A.K. Parichha, J.
1. This is a Defendants appeal against the Judgment and decree of the Learned District Judge, Cuttack passed in Title Appeal No. 56 of 1993 setting aside the Judgment and decree recorded by the Learned Subordinate Judge, Athagarh in T.S. No. 22 of 1988.
2. The original Respondent-Brajabandhu Das filed the above noted suit for partition of the suit property. His averment was that he and the Defendant jointly purchased the suit land measuring Ac.0.66 dec. in plot No. 1468 of Khata No. 571 from one Nemai Ch. Harichandan for a consideration of Rs. 300/- on 30.1.1951 and jointly took delivery of possession and accordingly in the last settlement R.O.R. the suit land was jointly recorded in the name of the Plaintiff and Defendant. However, there was severance of joint family status in the family in the year 1964 and each brother possesses different parcels of land by mutual arrangement. In the process, the Plaintiff and Defendant possessed half and half of the suit land, the Plaintiff possessing Ac.0.33 dec. towards northern side and the Defendant possessing the remaining Ac.0.33 dec. on the southern side. Since hostile feeling generated between the Plaintiff and Defendant, Plaintiff filed a mutation case bearing No. 1354 of 1986 before the Tahasildar, Athagarh for mutation of his half share of the suit land, but the Tahasildar rejected that prayer with the observation that the parties should go for partition suit. Accordingly, the Plaintiff filed the above noted suit. The Appellant-Defendant besides challenging the suit on the ground of maintainability, lack of cause of action, limitation, non-joinder of necessary parties, denied title of the Plaintiff over the suit land and asserted that he paid the entire consideration money for the suit land and possessed the suit land exclusively. He denied that the Plaintiff had paid any part of the consideration or possessed any part of the suit land. He also pleaded that even otherwise the Plaintiff had lost his title over the suit land as he was ousted from that land in May, 1965 and did not put-forth any claim till 1986. As an alternative plea, the Defendant claimed title over the suit land by adverse possession.
3. From the pleadings of the parties, the Trial Court framed as many as five issues and on consideration of the oral and documentary evidence produced by the parties, held that the suit was not maintainable as the description of the suit land given in the sale deed and in the plaint do not tally with each other, that the Plaintiff did not acquire any right, title over the suit land and that in view of the previous partition amongst the Plaintiff and his brothers, further decree of partition of the suit land cannot be granted, that there was no cause of action. Consequently the suit was dismissed. The Appellate Court on reappraisal of the leadings and evidence held that in view of the admitted case of both the parties that although Ac.0.48 dec. of land was purchased under sale deed, Ext. 2, yet delivery of possession for Ac.0.66 dec. of land was given by the vendor, there was no ambiguity in the description of the suit land, that in view of the earlier partition in the family, the claim for partition by the Plaintiff is not maintainable. The Appellate Court, however, declared the right, title of the Plaintiff over half share of the suit land with the reasoning that in view of his subsisting right and title, the Plaintiff is entitled to such declaration. This declaration and reasoning is basically under challenge in this Second Appeal. During pendency of this appeal, the Respondent died and the present Respondents were substituted as his legal heirs.
4. At the time of admission of the appeal, the following substantial question of law was formulated:
Whether in a suit for partition simpliciter, the Court after coming to the conclusion that a decree for partition is not permissible in view of the existence of prior partition, right and title of the Plaintiff can be declared for a particular share in the suit properties?
5. Mr. P. Ghosh, Learned Counsel appearing on behalf of M/s. S.S. Das and associates, advocates for the Appellant submitted that the suit was simply for partition of the suit property and there was no prayer for declaration of right, title of the Plaintiff and as such, Learned 1st Appellate Court had no jurisdiction to grant a decree declaring the right, title of the Plaintiff over 1/2 share of the suit land. According to him, the Court cannot make out a new case beyond pleading and grant relief on that score.
6. Mr. S.C. Samantaray, Learned Counsel for the Respondents, on the contrary, submitted that Order 7, Rule 7, C.P.C. gives unfettered jurisdiction to the Civil Court to grant any appropriate relief to a party. He stated that the pleadings in most cases are loosely drafted and therefore, the Courts are duty bound to take the entire pleading into consideration to find out what relief a party is actually asking for and can grant such relief, even if such relief is not specifically asked for in the prayer portion of the plaint. In support of his contention, he relies on : AIR1976SC461 , : [1976]2SCR246 , : AIR1983Ori199 , : AIR1992Ori76 .
7. Order 7 Rule 7, C.P.C. reads thus:
Rule 7. Relief to be specifically stated- Every plaint shall state specifically the relief which the Plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the Defendant in his written statement.
Analysing the scope of 'other reliefs, which may always be given as the Court may think just', a Division Bench of Madhya Pradesh High Court in the case of Nirmala Gupta v. Ravendra Kumar : AIR1996MP227 (DB) observed that the power of the Court to grant just and proper relief to a party without his asking is also recognized by the provisions of Order 7, in addition to the power of the High Court under Article 226 of the Constitution of India. The same view was also taken by the Gujarat High Court in the case of State of Gujarat v. S.C. Aggrawal : AIR1998Guj193 . In a case where the Plaintiff claimed easement by prescription and it was found he was not entitled to easement by prescription, their Lordships of the Privy Council dealing with the case, decreed the claim of prescription of title with observation that the same arise from a grant. This Court in the case of Managobinda v. Brajabandhu Mishra : AIR1986Ori281 also ruled that under Order 7, Rule 7, C.P.C., the Civil Court has inherent power to grant either general relief or other relief which appears to it to be legitimate and proper in any case, even though such reliefs have not been specifically asked for. It was observed-that where the Plaintiff comes with a claim of larger relief, but is found entitled to a lesser one, then in appropriate case, the suit need not be dismissed and such lesser relief may be granted to him, if it is found to be just and proper.
The Courts took the above noted view basically on consideration that the pleadings are loosely drafted in Courts and therefore, the Court should not scrutinize the pleadings with such meticulous care so as to result in genuine claims being defeated on trivial grounds. This view was expressed by the Apex Court in the case of Madan Gopal Kanodia v. Mamraj Maniram and Ors. : AIR1976SC461 . In the case of Udhav Singh v. Madhav Rao Scindia : [1976]2SCR246 reiterating the same principle, the Apex Court advised that the pleading has to be read as a whole to ascertain its true import and it is not permissible to cull out a sentence or passage and to read it out of the context, in isolation. The Court further advised that the intention of the party concerned is to be gathered primarily from the tenor and term of his pleading taken as a whole. Following this principle, this Court in the case of Chennaru Naghbhusan Rao v. M. Rama Rao and Ors. : AIR1992Ori76 granted relief of restoration of possession to the Plaintiff even though there was no specific prayer to that effect in the plaint and the specific prayer in the plaint was for mandatory injunction. In the case of Arakhita Swain v. Kandhuni Swain : AIR1983Ori199 , also this Court observed that in case where question arises as to whether a particular relief has been asked for, the whole of the plaint should be taken into consideration and the substance and not merely the form of the plaint, should be looked into. It was also observed that under Order 7, Rule 7, C.P.C. the Court can grant a relief, which has not been specifically prayed for, if the Court thought it just and proper that such a relief should be given.
8. The wording of Order 7, Rule 7, C.P.C. and the observation of the Apex Court and different High Courts thus propagate that even if the Plaintiff has not asked for a specific relief, such relief can be granted by the Court if in the opinion of the Court grant of such relief is just and proper. I record my respectable endorsement to such view. In the present case, the Plaintiff no doubt asked for partition of the suit property measuring Ac.0.66 dec. claiming half in the same, but on reading of the entire plaint, one can easily gather that the Plaintiff's case is that he and Defendant jointly purchased the suit land and that each of them has right, title and possession over half share in the same. There was sale deed, Ext. 2 to support such plea. Although the Defendant claimed that the Plaintiff did not pay part of the consideration money and that he (Defendant) paid the entire consideration, there was no reliable evidence to support his plea. There was also presumption attached to the sale document and the subsequent revenue records, which show joint ownership of the Plaintiff-Defendant over the suit land. Since there was already a partition amongst the brothers, the Court below felt that further decree for partition will not be proper. There was no pleading or evidence that the suit land belong to the joint family or that it was subject matter of the family partition. Rather, the pleading and evidence reveal that the suit land was jointly purchased by the Plaintiff and Defendant only. So, there was no legal bar for grant of a decree for partition of the suit land. Be that as it may, since there was material to show right title of the Plaintiff over half of the suit land, the Court declared his right, title over half of the suit land. By granting such relief, the Court cannot be said to have created second appeal No. 134 of 1998, decided on 02-04-2008, from the Judgment and decree dated 6.4.1998 and 25.4.1998 respectively passed by Sri A.P. Das, Addl. District Judge, Cuttack in Title Appeal No. 56 of 1993 reversing the Judgment and decree dated 27.4.1993 and 12.5.1993 respectively, passed by Sri A.C. Patnaik, Subordinate Judge, Athagarh in T.S. No. 22 of 1988 a third case as alleged by the Appellant because the contest was for right, title of the Plaintiff over half of the suit land and the parties led evidence in that regard. The relief granted was, thus, within the ambit of Order 7, Rule 7, C.P.C. and is tenable in the eye of law.
The substantial question of law is thus answered against the/Appellant and the appeal is found to be without any merit. So, the appeal is dismissed on contest, but without any cost.