RAGHUBANS PURI Vs. JYOTIS SWARUPA

JUDGEMENT

(1.) In the suit out of which this appeal has arisen the plaintiff asked for a declaration that a sale-deed, dated the 18 of October 1901, of property specified in the plaint, was void and claimed possession of the property detailed in that deed. He put in an alternative claim, that if the plaintiff was not entitled to possession of the buildings upon the land, a decree for possession of the land itself might be passed in his favour and the defendants ordered to remove the materials of the buildings and that the plaintiff might be put into possession of the land. He also asked for any other relief to which he might "in the ends of justice" be entitled.

(2.) It appears that some time between the years 1860 and 1866 the predecessor in title of the plaintiff leased at least a portion of the land in dispute to Mr. Frederic Wilson, the father and predecessor in title of the defendant Charles Wilson. Upon this land buildings were erected and an extensive timber business was carried on therein. It is said that the buildings alone covered an area of about 18 bighas. Mr. Charles Wilson, the son of Mr. Frederic Wilson, succeeded his father in the ownership of the demised premises and sold to the defendant Babu Jyotis Swarupa his interest therein.

(3.) A number of issues were framed, but some of them were not tried under the following circumstances. The plaintiff in his examination under Section 117 of the Code stated his inability to define the lands which were included in the lease. In consequence of this the learned Subordinate Judge passed an order on the 18 of September 1903 directing the plaintiff to amend his plaint by giving the boundaries of the land in excess of the 12 kachha bighas, which the plaintiff alleged was all that had been demised to Frederic Wilson, or by otherwise indicating sufficiently the excess land. The plaintiff stated his inability to do so, and the defendants also admitted the impossibility of giving the boundaries, but they did not admit that the extent of the area of the lease was only 12 bighas. The Court under these circumstances considered that it would be impossible to grant the alternative relief claimed by the plaintiff in his oral evidence under Section 158, Civil Procedure Code, and ordered the suit to proceed on the other issues, and he adds as follows: "The plaint so far as it claims this alternative relief in the general terms of paragraph 11(d) will be held to be rejected under Section 54, Civil P. C.." Both Courts below found that the land which was demised to Mr. Frederic Wilson was demised to him on a permanent lease for building purposes and that he had erected permanent buildings on the laud, and that he and his successors in title had continued to hold the land under the lease up to the present time.