Summary
The 1965 partition could not support the High Court’s decree because it was not pleaded and the requested amendment to raise it had been refused. The evidence and 1984 partition showed that Survey Nos. 106/2 and 44/4 fell to defendant No. 7’s share; the sale of 106/2 was upheld.
Issues
- Could the High Court rely on a 1965 partition that was not pleaded and which the trial court had refused to allow the plaintiffs to plead?
- To whose share did Survey Nos. 106/2 and 44/4 fall under the 1984 family partition, and was the sale of 106/2 valid?
Held
- The High Court could not rely on an alleged 1965 partition that was not pleaded in the plaint and for which the trial court had refused an amendment; evidence on that unpleaded partition could not be considered. (¶¶ 14, 15, 16)
- The 1984 family partition assigned Survey Nos. 106/2 and 44/4 to the branch of defendant No. 7, the appellants’ predecessor. The High Court’s contrary findings on those properties were set aside. (¶¶ 17, 18, 20, 21, 24)
- The sale deed for Survey No. 106/2 was upheld. The interim restraint order had been issued before defendant No. 7 was joined to the suit, and the record did not show that it was later extended to him. (¶¶ 20, 22, 24)
Result
Appeals allowed; the High Court’s findings concerning Survey Nos. 106/2 and 44/4 were set aside, those properties were held to fall to the appellants’ share, and the sale deed for Survey No. 106/2 was upheld.