GENDLI BIBI Vs. JOYNAL ABDIN SARKAR

JUDGEMENT

(1.) This is an appeal by the plaintiffs in an action in ejectment. The plaintiffs alleged that the defendant had no right of possession in the disputed land and was liable to be ejected as a trespasser. The defendant pleaded that he was an occupancy raiyat tinder the plaintiffs and held the land at a rental of Rs. 10. Upon these pleadings, the Trial Court raised the issue, whether the plaintiffs had a right to get khas possession of the land in suit. The Court came to the conclusion that the defendant was not a raiyat but a trespasser, and decreed the suit. Upon appeal, the Subordinate Judge came to the conclusion that the defendant was an adhiar tenant, that is, a tenant who cultivates the land on condition of payment of one half of the produce to the landlord. In this view the lower Appellate Court held that the defendant could not be ejected as a trespasser. On the present appeal, the decree of the Subordinate Judge has been assailed on two grounds : namely, first, that the case has been decided against the plaintiffs on a ground not raised in the pleadings: and, secondly, that the decision of the question, whether the defendant was or was not an adhiar tenant, was barred by the principle of res judicata.

(2.) As regards the first point, the contention of the appellants is not altogether unfounded The plaintiffs same into Court on the allegation that the defendant looked after the cultivation of the land on their behalf, that he betrayed his trust and from 1911 appropriated the crops. The defendant contended that he looked after the cultivation in his own right because he was an occupancy raiyat of the land and that the amount of annual rent payable by him was Rs. 10. The Trial Court accepted the version of the plaintiffs and found that the defendant was a trespasser. The Subordinate Judge held that the defendant was an adhiar tenant. This was plainly neither the case of the plaintiffs nor the case of the defendant. On these facts Mr. Gupta has contended that the judgment of the Subordinate Judge is open to just exception. It may be conceded that neither party to a litigation can be allowed to set up at the hearing an entirely new and inconsistent case. The plaintiff must be held to the state of facts alleged in his plaint or substantially consistent therewith. The defendant also must be held to the state of facts alleged in his written statement or in harmony therewith. This rule was enunciated by Lord Westbary in Eshenchunder Singh V/s. Shamachurn Bhutto 11 M.I.A. 7 : 6 W.R.P.C. 57 : 2 Ind. Jur. ( N.S.) 87 : 2 Sar. P.C.J. 209 : 20 E.R. 3. and was emphasised by Lord Moulton in North Western Salt Co. V/s. Electrolytic Alkali Co. (1914) A.C. 461 at p.475 : 83 L.J.K.B. 530 : 110 L.T. 852 : 58 S.J. 338 : 30 T.L.R. 313, when he observed that the Court will not entertain a question not raised in the pleadings. The reason for the rule has been stated to be in substance that the parties might otherwise be seriously prejudiced. The plaintiff might have received no notice that the point would be raised by the defendant and would presumably be not prepared with the necessary evidence, and, conversely, the defendant might be seriously embarrassed if the plaintiff were permitted to spring a surprise upon him in the shape of a new case. Consequently, when an objection of this kind is taken, the test to be applied is whether the party aggrieved has really been taken by surprise. Let us see how the plaintiffs stand when their case in considered from this standpoint.

(3.) The substantial question in controversy between the parties was whether the defendant was a trespasser or a tenant. If the defendant was a tenant, that was a complete answer to the claim, because the plaintiffs have never asserted that the defendant was a tenant, that his tenancy was liable to be terminated, that it had been terminated in accordance with law and that the defendant was not entitled to continue in possession any longer. The complaint of the plaintiffs is consequently well founded to this extent that the Subordinate Judge has determined the nature of the alleged tenancy and has come to a conclusion which was not the case of either party. But that, in our opinion, has not prejudiced the plaintiffs in respect of their claim for ejectment. Upon the real question in issue, each party understood what he had to prove and what he had to expect from his opponent. We hold accordingly that the conclusion of the Subordinate Judge that the defendant held as a tenant cannot be assailed.