JOAD ALI Vs. RAIKESHORE SAHA

JUDGEMENT

(1.) This appeal arises out of a suit instituted by the plaintiff as a co-sharer landlord for recovery of possession from the defendant of a plot of land which the defendant alleges to have purchased from a former tenant of the plain-till named Wazuddi. The defence of the defendant is that the holding to which this plot of land appertains was not the holding of Wazuddi alone but belonged to Wazuddi and several others, the same having devolved on them on the death of Wazuddi's father Asanullah, and that, inasmuch as the other heirs of Asanullah are still living, the sale of the holding by Wazuddi did not operate to transfer the entire holding such as would give the landlord the right of re-entry. It is unnecessary to refer to the other allegations in the pleadings of the parties. The learned Munsif dismissed the plaintiff's suit being of opinion that it had bean proved that the holding originally belonged to Asanullah, that there were heirs of Asanullah other than Wazuddi, that they bad not abandoned the holding, that the possession which Wazuddi exercised in respect of the holding was one exercised not merely on his own behalf but on behalf of the other co-sharers as well and that by the transfer by Wazuddi in favour of the defendant, the entire holding did not pass. On appeal by the plaintiff, the learned Subordinate Judge came to certain findings which it will be necessary for me to examine more closely presently. In the result, he decreed the plaintiff's suit. Against that decision the present appeal has been preferred by the defendant.

(2.) The contentions put forward on behalf of the defendant-appellant are principally two. The first contention is that the learned Subordinate Judge has given the plaintiff a decree upon certain findings of fact which are inconsistent with the case set up by her and the learned Vakil appearing on behalf of the appellant contends that it is not permissible for a Court to make a new case to that which has been put forward in the pleadings of the parties and to pass a decree in favour of the plaintiff thereupon. The second contention is that the findings, which the learned Subordinate Judge has arrived at in the present case, are not sufficient for the purpose of holding that the tenancy of Asanullah has terminated or that the interest of the other heirs of Asanullah in the holding in question has come to an end so as to enable the plaintiff to take possession of the holding.

(3.) Now, with regard to the first contention, it is a settled proposition of law that Court is not entitled to make a case inconsistent with or different from that which is presented to it on behalf of the parties, and that it is not permissible for a Court to pass a decree in favour of in plaintiff upon the basis of a case which is inconsistent with the case which he himself has put forward. This rule is based upon the question of prejudice and, if in the present case there was anything to show that the defendant had in fact been prejudiced by reason of the learned Subordinate Judge basing his decree upon the findings at which he arrived, I would certainly have held that the decree could not be sustained in law. Furthermore, if it appeared to me on a consideration of the pleadings as set out in the plaint that the case which the lower Appellate Court found was inconsistent with that which was put forward on behalf of the plaintiff, I certainly would have held that the plaintiff was not entitled to a decree on the basis of those findings in support of this contention, reliance has been placed by the learned Vakil appearing on behalf of the appellant upon certain decisions which it will be necessary for me to refer to. The first ease relied upon by him is the case of Eshanchunder Singh V/s. Shamachuran Bhutto [1866-67] 11 M.I.A. 7. The Judicial Committee in that case observed that it was incorrect to conclude parties by inferences of fact, not only inconsistent with the allegations in the plaint, constituting the case the defendants had to meet but which were in reality contradictory to the case made by the plaintiff in the Court below. Now applying the principle laid down in that case to the facts of the present case, if upon the facts found by the learned Subordinate Judge it could be said that those facts were inconsistent with the case which the plaintiff put forward, the appellant certainly would have succeeded so far as this contention is concerned. Now, what is the case that was presented in the plaint? It was a plain and simple case to the effect that Wazuddi was the tenant in respect of the holding, that he had transferred the holding to the defendant and that the defendant had not acquired any interest by such transfer and upon that ground relief was sought for in the shape of ejectment. The defendant in the present case set up the plea that, although Wazuddi was the person whose name was recorded in the plaintiff's sheristha as the tenant of the holding) not only he but other persons also who were his co-sharers were tenants in respect of the holding, all of them having derived their interest from Asanullah, the father of Wazuddi. This allegation, in my opinion, is not inconsistent with the allegation which the plaintiff has made in the plaint and, if the Court found, as it has done in the present case, that, although Wazuddi was the recorded tenant the original tenant in respect of the holding Was his father and that ha had other heirs who might or might not have acquired an interest in the holding and who were at the date of the suit not co-sharers in respect of this tenancy with Wazuddi, and if, upon those findings, the Court passed a decree in favor of the plaintiff, I am unable to say that those are findings which are inconsistent with the plaintiff's case. In that view of the matter, I think the first case relied upon by the learned Vakil on behalf of the appellant has no application to the facts of the present case.