Alok Sharma, J. - (1.) HEARD the counsel for the parties. The substantial question of law which arises in the present appeal is that whether without filing any counter claim by the defendants -respondents (hereinafter 'the defendants'), the learned appellate court could have passed in effect a virtual decree of partition of the disputed premises in favour of the defendants.
(2.) MR . S.N. Bhatt and Mr. J.M. Saxena, appearing for the defendants, fairly concede that the judgment and decree of the appellate court dated 19.10.2010 to the extent it effectively partitioned the disputed property in equal measure between the plaintiffs and the defendants without any counter claim by the defendants in the suit cannot be sustained. Counsels however submit that on the evidence on record before the courts below, the concurrent finding of fact that the defendants were not the licencees of the plaintiffs ought not to be interfered with in the exercise of the limited jurisdiction of this Court in respect of questions of fact. It is submitted that even if the judgment and decree dated 19.10.2010 of the appellate court effectively partitioning the disputed property in equal measure between the plaintiffs and the defendants is set aside, the defendants should be left with their rights/liberty to pursue the matter with the Jaipur Municipal Corporation for the recall of the patta dated 02.07.1976 obtained by the defendants fraudulently and for pursuing their case before Jaipur Municipal Corporation for issuing a patta independently in their name for half the disputed property on the basis of their exclusive possession. Mr. R.K. Daga, appearing for the plaintiffs -appellants would however submit that not only the judgment and decree of the appellate court be set aside to the extent of the appellate court exceeding its jurisdiction in effectively directing partition of the disputed property in equal measure between the plaintiffs and the defendants while dismissing the plaintiff's appeal, but the finding of the appellate court holding that the defendants were not the licencees of the plaintiffs, also be set aside on the ground of perversity.
(3.) IN my considered view, the appellate court did indeed exceed its jurisdiction in directing that the disputed property be divided in equal measure between the plaintiffs and the defendants more so in view of the fact that no counter claim had been filed by the defendants and the appellate court could not have travelled in any manner whatsoever beyond the pleadings and the relief claimed in the suit before the trial court and in the appeal before it. Consequently, the finding of the appellate court to the above extent is set aside.;