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Baldeo Das vs Haji Khan

High Court Of Judicature at Allahabad|03 August, 1901


JUDGMENT Burkitt, J.
1. In this case the plaintiff sued the defendant, alleging that the defendant was tenant of a certain house belonging to the plaintiff; that the tenancy had commenced some eleven years before; that for the last three years the defendant had ceased to pay rent, and had denied the plaintiff's title. Both the Courts have found that the allegations as to the tenancy are untrue, and have found that the relationship of landlord and tenant has not been shown to have existed between the plaintiff and the defendant. They have therefore dismissed the suit, so far as it was founded on the allegation of tenancy, but have given the plaintiff a decree for possession as owner. Now it seems to me that this decree cannot be supported on the allegations of the plaint. The only way the plaintiff stated himself to be in possession of the property in suit was by alleging that the defendant was his tenant. Had the tenancy been proved, it would have followed that the plaintiff was in possession through his tenant. But it has been found that the defendant was not his tenant. The position therefore is this, that the plaintiff has failed to prove possession over the disputed premises within twelve years before suit. It is alleged, of course, that he was in possession before the commencement of the alleged lease to defendant; of such possession there is not a scrap of evidence, and I am of opinion that in a case like this, where plaintiff's principal allegation has been proved to be untrue, we should not send down an issue to the Lower Court to enable him to establish a subsidiary line of attack. I would therefore allow this appeal, setting aside the decrees of the Lower Court, and dismiss his suit with costs.
Chamier, J.
2. The plaintiff's case was, that he was the owner of the house in suit; that ten or eleven years before the suit he had leased it to the defendant at a monthly rent; that for three years before suit the defendant had paid no rent, and that a few months before the suit he had denied the title of the plaintiff.
3. The defendant in his written statement denied that the plaintiff was the owner of the house, or that he had leased it to the defendant. He pleaded that he had been in adverse possession of the house for more than twelve years, and that the suit was bared by limitation. Both the Courts below have disbelieved j the evidence as to the alleged lease, but they have passed a decree in favour of the plaintiff for possession on the ground, apparently, that the defendant has not proved twelve years' adverse possession. Mr. Ghulam Mujtaba, on behalf of the defendant, relying upon the decision of this Court in Naiku Khan v. Gayani Kuar (1893) I.L.R. 15 All. 186 contends that as the plaintiff failed to prove the case stated in his plaint, the suit should have been dismissed. On the other hand, counsel for the plaintiff has referred us to the judgment of Tyrrell, J., in All Husain v. Ali Bakhsh Weekly Notes 1889 p. 176 and to the judgment of Aikman, J., in an unreported case--S.A. No. 631 of 1899 Balmakund v. Dalu decided on July 10th last Since reported Weekly Notes 1901 p. 157.
4. I am most unwilling to bind a plaintiff too closely to his plaint in a case of this kind, and I agree with the opinion expressed by Aikman, J., that a suit like the one before us should not be dismissed merely because the plaintiff fails to prove that he leased the premises to the defendant, and that if a Court sees that the plaintiff is entitled to the relief which he claims, although on grounds other than those put forward in his plaint, the Court should give that relief, if the defendant would not thereby be taken by surprise.
5. In the present case, however, if the plaintiff's allegation about the lease be eliminated, the suit roust be regarded as one for the possession of immovable property of which the plaintiff has discontinued possession. He alleges that he discontinued possession less than twelve years before the suit, but this is denied by the defendant. It was for the plaintiff to prove that he had been in possession within twelve years before suit. Counsel for the plaintiff does not suggest that, apart from the evidence which has been disbelieved by both the Courts below, there is any evidence on the record that the plaintiff was in possession within twelve years before suit. Looking at the record of the first Court I find that he sought, by means of the evidence as to the grant of a lease, both to prove his possession within limitation and to prevent the defendant from disputing his title. It is contrary to the practice of this Court to remand a case in order to give a plaintiff a second opportunity of proving his case, except for special reasons, and I see no reason why such a course should be adopted in this case. This is not a case in which the Court can see that the plaintiff is entitled to the relief which he claims on a ground other than that stated in his plaint. Nor is it a case in which any evidence tendered by the plaintiff has been wrongly excluded. There is no ground whatever for the admission of fresh evidence. On the evidence now on record the plaintiffs case fails, and should have been dismissed. I therefore concur in the order proposed by my learned colleague, namely, that this appeal should be accepted and the suit dismissed with costs.
6. The appeal is allowed, and the decrees of the Lower Courts are set aside with costs.
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Baldeo Das vs Haji Khan


High Court Of Judicature at Allahabad

03 August, 1901
  • Burkitt
  • Chamier