S. B. Deshmukh, J. - (1.) This second appeal has been admitted by this Court by the order passed on 16th April, 2007 on the following substantial questions of law: " (i) Whether, in the facts and circumstances of the present case, the first Appellate court committed patent error while reversing findings of the trial Court for the reason that copy of the sale deed dated 29th May, 1969 was not duly proved by adducing necessary secondary evidence with leave of the Court (ii) Whether, in the facts and circumstances of the case, the first Appellate Court committed patent error while holding that the suit was within limitation though, the evidence regarding delivery of possession of the suit land to Smt. Manormabai was found to be inadequate by the trial Court and story of dispossession was not believed by the trial Court, particularly in view of the judgment of the Supreme court in the matter of "shamsundar prasad and others Vs. Rajpalsing and another", 1995 1 SCC 311, inasmuch as the plaintiff relied upon sale deed (Exhibit-87) dated 15th October, 1966 and since then was out of possession (iii) Whether, in the facts and circumstances of the present case, the suit should have been dismissed for want of proper description of the suit land as required under Order 7, Rule 3 of the Code of civil Procedure -
(2.) The Appellant, in this second appeal, was the defendant No. 1 in the suit filed by Respondent No. l (plaintiff ). Parties hereinafter are referred to their status as plaintiff and defendants in Regular Civil Suit No. 177 of 1987, for convenience. The plaintiff had sought a relief of declaration that the plaintiff and defendant No. 3 are the owners of the suit field and for recovery of possession from defendant nos. 1 and 2. This suit has been dismissed with costs by the trial Court. This decree was challenged by the plaintiff in Regular Civil Appeal no. 176 of 1993. The 1st Adhoc Additional district Judge, Jalgaon (first Appellate Court), after hearing the parties, allowed the appeal. This judgment of the first Appellate Court is challenged in this second appeal. I have heard learned counsel for the parties at length. Hearing of civil proceedings/civil suits is governed by the procedural law i. e. Code of Civil Procedure (the Code, for short ). The pleading of the party is provided under Order 6, Rule 1 of the Code. Plaint is pleading of the plaintiff and written statement is pleading of the defendant in view of Order 6, Rule 1 of the code. Parties are expected to plead material facts and not evidence, as has been provided under Order 6, Rule 2 of the Code. Oral evidence, in the absence of pleading, is not permissible under Order 6, Rule 2 of the Code. If such oral evidence is led by the party concerned, the Courts have to ignore such oral evidence in the absence of the pleadings. In short, parties are not supposed to travel beyond the pleadings while leading oral evidence. Parties are presenting their stance before the civil Court by such pleadings. Pleadings, thus, are important in civil suits. Such importance of the pleading is time and again considered by the supreme Court. Useful reference can be made to a recent judgment of the Supreme Court in the matter of "state Bank of India Vs. S. N. Goyal", 2008 AIR(SCW) 4355 .
(3.) Agricultural land survey No. 13 is converted to Gat No. 203, admeasuring 3 hectare, 92 Ares, situated at village Atwade, taluka Raver, district Jalgaon (suit property), is subject matter of the case on hand. In para 2 of the plaint, a statement is made that the suit land was owned and possessed jointly by one mr. Namdeo Vedu (who is not party to the present suit) and the defendant No. 1. After the demise of Namdeo Vedu his son Shankar acquired ownership to half portion of the suit land and has disposed of said half portion of the suit land to defendant No. 4. In the case on hand, we have no concern with defendant No. 4. It is also mentioned in para 1 of the plaint that defendant No. l had sold out his 1/2 share out of the suit land on 15th October, 1966 to plaintiff, his brother Shashikant Dnyandeo and defendant No. 3, another brother of the plaintiff. It is pleaded that, at the time of this sale deed dated 15th October, 1966, plaintiff, his brother shashikant and defendant No. 3 were minors and were represented by their real mother/natural guardian who purchased the suit property for them (minors ). It is also pleaded, at the close of para 2, that Manormabai, mother of defendant No. 3 and brother Shashikant, had cultivated the land. In para 3, it has been pleaded that, after the sale transaction dated 15th october, 1966 and taking over possession of the suit land, and after about 11/2 year from the said transaction, Shashikant, brother of the plaintiff, died. It was some time in the year 1978-79, cultivation of the suit property by the mother, is pleaded up till 1972-73. It is further pleaded, in para 3, that some where in the month of May, 1973 defendant No. 2 has misrepresented plaintiff's mother and illegally took possession of the suit property. It is also pleaded in para 4, that plaintiff perceived the sale transaction recently. On search of the papers, plaintiff found that defendant No. 1 got recorded his name. It is pleaded, in para 4, that such entries are bogus. Plaintiff, therefore, addressed a notice to defendant Nos. 1 and 2 on 14th September, 1981 by registered post a. D. and demanded possession of the suit property. However, defendant Nos. 1 and 2 have not heeded to the notice, neither have handed over possession of the suit property to the plaintiff. Therefore, the suit for declaration and possession against the defendants, was filed. In para 5, explanation is given as to why defendant No. 3, brother of the plaintiff, is joined as party-defendant as well as reference/pleading is made regarding joining of defendant No. 4 as party defendant. In para 6, it is pleaded that on the date of sale transaction in favour of the plaintiff, he was minor, has attained majority on 8th March, 1979 and, therefore, suit filed by the plaintiff is within limitation. On behalf of defendant No. 1 written statement is filed at Exhibit-60. After denial, in para 3, it has been pleaded by defendant no. 1 that he had purchased agricultural land at newari-Dewari village, Taluka Burhanpur. For said transaction he had raised loan of Rs. 3,000/ -. He could not repay the said amount of loan. It is further pleaded, in para 3, that suit land is situated in the vicinity of village Atwade and, therefore, defendant No. 1 approached to one mr. Jankiram Dayaram who is defendant No. 2, in this suit, and Mr. Hari Bhagwan of village atwade. He demanded Rs. 3,000/- by way of hand loan. Jankiram defendant No. 2 and Hari bhagwan could not lend such amount and have informed the defendant No. l that Smt. Manormabai Patil i. e. mother of the plaintiff is dealing in money lending. Defendant No. 1 has further pleaded that he requested defendant No. 2 Jankiram and Hari bhagwan that they should perform role of mediator for raising loan from mother of the plaintiff. Defendant No. 1 confided the defendant no. 2 and Mr. Hari Bhagwan, went to mother of the plaintiff, demanded Rs. 3,000/ -. Defendant No. l, that time, was informed by mother of the plaintiff that she does not have money lending licence. Amount of loan sought for by the defendant No. l is big amount and, therefore, defendant No. 1 should give suit land to her for the amount of Rs. 3,000/- towards interest. She also informed the defendant No. 1 that he will have to execute sale deed of rs. 6,000/- in favour of her children. The amount of Rs. 3,000/- to be paid by defendant no. l to Manoramabai towards hand loan, would be returned with interest in the year 1969 which would be in its totality Rs. 5,000/- and in that case she would execute sale deed in the name of defendant No. 1. Since defendant No. 1 was in dire need of the loan, has executed the sale deed of Rs. 6,000/- by accepting Rs. 3,000/ it is also pleaded, in this para 3, that manoramabai had also taken one more mediator, her relation, viz. Mr. Bhika Shivram Patil. It is further pleaded that defendant No. l could not repay the amount. He, therefore, sold out agricultural land at village Newari-Dewari. As agreed, he paid Rs. 5,000/- with interest to mother of plaintiff on 29th May, 1969 and she had reconveyed the suit property. It is further pleaded that agricultural land of the defendant no. 1 has been sold by plaintiff and, therefore, plaintiff cannot claim any right in the suit property. It is specifically pleaded further that though the mother of plaintiff has purchased the suit property, the original transaction is of money lending and, therefore, is not binding on defendant No. 1. It is also pleaded that defendant no. 1 had not delivered possession of the suit property to mother of the plaintiff. Suit property is in actual possession of the defendant No. 1 as owner thereof.;