AFTAB ALI Vs. NAWAB BEGUM

JUDGEMENT

(1.) THIS is a defendant's appeal arising out of a suit for his ejectment and also for recovery of arrears of rent and mesne profits from him. The plaintiff alleged that the house in dispute was pur chased and constructed by her deceased hus band, who died in August 1944, leaving sur viving him the plaintiff and the defendants Nos. 2 to 4. The plaintiff further alleged that she admitted defendant No. 1 as a mere licencee in the said premises in Janu ary, 1951 and a license deed dated 18th Janu ary, 1951 was executed by the defendant No. 1 in favour of the plaintiff. The de fendant No. 1, however, subsequently enter ed into an agreement of tenancy with the plaintiff in respect of the suit premises agree ing to pay rent at the rate of Rs. 20.00 per month. The defendant No. 1, however, failed to pay the rent to the plaintiff since 1st June, 1959 and, therefore, a notice of demand was served on him. Instead of paying the rent he denied the title of the plaintiff whereupon the plaintiff issued a notice of ejectment on 12th September, 1960 which was served on defendant No. 1 on 19th September, 1960. The defendant No. 1 failed to comply with the notice hence the plaintiff filed the suit for the aforesaid reliefs. In the alternative the plaintiff prayed that if it was established that defendant Nos. 2 to 4 were also co-owners of the suit premises a decree for possession be passed in favour of the plain tiff and the defendants Nos. 2 to 4 as well.

(2.) THE suit was resisted by the defen dant No. 1 on a number of grounds. He denied the title of the plaintiff in the suit premises and alleged that she was not entitled to sue. He further contended that the suil house belonged to Smt. Achchi Bi who trans ferred possession of the same to him for a consideration of Rs. 1, 000.00. Smt. Achchi Bi migrated to Pakistan hi 1947 and since then the defendant No. 1 has been in exclusive possession of the suit house as owner there of. He claimed to have perfected his titla by adverse possession. He also denied the allegation that he was the licensee of the plaintiff and ultimately became a tenant. He disputed his liability to pay rent or mesne profits to the plaintiff and challenged the Validity of the notice. He further alleged that the suit was bad for non- joinder of the two daughters and one son of the plaintiff. The defendants Nos. 2 to 4 also filed the separate written statements but they support ed the plaintiffs claim.

(3.) THE learned counsel for the appellant urged that admittedly Achchi Bi - who was a co-owner-migrated to Pakistan On her migration to Pakistan her share in the house in suit vested in the Custodian, Evacuee Properties. The plaintiff having not implead ed the Custodian of Evacuee Properties in the suit was not entitled to a decree for eject ment of the defendant No. 1 from the suil premises. In my view this contention cannot be allowed to be raised at this stage in the second appeal. The defendant No. 1 die not plead in the written statement that the Custodian of Evacuee Properties was one of the co-owners. On the other hand he pleaded that he was inducted into possession of the suit premises by Achchi Bi to whom he paid a sum of Rs. 1, 000.00. He further pleaded that since the migration of Achchi Bi to Pakistan he had been in exclusive pos session of the suit premises as owner thereof and maintained to have perfected his title by adverse possession. The plea to the effect that the custodian of Evacuee Property was one of the co-owners of the suit premises is obviously inconsistent with the plea raised by the defendant No. 1 in his written state ment at the trial. Though he had stated that the suit was bad for non-joinder of the two daughters and the son of the plaintiff he did not allege that the suit was bad for non joinder of the Custodian of Evacuee Property. No issue was accordingly framed as to whe ther the Custodian of Evacuee Property had become a co-owner of the house in suit. The defendant No. 1 appellant cannot, therefore, be permitted to raise an argument which is not supported by his pleadings. Even no such ground was taken by the defendant No. 1 in the first appeal which he filed from the decree passed by the trial Court against him. In fact having not pleaded he was not entitled to raise that ground either before the appellate Court below or before this Court. At any rate it is not open to the de fendant No. 1 appellant to raise that ground for the first time in the second appeal more particularly when the question involved is a mixed question of fact and law. Moreover, no notification as contemplated by Sec. 6 of the U. P. Administration of Evacuee Pro perty Ordinance No. 1 of 1949 evidencing that any share in the house in dispute vested in the Custodian was filed by the defendant No. 1. There is no evidence on the record to establish that the suit house or any share therein was ever declared as an evacuee pro perty. It is not for this Court to declare in these proceedings that the suit house or any share therein became an evacuee property more particularly when the same was not pleaded by any of the parties to the suit. It is by now well-settled that a defendant can not be permitted to travel beyond his plead ings and make out a new case which is wholly inconsistent with the case set up by him in the written statement. It would be noticed that the new plea now sought to be raised at this stage was in fact not set put in the written statement and had not been included in any issue and, therefore, no evi dence was or could have been led about it. In such a case clearly the defendant cannot be permitted to defeat the claim of the plain tiff on a ground which is entirely new and which is inconsistent with the ground made by him in his pleadings.