BHUKHI KOERI Vs. RAM KHELWAN PROSAD

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of rent brought by the plaintiff, on the allegation that the lands, for which the rent was claimed, had been settled with the defendant No. 1. The latter denied the relation of landlord and tenant with the plaintiff and set up one Jagadambi as his landlord. The Court of first instance held that the relation of landlord and tenant existed between the plaintiff and the defendant and gave a decree to the plaintiff. On appeal, the learned Subordinate Judge disbelieved the story of the settlement of the land by the plaintiff with the defendant No. 1, as also the alleged settlement by Jagadambi set up by the defendant, and held that the position of the defendant No. 1 was no better than that of a trespasser, but that plaintiff s title was proved and that he was entitled to recover rent for use and occupation from the defendant No. 1.

(2.) The defendant No. 1 has appealed to this Court and the question raised in this appeal is whether the plaintiff is entitled to compensation for use and occupation in the suit as framed.

(3.) In the plaint, there is no alternative claim for rent for use and occupation; the defendant No. 1, therefore, had no notice that the plaintiff, if he failed to prove the settlement set up in the plaint, would claim rent for occupation of the land, and he is apparently not willing to be treated as tenant of the plaintiff. In a suit for rent, where no alternative claim is made for use and occupation, no rent can be decreed on that footing. This was decided by the Full Bench in the case of Lukhee Kanto Dass Chowdhry v. Sumeeruddin Lusker 13 B.L.R. 243 : 21 W.R. 208 and we are bound by that decision. No doubt, in the cases referred to in the judgment of the Court below, it was held that tenancy in this country is created not only by contract but also by occupation of land so far as agricultural lands are concerned, and rent for use and occupation was decreed. But the question is not whether rent for use and occupation can be decreed in a suit for rent, but whether a decree on that footing can be made where there is no alternative claim for use and occupation, As pointed out by the Privy Council in the case of Eshan Chunder Singh v. Shama Churn Bhutto 11 M.I.A. 7 at p. 20 : 6 W.R. (P. C) 57 the determination in a cause should be founded upon a case either to be found in the pleadings or involved in or consistent with the case thereby made".