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A Court cannot make a new case, not made out by parties in their pleadings

In Ganesh Chandra Paul v. Maya Paul and Ors., the High Court of Calcutta held that Supreme Court in case of Sheodhari Rai & Ors. v. Suraj Prasad Singh, and a Division Bench decision of this Court in case of Jugal Kishore Kundu & Ors. v. Narayan Chandra Kundu, observed that it is settled law that, a Court cannot make a new case, not made out by parties in their pleadings and, as such, in absence of any pleading or defence set up by opposite parties that, Petitioner in his application did not describe suit land correctly, Appellate Court below committed a patent error of law in dismissing Petitioner's pre-emption case under Section 8 of Act.

In present case, undisputedly neither in written statement filed before trial Judge, nor in Memorandum of Appeal filed before Appellate Court below, opposite parties set up any defence to claim of Petitioner in application under Section 8 of Act that, suit land has not been correctly described. Even from order passed by trial Judge, it is clear that neither any issue was framed, nor any argument was advanced on behalf of opposite parties with regard to maintainability of pre-emption application on ground of incorrect description of suit land. Further, from impugned order passed by Appellate Court below, it is clear that none of parties to appeal advanced any argument before appellate Court below disputing correctness of description of suit land.

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