KASTURI DEVI Vs. SHRIPAL SINGH

JUDGEMENT

(1.) This appeal is directed against a decision of the Subordinate Judge of Patna confirming a decision of the Additional Munsif, Patna, decreeing a suit for the eviction of the defendants-appellants from a house situated in the northern portion of holding No. 59 of Circle No. 167 of Patna City. The suit was filed by the plaintiff as landlord, suing to evict the appellants as tenants on the termination of their tenancy by notice to quit. The appellants contested and raised a question of title. They denied the title of the plaintiff and set up a title in themselves under an oral gift made by Budha Batau, father of the plaintiff, in favour of defendant 1. The Courts below rejected the story of the alleged gift. They held the title to be vested in the plaintiff. They did not accept, however, the story that the appellants entered into occupation of the house as tenants under the plaintiff. Their finding is that the parties are related and that, as the appellants were in difficulty as to accommodation, they were allowed by the plaintiff to enter into permissive possession of the house. On these findings, the plaintiff was given a decree for eviction as in a suit for recovery of possession from a trespasser.

(2.) In upholding the decision of the Munsif, the Subordinate Judge relied on the decision of Beevor J. reported in -- 'Saral Sonar v. Sudama Singh', A. I. R. 1946 Pat 103 (A), in which his Lordship himself relied on a Full Bench decision reported in -- 'Abdul Ghani v. Mt. Babni', 25 All 256 (FB) (B). Our attention has been drawn to an earlier decision of Shearer J. reported in -- 'Seetha Beherani v. A. Jagannath', A. I. R. 1944 Pat 312 (C) in which his Lordship took a contrary view and distinguished the Full Bench decision mentioned above and also another Full Bench decision reported in the same volume, '25 All 498 (FB)', 'Balmakund v. Dalu (D). It is not necessary for me to re-examine this matter as I have dealt with it at some length in -- 'Mohammad Mian v. Jugeshwar Prasad', A. I. R. 1951 Pat 550 (E) in which I came to the following conclusion: "It appears to me that the relief, which the Full Bench of the Allahabad High Court considered the Courts could and should give, is an equitable relief entirely within the discretion of the court within the provisions of Order 7, Rule 7, Civil P. C. If the question of title has been raised in the trial of the suit and has been investigated, the parties knowing about it and adducing evidence on the point, and the Court is in a position to give the plaintiff the relief asked for on the basis of his title, there is no reason why the Court should drive the plaintiff to file another suit in order to get this relief, provided that the plaintiff has done nothing to disqualify him from receiving equitable relief e. g., by coming to Court with a false story." Shearer J., who was a member of the Bench, agreeing with me, observed: "Where the Court, is unable to say, on the evidence, whether the defendant is a tenant or a licensee but is able to say definitely that if he is not the one, he is the other the position is quite different, and there is no difficulty in passing a decree."

(3.) It has been urged that a plaintiff who comes to the Court with one story cannot be allowed to succeed on a different case. This is not an invariable rule -- 'Sri Mahant Gobind Rao v. Sita Ram Kesho', 2 Cal WN 681 (PC) (F). The question of title was put in issue in the present case by the appellants themselves and has been fully investigated between the parties. In the circumstances it cannot be said that the Munsif has exercised his jurisdiction incorrectly by refusing to drive the plaintiff to file a fresh suit.