question was for consideration and legal necessity the appeal fails and is dismissed with costs.

Kapur, J.

I agree.