JUDGMENT
Syed Md. Mahfooz Alam, J.
1. This second appeal has been preferred by the plaintiffs-appellants against the judgment and decree dated 5-10-1985 passed in Title Appeal No. 130 of 1978/6 of 1985 by Sri P. Xaxa, Ist Additional District Judge, Siwan Whereby he has been pleased to confirm the judgment and decree dated 21-6-1978 passed by Sri Muhdrika Prasad, 6th Additional Subordinate Judge, Siwan in Title Suit No. 217 of 1973/31 of 1978 dismissing the suit of the plaintiffs-appellants.
2. The case of the plaintiffs-appellants, as per the plaint, in brief, is that the disputed land-described at the foot of the plaint is the agricultural, land of the plaintiffs which the plaintiffs had acquired from defendant No. 5 Bacha Prasad by virtue of three sale deeds executed on 22-6-1968 for valuable consideration of Rs. 5,000/- and since the date of purchase the plaintiffs have been coming in possession of the suit land. Further case is that the defendant Nos. 1 to 4 have no interest in the suit property. They have got no right to get the said land attached and auction sold. Further case is that Harihar Tiwary filed a collusive suit against defendant Nos. 5 to 7 in the Court of 2nd Munsif, Siwan and obtained a money decree and in execution of decree the suit land was put on auction sale in Execution Case No. 56 of 1971. When the plaintiffs came to know about the execution case, the plaintiffs preferred Miscellaneous Case No. 83 of 1971 under Order 21, Rule 58 of the Civil Procedure Code thereinafter referred to as “C.P.C.”) but the learned Munsif dismissed the said miscellaneous case after hearing both the parties without making discussion on the pleas and legal points raised by the plaintiffs-appellants. It has been stated that the dismissal of the application of the plaintiffs-appellants filed under Order 21, Rule 58, C.P.C. in Misc. Case No. 56 of 1971 is illegal and without jurisdiction and since the plaintiffs are the legal purchasers of the suit land as such for declaration of that title, necessity of filing of the suit arose.
3. The case of the contesting defendants (defendants No. 1 to 3) is that the sale deeds of the plaintiffs are not genuine and valid documents and the same are of without consideration. The plaintiffs never came in possession of the suit land by virtue of the said sale deeds. The entire story of execution of the sale deeds is concocted and the sale deeds are farzi, antedated and collusive documents. Further case of the defendants-respondents is that defendant No. 5 Bacha Prasad had executed a hand-note in favour of the defendant Nos. 1 to 3 and for recovery of debt the defendant Nos. 1 to 3 had preferred money suit bearing Money Suit No. 125/1968 which was decreed in favour of defendant Nos. 1 to 3. Thereafter Execution Case No. 56 of 1970 Was filed in which the plaintiffs filed objection whereupon Misc. Case No. 83 of 1971 was instituted. However, by order dated 12-9-1973 the objection petition filed by the plaintiffs under Order 21 Rule 58 C.P.C. was dismissed. Thereafter the suit property was put on auction sale and in auction sale the contesting defendants purchased the suit land and Since then they have been coming in possession of the suit land. It is stated that this suit was filed in collusion with defendant Nos. 5 to 7 and the same is fit to be dismissed.
4. On the basis of the pleadings of both the parties the trial Court framed as many as eight issues and after making full discussions on all the issues the trial Court dismissed the suit of the plaintiffs by judgment dated 21-6-1978. Against the said judgment and decree, the plaintiffs-appellants preferred appeal which was numbered as Title Appeal No. 130 of 1978 and the same was heard by 1st Additional District Judge, Siwan Sri. P. Xaxa, who by his judgment dated 5th October, 185 dismissed the appeal of the plaintiffs-appellants. Against the said dismissal of the appeal by the first appellate Court, this second appeal has been preferred.
5. From perusal of the order dated 23-10-1986 it appears that at the time of admission of this second appeal only one substantial question of law was formulated for consideration in this appeal which is as follows :
Whether in the facts and circumstances of the case, the plaintiffs could have been granted a money decree against their vendors in respect of the consideration money, which was paid?
Thus, before this Court there is only one substantial question of law which is to be answered.
6. It has been argued on behalf of the learned Advocate of the appellants that the trial Court while making discussion on Ext. 2 series i.e. three sale deeds all dated 22-6-1968 executed by defendant No. 5, Bacha Prasad in favour of the plaintiffs has held at Para 19 that all the three sale deeds are genuine and for consideration and so, in view of this finding the trial Court should have granted relief that the plaintiffs are entitled for money decree against their vendors in respect of the consideration money although the said relief was not specifically claimed in the plaint. The learned Advocate of the appellants has further argued that under Order 7, Rule 7, C.P.C. the Court is empowered to grant equitable relief although the same is not specifically claimed. In support of his argument, learned Advocate of the appellants has placed reliance upon the decision Katihar Jute Mills Ltd. v. Calcutta Match Works (India) Ltd. The relevant paragraph which has been relied by the learned Advocate of appellant is as follows :
Pleadings, especially those from the moffisil, are not to be construed very strictly. Moreover, the phrase “general or other relief in Order 7, Rule 7 is an omnibus phrase wide enough to cover all such reliefs as are consistent with the averments made in the plaint.
Rule 7 of Order 7 and Rule 1 of Order 14 are rooted in a larger principle, namely, that on the one hand no party at the trial should be taken by surprise and on the other in case of an alternative relief the same should not be such as to constitute any embarrassment at least to the party pleading it.
Thus, in a suit even though the contracts for sale relied upon the parties fail yet the plaintiff will be given so much relief as relates to declaration of title and recovery of possession when the entire suit proceeds on the assumption of title in the plaintiff.
He has also placed reliance on another decision in the case of Raghubar Dayal Prasad v. Ramekbal Sah . He referred following lines from the said decision :
Plaintiff claiming relief of eviction on the ground of relationship of landlord and tenant as also arrears of rent – Defendant denying the relationship of landlord and tenant, setting up a title in himself- Both the Court’s accepting plaintiffs title but negativing the case of tenancy – Relief for recovery of possession can be granted – Plea not specifically made but covered by the issues and parties going on trial and entering into evidence – Objection that there was no pleading cannot be entered – But relief for recovery of possession can be granted on payment of Court fee on determination of suit value of the property.
7. On the basis of the above decisions, the learned Advocate of the appellants submitted that substantial question of law as formulated on 23-10-1986 at the time of admission of this second appeal is correct and this Court is competent to grant a relief to the plaintiffs-appellants by holding that the plaintiffs are en titled for money decree against their vendors in respect of the consideration money.
8. Against the above argument of the learned Advocate of the appellants, the learned Advocate appearing on behalf of the respondents argued that the provision of Order 7, Rule 7, C.P.C. has not been properly interpreted by the learned Advocate of the appellants. He submitted that it is unheard that in a title suit a relief for money decree can be granted likewise it is also unheard that in money suit title of the party can be declared. He has argued that according to the provision under Order 7, Rule 7, C.P.C. the Court is empowered to grant equitable relief to the parties even the said relief was not specifically claimed in the pleadings if the same is consistent with the averments made in the plaint. In support of his argument, he has placed reliance upon the decision relied by the learned Advocate of the appellants i.e. AIR 1986 Patna 78. The learned Advocate of the respondents submitted that in the case referred above, the plaintiff had filed a suit for eviction of the defendant claiming himself to be the landlord but the trial Court as well as the first appellate Court held that there was no relationship of landlord and tenant between the parties. However the trial Court decreed the suit but the 1st appellate Court dismissed the suit of the plaintiff. But both the Courts held that the plaintiff is the owner of the suit property and so, on the basis of the concurrent findings of the trial Court as well as the first appellate Court this Court held that the plaintiff being the title-holder of the stilt property is entitled to recover possession even if the relationship of landlord and tenant between the parties could not be established. The learned Advocate of the respondent submitted that the relief of recovery of possession granted to the plaintiff was consistent with his pleadings that he is the owner of the suit property and the trial Court as well as the first appellate Court also found that although there was no relationship of landlord and tenant between the parties but the plaintiff was the owner of the suit property and therefore, the relief of recovery of possession of the suit property granted by this Court to the plaintiff of the said suit was consistent with the pleadings of the plaintiff as well as with the findings of both the Courts below. The learned Advocate of the respondent further submitted that so far this case is concerned the relief of granting money decree in favour of the plaintiffs against their vendors is inconsistent with their pleadings as well as the findings of the first appellate Court that the sale deeds are not valid, genuine and for consideration.
9. Let me see whether the argument advanced by the learned Advocate of the respondents applies in this case or not. It appears that the plaintiffs had filed this suit for declaration of their title with respect to the suit property on the strength of three sale deeds executed by defendant No. 5 and for declaration that the dismissal of the miscellaneous case bearing Misc. Case No. 83 of 1971 under Order 21, Rule 58 C.P.C. filed in Execution Case No. 56 of 1971 is illegal and without jurisdiction. Admittedly, the plaintiffs had not prayed any alternative relief that in case the Court finds that the title has not passed to the plaintiffs by virtue of the sale deeds then a money decree be granted in their favour against their vendors in respect of the consideration money. Since both the reliefs were independent reliefs and in title suit money decree cannot be granted, as such the plaintiffs had rightly not claimed the relief for grant of money decree. Moreover I find that the relief for grant of money decree to the plaintiffs against their vendors are inconsistent with their pleadings that by virtue of the sale-deeds in question, they (plaintiffs) acquired valid title of the suit property. In such view of the matter I hold that under Order 7, Rule 7 C.P.C. the phrase “general of other relief does not include inconsistent relief and as such the reliefs which were not claimed and are not consistent with the pleadings of the parties cannot be granted. Since the grant of relief of money decree is not consistent with the pleadings of the plaintiffs, as such this relief cannot be granted to the plaintiff-appellant. Accordingly, this substantial question of law is answered.
10. During the course of argument, the learned Advocate of the appellants has argued that one more substantial question of law i.e. “whether the attachment before the judgment has been proved in accordance with law” should have been formulated which could not be formulated. The learned Advocate tried to persuade this Court to formulate this substantial question of law but it appears that this substantial question of law has been fully discussed in the judgment of the lower appellate Court and I do not find any ilegality with regard to the finding of the lower Court oh this point. I am of the view that in the background of the case, the plaintiffs are not entitled to raise this point because of the fact that before filing of the title suit the plaintiffs had filed objection petition in Execution Case No. 56 of 1971 on the basis of which Misc. Case No. 83 of 1971 was instituted in which the plaintiffs had challenged the validity of the attachment of the suit property before judgment but on contest, the said miscellaneous case was dismissed. In such view of the matter, I am of the opinion that stage for challenging the validity of the attachment of the suit property before judgment was over by dismissal of Misc. Case No. 83 of 1971 filed by the plaintiffs in Execution Case No. 56 of 1971. Moreover, I find that on the date on which the attachment of the suit property was done i.e. on 18-6-1968 the plaintiffs were not the title-holders of the suit property and on that date the vendors of the plaintiffs were title-holders of the suit property. The plaintiffs became title-holders of the suit property after four days of the said attachment i.e. on 22-6-1968. Strangely enough, the plaintiffs’ vendors did not raise any objection against the attachment and did not challenge the validity of the attachment and, therefore, I am of the view that now the plaintiffs who are the vendees are not entitled to challenge the validity of attachment. Moreover I am also of the view that on 22-6-1968 the vendors of the plaintiffs were not entitled to transfer the suit property to the plaintiffs as the same was under attachment by the order of the competent Court. In such view of the matter, I am of the view that in the second appeal there is no need of formulating any substantial question of law with regard to the validity of attachment of the suit property as the same was finally decided in the execution proceeding bearing Execution Case No. 56 of 1971. Accordingly, I reject the argument of the learned Advocate of the appellants on this point.
11. In the result, I do not find any merit in his second appeal and as such the same is hereby dismissed on contest with cost. The judgment and decree of the trial Court as well as the first appellate Court are hereby confirmed.