MUSAMMAT LAKHRANI KUAR Vs. DHANRAJ SINGH

JUDGEMENT

(1.) This appeal raises at least one very interesting question of law about which I feel considerable doubt, but I do not think I should gain anything by taking time to consider my judgment. I am glad to think that my decision can be reviewed, if so desired, under the Letters Patent.

(2.) The action is brought by the plaintiff for possession of certain property which belonged to her husband as a separated Hindu. Her husband died in 1904. She brought a suit for possession against the defendant in 1907 and succeeded in the first Court. That judgment was affirmed by the Appellate Court in November 1907. The defence had been that the land had been given orally to the defendant by the plaintiff s husband. That defence failed. It was also alleged that the defendant had been in continuous possession since 1895, but of course that would have given the defendant no right in itself. The judgment of the Appellate Court was appealable to the High Court but was not appealed against. That is a decision between the present plaintiff and the present defendant, that the plaintiff was entitled to the property in question and was also entitled to immediate possession in 1907. The question of title, therefore, between the parties is res judicata. The plaintiff applied for execution of the decree which had been given in her favour in the Court of first instance in September 1913. That application was not unnaturally rejected by the Munsif on the 10th of January 1914 on the ground that it was made more than three years after the decree and was, therefore, time-barred. Between 1907 and 1913 something appears to have happened to which I will refer later in my judgment. Upon her application being thus rejected, the plaintiff brought this suit on the 26th February 1914 and obtained a decree for possession in her favour on the 28th of April 1914 in the Munsif s Court. That decision was reversed in appeal by the District Judge on the 18th of June 1914, and from that latter decision this appeal is brought.

(3.) Now, the plaint in this, suit undoubtedly alleged a cause of action founded upon the decree of 1907. It also alleged, for some reason or another, a right of action accruing in 1905. That was clearly wrong because any cause of action anterior to the judgment of 1907 was merged in the judgment. It also alleged in paragraph 2, that the plaintiff could not obtain possession within three years of the decree, and it did not allege that the plaintiff had in fact been in possession at anytime between 1907 and the commencement of this suit. So that when the case came before the Court of first instance, the sole cause of action alleged, which the defendants had any reason to anticipate would be urged against them, was the previous decree. However, as appears from the judgment of the learned Munsif and from the extracts of evidence read by the respondents Counsel to me, it happened that during the hearing of the suit, five days prior to the decision, a witness gave evidence that the plaintiff had been in possession of the land in dispute a year after the decree, viz., in 1908. It is perfectly true, as I have pointed out, that no reliance had originally been placed by the plaintiff upon that fact. It must have taken the defendants and their Pleaders by surprise, and it was clearly a matter in which in justice to the defendants (if the defendants and their Pleaders had desired it) they ought to have been given any further opportunity which they reasonably asked to meet that further allegation. They do not appear to have done so, but one of the defendants Dharam Singh, himself went into the witness-box and apparently contradicted the witness. The learned Munsif was unable to accept the evidence of this defendant and gave excellent reasons for accepting the evidence given by the witness to whom" I have referred, and he held as a fact, after hearing the evidence on both sides on a point which, as I have said, had not been raised in the plaint, that the plaintiff had been in possession of the land within 12 years, viz., in 1908. In my opinion, if that is true, it was a satisfaction of the decree and a fresh cause of action would accrue to the plaintiff, if at any time subsequent to that the defendants re-took possession. It was alleged by the same witness (to whom I have referred) called by the plaintiff, that the defendants did re-take possession, although that statement does not appear in the learned Munsif s judgment but was read to me by the respondents Counsel. Now there are cases, no doubt, in which parties are taken by surprise and in which it is unjust to allow their rights to be defeated by proof of matters which are not alleged and which they have no opportunity of meeting. On the other hand it is undesirable in the interests of justice, where no injustice will otherwise be done to anybody, that a Court should wilfully shut its eyes to relevant facts which are proved in the course of the hearing, raising a cognate though different cause of action to that originally relied upon by the plaintiff. Everybody knows that it may occur that in the early stages of a case, all the facts are not known to the Pleader who draws out the plaint, and every risk of injustice can be avoided by allowing an adjournment, by raising the point on appeal, or by penalising the successful party in costs. In this particular case the defendants appealed. Upon the hearing of the appeal it was open to them to raise any question of law or to point out to, the Appellate Court any unjust consequences which had ensued to them arising out of the admission of the evidence to which I have referred, and the finding at which the learned Munsif arrived. They advanced six grounds of appeal but they took no point about this alleged injustice. The finding of fact to which I have referred is not dealt with at all in the judgment of the lower Appellate Court and must be taken, therefore, not to have been overruled. It, therefore, stands as a finding of fact by which, I am bound, as to which it would be a great misfortune, in my opinion, if I were not entitled to take notice of it, and which, in my opinion, entitled the plaintiff to succeed. I do not think that lander the circumstances of the case, I should be doing right if I sent the case back or referred any further issue on this point. On that single ground, therefore, I allow this appeal and give judgment for the plaintiff. To put the matter in right form I re-settle an issue under Order XLI, Rule 24, to the following effect: "The plaintiff, while in possession of the land in question in 1908, was wrongfully dispossessed by the defendant" and I hold that the plaintiff is entitled to succeed on that ground.