SASTHI CHARAN DE DASS Vs. SAROJINI DEBYA

JUDGEMENT

(1.) This is an appeal on behalf of the defendant in an action for recovery of possession of two parcels of land described as parcels ha (.) and kha (.) in the plaint. As regards the latter parcel the suit has been dismissed, and the matter is not before us. As regards the former parcel, the Court of first instance found that the plaintiff was not exclusively entitled to it as he had alleged in the plaint but was entitled to joint possession. The plaintiff thereupon applied for leave to amend the plaint. This application was refused and the Munsif dismissed the suit as regards the first plot. The plaintiff then appealed to the Subordinate Judge, who argeed with the Court of first instance that the plaintiff was not entitled to exclusive possession as claimed in the plaint, but only to joint possession of this land as part of a larger parcel. The plaintiff then again applied for Jeave to amend the plaint. This application was allowed, and the Subordinate Judge made a decree in favour of the plaintiff for joint possession of one-third share of a larger plot, the boundaries of which were for the first time given in the application for amendment of the plaint.

(2.) The defendant then appealed to this Court and sought to assail the decision of the Subordinate Judge on two grounds, namely, first, that the application for amendment ought not to have been allowed, and secondly, that in any view of the matter, no decree ought to have been made in favour of the plaintiff, till certain questions, as to bona fides of the purchase upon which the plaintiff relied and as to the transferability of the property purchased by him, were decided in his favour. The learned Judge of this Court who heard the appeal in the first instance overruled these objections and affirmed the judgment of the Subordinate Judge.

(3.) The defendant has now appealed to us under the Letters Patent, and on his behalf the objections just stated have been repeated. In our opinion these objections are well-founded and must prevail. No doubt, it cannot be affirmed as a general proposition of law that whenever a party asks for recovery of possession of property on the allegation that he is exclusively entitled to possession thereof, his suit must necessarily be dismissed if he does not prove the exclusive title that he sets up; a decree for joint possession may very well be made, if the evidence establishes that the plaintiff is entitled to joint possession of the parcel claimed in the suit. This principle, however, is of no assistance to the plaintiff in the present case. He asked for exclusive possession of a particular parcel of which the boundaries were set out in the plaint, on the allegation that his vendor was entitled to such possession of the parcel as representing his share of a larger plot when that case failed, he asked for leave to amend the plaint on the allegation that he was entitled to joint possession of the larger plot. This application for amendment ought to have been refused by the Subordinate Judge on two grounds : first, the effect of granting the application for amendment of the plaint would be to allow the plaintiff relief in respect of a share of a larger area than what was mentioned in the original plaint as the subject-matter of the suit; secondly, the application for amendment was made at a time when if a new suit had been instituted it would have been successfully met by the plea of limitation. In our opinion, any relief granted to the plaintiff ought to be restricted to the property which was set out in the original plaint; if he makes out that he is entitled, not to exclusive possession, but only to joint possession of one-third share of the parcel so described, the decree ought to be limited accordingly. This, however, is subject to the decision of the objections upon the question of the bona fides of the transfer under which the plaintiff claims and of the transferability of the property purchased by him. These questions were raised in issues Nos. 4, 5 and 7 in the Court of first instance, bat were expressly left undetermined in the view taken of the title of the plaintiff to recover exclusive possession. The learned Subordinate Judge has not dealt with these questions which must clearly be decided before the plaintiff can ask for a decree.