BALDEO DAS Vs. HAJI KHAN

JUDGEMENT

(1.) In this case the plaintiff sued the defendant, alleging that the defendant was tenant of a certain house belonging to the plaintiff; that the tenancy had commenced some eleven years before; that for the last three years the defendant had ceased to pay rent, and had denied the plaintiff's title. Both the Courts have found that the allegations as to the tenancy are untrue, and have found that the relationship of landlord and tenant has not been shown to have existed between the plaintiff and the defendant. They have therefore dismissed the suit, so far as it was founded on the allegation of tenancy, but have given the plaintiff a decree for possession as owner. Now it seems to me that this decree cannot be supported on the allegations of the plaint. The only way the plaintiff stated himself to be in possession of the property in suit was by alleging that the defendant was his tenant. Had the tenancy been proved, it would have followed that the plaintiff was in possession through his tenant. But it has been found that the defendant was not his tenant. The position therefore is this, that the plaintiff has failed to prove possession over the disputed premises within twelve years before suit. It is alleged, of course, that he was in possession before the commencement of the alleged lease to defendant; of such possession there is not a scrap of evidence, and I am of opinion that in a case like this, where plaintiff's principal allegation has been proved to be untrue, we should not send down an issue to the Lower Court to enable him to establish a subsidiary line of attack. I would therefore allow this appeal, setting aside the decrees of the Lower Court, and dismiss his suit with costs. Chamier, J.

(2.) The plaintiff's case was, that he was the owner of the house in suit; that ten or eleven years before the suit he had leased it to the defendant at a monthly rent; that for three years before suit the defendant had paid no rent, and that a few months before the suit he had denied the title of the plaintiff.

(3.) The defendant in his written statement denied that the plaintiff was the owner of the house, or that he had leased it to the defendant. He pleaded that he had been in adverse possession of the house for more than twelve years, and that the suit was bared by limitation. Both the Courts below have disbelieved j the evidence as to the alleged lease, but they have passed a decree in favour of the plaintiff for possession on the ground, apparently, that the defendant has not proved twelve years adverse possession. Mr. Ghulam Mujtaba, on behalf of the defendant, relying upon the decision of this Court in Naiku Khan V/s. Gayani Kuar (1893) I.L.R. 15 All. 186 contends that as the plaintiff failed to prove the case stated in his plaint, the suit should have been dismissed. On the other hand, counsel for the plaintiff has referred us to the judgment of Tyrrell, J., in All Husain V/s. Ali Bakhsh Weekly Notes 1889 p. 176 and to the judgment of Aikman, J., in an unreported case--S.A. No. 631 of 1899 Balmakund V/s. Dalu decided on July 10th last Since reported Weekly Notes 1901 p. 157.