LOKENATH DEY AND ON HIS DEATH HIS HEIRESS AND LEGAL REPRESENTATIVE, SRIMATI HEMLATA ROY Vs. HARA CHANDRA MAJUMDAR

JUDGEMENT

(1.) THIS is an appeal by the defendants Nos. 1 and 2. against a decision of the learned Subordinate Judge, of Mymensingh, dated the 30th April 1915, reversing the decision of the Munsif of Keshargunj. The suit was brought by a person who claimed as the transferee of a jote right for recovery of possession. The case has been decided in the Lower Appellate Court on the question of adverse possession, Having read that judgment I am of opinion that, if the point was open to the learned Judge to decide, the evidence was ample to warrant him to come to the conclusion that he did. But, on the facts that the learned Judge has found it is almost impossible to hold, having regard to the cases decided by this Court with reference to adverse possession of limited interests, that the plaintiff has established the case of adverse possession. Of course, if the plaintiff was entitled to make that case, it had to be raised. The Point made in this appeal is that the learned Subordinate Judge has decided a case not set up in the plaint; not raised before the Primary Court neither by way of issue nor by way of argument--and which found no place in the grounds of appeal preferred by the plaintiff when he appealed to the learned Subordinate Judge. That, I am afraid, is correct. The gentleman who represents the plaintiff has not been able to show either in the plaint or in the judgment of the First Court or in the issues settled between the parties or in the grounds of appeal which his client preferred to the learned Subordinate Judge that this question of adverse possession of limited interest was raised. It may be an unfortunate result, but we are bound to administer the law as it is. One of the rules of the Court is that you cannot make a case that turns on the evidence which differs from the case Set up in the plaint. THIS case of adverse possession which seems, on the facts found by the learned. Judge, to be a good case was clearly not raised in any of the proceedings and was not open for decision by the learned Subordinate Judge. In that view of the case, the case must go back to the Court of the learned Subordinate Judge to have the appeal re-argued on the matters raised in the plaint and in the issues before the learnedly Munsif and with reference to the points raised in the grounds of appeal preferred by the plaintiff to the lower Appellate Court. The costs of this appeal will abide the result of the re-hearing by the learned Subordinate Judge. Newbould, J.

(2.) I agree.