SHRI RAM Vs. THAKUR DHAN BAHADUR SINGH

JUDGEMENT

(1.) JUDGEMENT This is a second appeal by the defendant arising out of a suit for possession of two plots Nos. 203 and 209 situated in village Raipur, Pargana Kewai in the district of Allahabad. Briefly stated the plaintiffs case was that one Raghunandan Singh was an occupancy tenant of the two plots in suit and had mortgaged the same for Rs. 50/- with Bindra, father of the defendant-appellant about thirty years ago i.e., in or about the year 1921 and that Bindra aforesaid was first in possession of the mortgaged plots and after his death the defendant has continued in permissive possession. The plaintiffs case further was that though the mortgage of an occupancy holding was void yet the plaintiff was entitled to recover possession of the land on payment of the debt of Rs. 50/- to the defendant. The defendant contested the suit, inter alia, on the ground that the mortgage set up by the plaintiff did not exist and was only imaginary, that the defendant was in possession of the property as a mortgagee for 60 years under a different mortgage deed dated Phagun Badi 10, Samwat 1929 (1883) Ex. P. 9 for Rs. 99/- executed by the said Raghunandan Singh in favour of the defendants father, it was further pleaded that after the expiry of 60 years, the defendants possession became adverse, which, had matured into fulfledged occupancy rights after the efflux of another 12 years; as such the suit was barred by limitation.

(2.) THE trial Court held that the mortgage set up by the plaintiff was not proved and, therefore, dismissed the suit on this ground alone. It did not go into the question of limitation pleaded by the defendant. Being aggrieved against the aforesaid decree of the trial Court, the plaintiff preferred an appeal, which was allowed by the Court below, decreeing the plaintiffs suit for possession on payment of Rs. 99/- to the defendant on the ground that although the plaintiff had failed to prove his case as set up in the plaint, yet he was entitled to a decree on the case as set up by the defendant; hence this appeal by the defendant.

(3.) IN support of the principle laid down by their Lordships of the Supreme Court in the above case, reliance was placed upon the pronouncement of the Judicial Committee in B. Mohan Manucha v. Manzoor Ahmad Khan, AIR 1943 PC 29. The appeal had arisen out of a suit brought by the plaintiff to enforce the mortgage security. The plea of the defendant was that the mortgage was void. The Privy Council held that it was open in such circumstances to the plaintiff to repudiate altogether the transaction set up by him and claim a relief outside it in the form of restitution under Section 65 of the Contract Act. Although no such alternative claim was made in the plaint, yet the privy Council allowed to be advanced and gave a decree on the ground that the respondents could not be prejudiced by such a claim at all and the matter could not be left to a separate suit. That being the position of law, the Court below was perfectly justified in decreeing the suit of the plaintiff on the case set up by the defendant in his written statement, without insisting on the amendment of the plaint or directing the plaintiff to a separate suit.