ISHAN CHANDRA DHUPI Vs. NISHI CHANDRA DHUPI

JUDGEMENT

(1.) It is an appeal, under Clause 15 of the Letters Patent, from a judgment of Mr. Justice Chapman in an action in ejectment. The plaintiff instituted this suit on the allegation that he had acquired a raiyati-interest in the land before 1893, and that on the 2nd May of that year, the first defendant became an under-raiyat under him on condition that he would have permanent and heritable rights but would not be entitled to sell, mortgage or exchange the land and that if in contravention of the agreement, he transferred the property, the plaintiff would be entitled to re-enter. In 1908, the first defendant sold his right as an under-raiyat to the second defendant. Thereupon the plaintiff commenced this action on the 8th September 1908 to eject both the defendants; he also prayed that the third defendant who was in occupation as a trespasser might be ejected. The suit was defended by the third defendant, who pleaded that the land did not belong to the plaintiff and that he himself held it as raiyat under the superior landlord of the plaintiff. The Court of first instance dismissed the suit and that decision has been successively affirmed by the Subordinate Judge and by this Court. It has been found that the third defendant did not hold under the landlord of the plaintiff, that the plaintiff had established his alleged title, and that the third defendant came upon the land as an under-tenant of the first defendant. In this view, the Courts below have refused the plaintiff a decree for ejectment. But the Subordinate Judge has stated at the same time that the question whether the third defendant was a tenant under the first defendant would be left open, to be litigated again, between the parties, if occasion should arise. The plaintiff has now appealed to this Court and has argued that the Courts below should not have refused him relief on a ground not only not urged by the third defendant but wholly inconsistent with the defence taken by him in his written statement. In our opinion this contention is well-founded and must prevail.

(2.) No doubt, it cannot be maintained as an inflexible Rule of law that a Court is not competent to determine that the rights of the parties litigants are really different from what is alleged either by the plaintiff or by the defendant. Nabadwipendra Mookerjee v. Madhu Sudan Mandal 16 Ind. Cas. 741 : 18 C. W. N. 473; Jalim Singh v. Choonee Lal 11 Ind. Cas. 540 : 15 C. W. N. 882; Hira Lal v. Gribala Debi 34 Ind. Cas. 444 : 23 C. L. J. 429 But as was explained by Lord Westbury in the case of Eshen Chunder Singh v. Shamacharan Bhutto 11 M. I. A. 7 at p. 21 : 6 W. R. (P. C.) 57 : 2 Sar; P. C. J. 209 : 20 E. R. 3 : 2 Ind. Jur. (N. S.) 87 it is absolutely necessary that the determination in a cause should be founded upon a case either to be found in the pleadings or in volved in or consistent with the case there-by made. In that case, the plaintiff was restricted to the state of fact alleged by him in his plaint. Similary, in the cases of Chova Kara v. Isa bin Khalifa 1 B. 209 : 1 Ind. Dec. (N. S.) 139 and Munchershaw Bezonji v. New Dhuramsey Spinning and Weaving Company 4 B. 576 : 5 Ind. Jur : 482 : 2 Ind. Dec. (N. S.) 891, it was ruled that the defendant must be restricted to the state of facts alleged in his written statement or consistent therewith. In the case before us, there were two alternative assertions before the trial Court. The plaintiff alleged that he was a raiyat in respect of the disputed land under the superior land-lord. The third defendant contradicted this allegation and claimed to be the raiyat under the same landlord. There was no suggestion that the third defendant was an under-tenant under the first defendant who held as a tenant under the plaintiff. In these circumstances, evidence was not and would not be directed to the elucidation of the question whether the third defendant had a tenancy under the first defendant. We are of opinion that the Courts below should not have refused relief to the plaintiff on the ground that the third defendant was a tenant under the first defendant.

(3.) What, then, is the relative situation of the parties? The plaintiff has established his title. The third defendant has failed to prove his assertion. The first defendant was a tenant under the plaintiff. He had no transferable right in the land, yet he has transferred the land to the second defendant. It has further been found that the first defendant, notwithstanding the sale of the entire land of the tenancy, is in occupation of the homestead portion which covers about one-tenth of the entire area, but he has made no arrangement for payment of rent to the plaintiff. There is thus ample indication of his intention to sever all connection with the land as tenant under the plaintiff. In these circumstances, the plaintiff is clearly entitled to take up the position that there has been an abandonment [Sailabala Debi v. Sriram Bhattacharya 7 C. L. J. 303 : 11 C. W. N. 873; Aminunnessa v. Jinnat Ali (2).