RAM KINKAR RAI Vs. TUFANI AHIR

JUDGEMENT

(1.) This is a Full Bench appointed to consider the question whether, to use the language of Young, J.: a point of law which has never been taken in either the trial Court or the lower appellate Court can be raised in second appeal.

(2.) The plaintiffs sued eight defendants in ejectment and for damages The defence of the first group of defendants was that they were tenants, holding by virtue of an agreement with defendant 3. a widow by name Mt. Batasi, her husband being by name Baldeo. The second group of defendants were cosharers, who did not join in the action. In the year 1926 the defendants had been actually ejected from the land in dispute but they subsequently regained possession; and the principal point that was discussed before the Munsif and the lower appellate Court was, whether the defendants were trespassers, a matter which involved the right of Mt Batasi to grant a lease to defendant 1. The Munsif on the issue of joint- ness or separation held that Baldeo the husband of Mt. Batasi, died as a member of the joint Hindu family, and therefore decreed the suit. On appeal Mr. Krishna Das held that Baldeo was separate from the plaintiffs. He therefore dismissed the suit holding that Mt. Batasi had power to grant the lease. Counsel for the plaintiff omitted to raise in their pleadings the legal position which later in this Court they sought to raise, viz., that even if Baldeo was separate from the plaintiffs Mt. Batasi could not thereby grant a lease to defendant 1, and that in the further alternative, the suit of the plaintiffs ought to have been decreed in part. Nor were these alternatives discussed in the lower appellate Court. When these points were sought to betaken before Young, J., he declined to receive them upon the ground that no appellant should be allowed to raise points not taken by him in the lower Courts. He noticed, however, that this matter frequently arose, and was of opinion that the matter should be authoritatively settled. Dr. Agarwala, who appeared on behalf of the plaintiffs, called our attention to a number of cases which can be conveniently grouped under five heads: cases in which the doctrine of res judicata has. been allowed to be invoked; cases of limitation; cases in which on a study of the pleadings no cause of action has been put forward by the plaintiffs or defence shown by the written statement; jurisdiction; and points which the Courts have allowed to be taken upon the specific ground that all the material being be-fore the Court, a decision would result in the saving of further litigation. On the question of res judicata he referred us to Md. Ismail V/s. Chhatter Singh [1881] 4 All. 69, which; is an authority for the proposition that the plea of res judicata, though not brought forward either before the Munsif or the lower appellate Court, can be brought forward for the first time in second appeal, and must be entertained by the Bench who have two courses open to them, either to decide the question on the record as it stands, or after a remand upon findings of fact. Decisions to the same effect are to be found in Tek Narain Rai V/s. Dhondh Bahadur [1898] A.W.N. 104, Chhadami Lal V/s. Shyama Charan [1914] 22 I.C. 12 and: Bibi Wasilan V/s. Mir Syed Hussain A.I.R. 1929 Pat. 173.

(3.) On the question of limitation we were referred to Bechi V/s. Ahsanullah [1890] 12 All. 461, in which a Full Bench of this Court decided that a question of limitation, when it arises upon the facts before a Court, must be heard and determined whether or not it is directly raised in the pleadings or in the grounds of appeal. In Ranga Charya V/s. Guru Reoti Banian Acharya the Court held that where the facts necessary to support a plea of limitation are either admitted or are apparent on the face of the record, the High Court will not be justified in refusing to entertain the plea even if raised for the first time in second appeal.