- (1.) JUDGEMENT This is a second appeal by the defendant arising out of a suit for possession of two plots Nos. 203 and 209 situated in village Raipur, Pargana Kewai in the district of Allahabad. Briefly stated the plaintiffs case was that one Raghunandan Singh was an occupancy tenant of the two plots in suit and had mortgaged the same for Rs. 50/- with Bindra, father of the defendant-appellant about thirty years ago i.e., in or about the year 1921 and that Bindra aforesaid was first in possession of the mortgaged plots and after his death the defendant has continued in permissive possession. The plaintiffs case further was that though the mortgage of an occupancy holding was void yet the plaintiff was entitled to recover possession of the land on payment of the debt of Rs. 50/- to the defendant. The defendant contested the suit, inter alia, on the ground that the mortgage set up by the plaintiff did not exist and was only imaginary, that the defendant was in possession of the property as a mortgagee for 60 years under a different mortgage deed dated Phagun Badi 10, Samwat 1929 (1883) Ex. P. 9 for Rs. 99/- executed by the said Raghunandan Singh in favour of the defendants father, it was further pleaded that after the expiry of 60 years, the defendants possession became adverse, which, had matured into fulfledged occupancy rights after the efflux of another 12 years; as such the suit was barred by limitation.
(2.) THE trial Court held that the mortgage set up by the plaintiff was not proved and, therefore, dismissed the suit on this ground alone. It did not go into the question of limitation pleaded by the defendant. Being aggrieved against the aforesaid decree of the trial Court, the plaintiff preferred an appeal, which was allowed by the Court below, decreeing the plaintiffs suit for possession on payment of Rs. 99/- to the defendant on the ground that although the plaintiff had failed to prove his case as set up in the plaint, yet he was entitled to a decree on the case as set up by the defendant; hence this appeal by the defendant. The learned Advocate General appearing on behalf of the defendant appellant has, in the first place, urged that the court below acted illegally and beyond its jurisdiction in decreeing the suit on the pleas which had not been set up by the plaintiff in the plaint. It is true that normally the plaintiff has to lay foundation in the plaint for the relief sought by him and the Court would not decree the suit if the plaintiff had failed to establish his case, as set forth in his pleadings. If he wants a relief on an alternative plea which is inconsistent with his pleadings, the proper course for him is to get the plaint duly amended, so that the defendant may have good notice thereof and may not be taken by surprise. However, if a definite case has been set up by the defendant in his pleadings and the plaintiff subsequently accepts the same, the Court would be justified in decreeing the suit in terms of the defendants case if the plaintiff is found to be entitled to a decree even on that basis, in such a case it is not necessary for the plaintiff to get his plaint amended or to institute a fresh suit for the relief allowable to him on the basis of the case set up in the written statement. In support of his contention Mr. G.P. Bhargava, learned counsel for the plaintiff-respondent has invited my attention to the case of Jai Nandan Tewari v. Umrao Koeri, AIR 1929 All 305 wherein Ashworth, J. observed : "When in the case of usufructuary mortgage a plaintiff sues on the allegation that the property was mortgaged under two mortgages of which he gives the terms from hearsay and the defendant mortgagee admits that he holds the property as mortgagee but under 12 mortgagees, the Court is entitled to allow the plaintiff to succeed upon the admission of the defendant........ even though his plaint set forth mortgages different in number and in other respects." Unfortunately Ashworth, J. had not ascribed any reason for the above dictum which has now been early expounded by their Lordships of the Supreme Court in Firm Sriniwas Kara Kumar v. Mahabir Prasad, AIR 1951 SC 177. In that case a suit for specific performance of a contract was tiled in part performance of which the plaintiff alleged to have paid the defendants some money; the defendants denied the contract and pleaded that the money was taken by them as a loan. In such a contigency, it was held that the Court can pass a decree for recovery of loan in favour of the plaintiff on his failure to prove the contract even though the plaintiff had failed to plead and claim relief on the alternative case set up by the defendants. In his leading judgment Mukerjea, J. pointed out that the High court had taken an undoubtedly rigid and technical view in dismissing the suit of the plaintiff, inasmuch as it was certainly open to the plaintiff to take an alternative case and make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursuance of a contract of sale set up by him could not be established by evidence. His Lordship further observed : "The fact that such a prayer would have been inconsistent with the other prayer is not realty material. A plaintiff may rely upon different rights alternatively and there is nothing in the C.P.C. to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the Court to give him relief on that basis. The rule undoubtedly is that the court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plf. could have made, was not only admitted by the deft. In his written statement but was expressly put forward as an answer to the claim which the pltf. made in the suit, there would be nothing improper in giving the pltf. a decree upon the case which the deft, himself makes. A demand of the pltf. Cased on the defdts own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the deft. in his pleadings, in such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the pltf. to a separate suit."
(3.) IN support of the principle laid down by their Lordships of the Supreme Court in the above case, reliance was placed upon the pronouncement of the Judicial Committee in B. Mohan Manucha v. Manzoor Ahmad Khan, AIR 1943 PC 29. The appeal had arisen out of a suit brought by the plaintiff to enforce the mortgage security. The plea of the defendant was that the mortgage was void. The Privy Council held that it was open in such circumstances to the plaintiff to repudiate altogether the transaction set up by him and claim a relief outside it in the form of restitution under Section 65 of the Contract Act. Although no such alternative claim was made in the plaint, yet the privy Council allowed to be advanced and gave a decree on the ground that the respondents could not be prejudiced by such a claim at all and the matter could not be left to a separate suit. That being the position of law, the Court below was perfectly justified in decreeing the suit of the plaintiff on the case set up by the defendant in his written statement, without insisting on the amendment of the plaint or directing the plaintiff to a separate suit.;