AIR 1956 SUPREME COURT 593 ::1956 SCC 321 ::1956 SCJ 655 ::1956 SCR 451 ::ILR 1956 Mys 152

Supreme Court Of India

(26th April 1956)

Hon'ble Judge(s): S. R. Das, T. L. Venkatarama Ayyar, S. Jafer Imam , JJJ

(A) Transfer of Property Act (4 of 1882) , S.52— Suit for maintenance and for creation of charge on specific property - Lis when commences. When a suit is filed for maintenance and there is a prayer that it be charged on specific properties, it is a suit in which right to immovable property is directly in question, and the lis commences on the date of the plaint and not on the date of the decree, which creates the charge (Point conceded).(Para 9) Anno : AIR Com., T. P. Act, S. 52 N. 12, 14 and 20. (B) Civil P.C. (5 of 1908) , O.6 R.2— Variance between pleading and proof. Evidence let in no issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto(Para 12) Although no specific plea that the sale in favour of the defendants was affected by the doctrine of lis pendens was raised in pleading of the plaintiff and no s....