PARBHU LAL Vs. BADRI

JUDGEMENT

(1.) This is an appeal from the judgment of a learned single Judge of this Court and to appreciate our judgment it would be necessary to know the facts with some detail. The plaintiff who is the appellant before us brought the suit out of which this appeal has arisen for the ejectment of the defendant from a part of a house on the allegation that the defendant had rented the same from the plaintiff, on a small rent, and having not paid the rent was in arrear and had refused to quit the premises in spite of notice to quit being given to him. The defence was that the defendant was an adopted son of the plaintiff, that the plaintiff was old and unfit to do any work and that out of the earnings of the defendant the house had been purchased. The Court of first instance framed three issues, namely : (1) Whether the house in suit belongs exclusively to the plaintiff or does it belong jointly to the parties and was purchased by joint money? (2) Is the defendant an adopted son of the plaintiff and is his adoption valid? (3) Did the defendant take the house in suit on hire from the plaintiff? If so, on what rent?

(2.) The Court found on issue 2 that there was no adoption at all and further found that the house belonged to the plaintiff having been purchased by him and that the defendant having lived for a long time with the plaintiff lived on the premises in the same way as he did before and that there was no contract of hiring. The learned Munsif decreed the suit on the ground that the property being the plaintiff's the defendant was bound to vacate it at the instance of the former. The defendant went up in appeal to the lower appellate Court and the judgment of the learned Subordinate Judge on appeal has been a matter of great controversy in this Court. We shall come to the judgment later on. The appeal came up before a learned Single Judge of this Court and it was dismissed mainly on the ground that it was concluded by a finding of fact and the counsel for the appellant was not in a position to certify that there was no evidence to support the finding. In this Letters Patent appeal the learned Counsel for the respondent has argued that the learned Counsel for the appellant has urged a point which was not urged before the learned single Judge and that there, fore we should not hear him. On this point, decisions of their Lordships of the Privy Council are conclusive. A point of law may be taken at any time, provided that for the decision of that point no fresh finding be necessary. If the facts admitted or if the findings of the Court be enough for the decision of the point of law, a Court is bound to hear it and if necessary, give effect to it. In the case, of Suraj Mal V/s. Triton Insurance Co. Ltd. , a point of law was taken for the first time before their Lordships of the Privy Council and was given effect to. Since then, there have been other decisions of their Lordships of the Privy Council and the practice of the English Courts is to the same effect. In Prem Narain V/s. Ram Charan , the want of proper sanction by the Local Government was allowed to be taken in a suit instituted under Section 92, Civil P.C., for the first time by their Lordships of the Privy Council though the point had never been urged in India. In the Official Liquidator of M.E. Moolla & Sons Ltd. v. Perrin B. Burjorjee , their Lordships quoted with approval the following from an English decision of the appeal Court: When a question of law is raised for the first time in a Court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea.

(3.) In view of these Privy Council pronouncements, the Full Bench decision of this Court which limited the points of law which could be taken for the first time in the High Court must be deemed to be no longer good law : vide, Ram Kinkar Rai v. Tufani Ahir . Now, we take up the judgment of the learned Subordinate Judge whose findings of facts are to be accepted by us in second appeal. It appears that the defendant's case underwent change from time to time. We have already mentioned that his plea against the plaintiff's claim for ejectment was two-fold, namely, he was the adopted son of the plaintiff and, impliedly therefore bad such right in the house of the joint family as the plaintiff himself, and that the plaintiff had become incapable of earning and the property was purchased with defendant's own money. The last plea implied that the plaintiff had no interest whatsoever in the property in suit. When the statement of the parties was recorded under Order 10, Rule 2 the defendant stated that his earnings were kept with the plaintiff's and with this joint fund, the house, a part of which was in suit, had been purchased. The learned Subordinate Judge, in our opinion, entirely misconceived the defence when he formulated the same in his judgment in the following language: He further pleaded that he was depositing his earnings with the plaintiff and out of the blend. ed fund of the family this house was purchased....