- (1.) Heard Sri Faujdar Rai, Advocate, assisted by Sri C.K. Rai, Advocate, for the appellants and Sri A.K. Goyal, Advocate, for respondents. This is defendants' Second Appeal under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred to as "Code").
(2.) Substantial questions of law, which have arisen in this case, are: (1) Whether the Courts below are justified in granting relief to the plaintiff-respondent beyond what he has stated in the plaint? In other words, can relief be granted to a plaintiff beyond the claim set up by him in the plaint? (2) Whether the Courts below have granted relief to plaintiff-respondents in the present case beyond the assertions contained in the plaint and such decree whether is sustainable in law?
(3.) Plaintiff-Respondent No. 1 (impleaded as Respondent I Set and hereinafter referred to as "plaintiff") instituted Original Suit No. 694 of 1993 impleading six defendants, wherein present appellants were impleaded as defendant Nos. 1, 4 and 6. The defendant-respondent Nos. 2 to 4 (II set) were impleaded as defendant Nos. 2, 3, and 5. All the defendants, except defendant No. 1, are real brothers, being sons of Nagendra Nath Tiwari. Plaint case set up is that plaintiff purchased a plot being part of a larger Bhumidhari Plot No. 36 situate at Allapur Baski Uparhar, Chail, District Allahabad. The boundaries and map of the plot was given in the schedule appended to the plaint but in para 14 he pleaded that the northern boundary east to west was 54 feet 6 inches. The sale-deed was executed sometimes in 1964 whereafter he constructed a house on some part of the aforesaid land. Sri A.K. Goyal, learned counsel appearing for plaintiff, stated at the bar that north and south boundaries as per sale-deed were 54 feet 6 inches but referring to para 14 of the plaint stated that on the northern boundary, six inches land on the west side was never claimed by plaintiff and he constructed boundary only for 54 feet. In other words what comes out from plaint case is that the size of plot purchased by plaintiff was 54 feet 6 inches on north and south side both, and 105 feet on east and west side. However, northern boundary on the western side was constructed only for 54 feet, and, 6 inches area was left by plaintiff unclaimed and that is how plot size, which remained in actual possession of plaintiff, comes to as under: Northern boundary - 54 feet Southern boundary - 54 feet 6 inches Eastern and western boundaries - 105 feet;