SEETHA BEHERANI Vs. AJAGANATH

JUDGEMENT

(1.) This second appeal is by the defendant in an ejectment suit. The plaintiff asserted that he was the owner of a house in the town of Berhampur and had leased it to the defendant at the commencement of 1934. The defendant had, he said, then executed a document, which he described as a rent-deed, undertaking to pay rent at the rate of 8 annas a month. At the end of 1934 the defendant had executed another document of the same kind and had continued to pay rent at the same, rate. At the end of 1935 she had, he said, for some reason or other, declined to execute another rent-deed, but, in the presence of a number of persons, had undertaken to continue paying the rent and also to vacate the house at the end of that year. She had eventually, he said, declined to do so, and he sued to eject her and also to recover the arrears of rent due to him up to 30th June 1937.

(2.) It is, I think, clear, on the averments in the plaint, that the status of the defendant was that of a tenant from month to month, and that she was entitled to a notice to quit. Admittedly no such notice was served on her, nor, in fact, does the plaint even contain an averment that any demand for possession was made. This, however, is not the main point taken by Mr. P.C. Chatterji for the appellant. The Courts below came to the conclusion that no relationship of landlord and tenant existed between the plaintiff and the defendant. The suit was decreed not on the footing that the defendant was a lessee, but on the footing that she was a mere trespasser. In order to understand how this came about, it is necessary to explain that the house was purchased in 1910 by one Chandramani Achari, who was an uncle of the plaintiff. The defendant asserted that she had been the mistress of Chandramani Achari, who died some years prior to the institution of the suit, and that Chandramani Achari had purchased the house for, and given it to her. The plaintiff, on the other hand, alleged that, at the time the house was purchased, Chandramani Achari was the manager of the joint family; that the purchase had been made with the monies of the joint family; and that, in 1936, as a result of a partition, the house had been allotted to him. On these allegations in the pleadings, the trial Court framed the, following issue: "Whether the plaintiff has title to and was in enjoyment of the suit house at any time within the statutory period."

(3.) The Courts below have found it as a fact that the house belonged, not to Chandramani Achari, but to the joint family of which he was the karta, and that, as a result of a partition, the house now belongs to the plaintiff. They have also found, on the rather doubtful basis of some receipts showing payment of taxes, that the plaintiff was in possession of the house from 1925 to 1930. Thus, although they were apparently satisfied that the defendant did not come into possession of the house until some time after 1930, they did not consider what the nature of her possession was. Mr. Chatterji, for the appellant, contends that, as the suit was, in its nature, purely a suit in ejectment, based on the allegation that the defendant was a tenant of the plaintiff, it was not open to the Courts below to give the plaintiff a decree on the footing that the defendant was a mere trespasser. The plaintiff, Mr. Chatterji contends, ought to have been confined to the case, which he made out in his plaint, and ought not to" have been permitted at the trial to set up quite another case, which was not at all made out in the plaint. Mr. B. Mohapatra for the respondents has relied on two decisions of the Allahabad High Court: Abdul Ghani V/s. Mt. Babni (1903) 25 All. 256 and Balmukund V/s. Dalu (1903) 25 All. 498. Neither of these decisions is, however, in my opinion, directly in point. It will be seen that in each of these cases the claim made by the plaintiff was a claim in the alternative, namely, either that the defendant was his lessee and the lease had been validly determined, or that he was a trespasser. The ratio decidendi in each case was that the plaintiff had, not merely put forward claims in the alternative, but had been entitled to put forward such claims.