Mohamad Yusuf and Others vs Mohamad Waheed

Wort, J.—During the course of argument in this case I changed my mind from time to time on the various subjects which arose, more particularly on the question of whether Article 142 or 144, Lira. Act, would apply to this action assuming that the question of limitation was the proper question to be decided in the case. But it seems to me quite clear that having regard to the observations of their Lordships of the Privy Council in Chhatra Kumari Devi v. Mohan Bikram Shah 1931 PC 196, Article 144 only properly applies to a case in which the defendant is holding adversely to the plaintiff with out title, and their Lordships in that case went on to point out that the defendant there had claimed title in various ways and therefore Article 142 applied and not Article 144.

Mr. Khurshed Husnain appearing on behalf of the defendant-appellants presses me with the contention that the effect of the judgment of the learned Judge in the Court below has been to turn a case of one class into another and therefore to that extent he has been taken by surprise The action was by the plaintiff who claimed to be the landlord of the defendants, and his action was based on the allegation that he had served the defendants with a notice to quit, that the defendants had not gone out and he therefore claimed to eject the defendants. Now the Judge in the Court below, although differing from the decision of the Judge of the trial Court, has confirmed the trial Court''s judgment ejecting the defendants. The trial Court had given the plaintiff a decree accepting the contention which the plaintiff had made and to which I have referred. That Court was satisfied that the plaintiff had made out his title, that the defendants had made out no title and that they were merely the tenants of the plaintiff. The appellate Court held that the plaintiff had made out his title, the defendants had made out no title, but that they were not the tenants of the landlord. It was then proposing to give a decree for possession, and in order to come to a conclusion on that matter the learned District Judge entered into the question of limitation. Now if the matter had rested there no possible argument could have been advanced, because the learned Judge quite distinctly holds that the onus was on the plaintiff and then comes to a certain conclusion as to whether the plaintiff was in possession within twelve years.

Mr. Khurshed Husnain on behalf of the defendant-appellant contends that this question should not have been gone into; that once the allegation that the relationship of landlord and tenant had existed had been negatived, the plaintiff''s case should have been dismissed. Reliance for that proposition is placed upon the case of Narayan Jha v. Jogni Prasad 1934 Pat 184, the decision of a Special Bench, where the learned Chief Justice in delivering judgment relied upon a decision of the Calcutta High Court in Govinda Kumar v. Mohini Mohan 1930 Cal 42, where the following statement appears:

On the other hand if the question of title were raised by the defendant and if it were found as a fact that there was no contract of tenancy the proper course would be to dismiss the suit and not to convert it into a declaratory and possessory suit which was of another nature entirely.

With great respect, if I may say so, that question did not arise, and the observation will be treated with the greatest respect as an expression of opinion. The facts were that the trial Court had entered into the question of Court-fee (that being the matter which came before the Special Bench) and allowed the plaintiff''s claim. On appeal the District Judge came to the conclusion that, having regard to the proper valuation of the suit, the Subordinate Judge had no jurisdiction. The Special Bench came to the conclusion that the learned District Judge was wrong and remanded the case for the purpose of deciding the case on the merits. I do not propose to state in detail the decision but merely to state that the decision of the Calcutta High Court was in substance the same. There the trial Court had held that the proper valuation of a suit of this description was the valuation of the property itself as the defendant tenant, when once notice to quit was served upon him, became a trespasser, and therefore the action in substance was an action in ejectment or for possession of the property, and the correct valuation of the suit was the value of the property itself. The learned Judges deciding that case made the observations which I have just read from the judgment of the Special Bench of this Court. Now in connection with the argument that the Judge by his judgment has converted the suit into one of a different character, the decision of their Lordships of the Privy Council in Mt. Wali Han v. Jogeshwar Narayan 1908 35 Cal 189 is relied upon. That was a case in which their Lordships held that the result of the lower Court''s decision was to convert the suit from one character into another. It was a suit in which the plaintiffs claimed possession of the property on the death of one Mt. Kewal Kuer, and their allegations incidentally against the defendants, who were the appellants before their Lordships of the Privy Council, was that certain alienations made by the widow were not justified in law. I say that question was raised incidentally.

The Courts in India having come to the conclusion on the facts that the lady was not dead, had however allowed the plaintiffs a declaration as to the nature of the alienations to which I have referred, and also a declaration to the effect that they were reversioners or successors as the case might be. The decision of the Courts in India converted the case into an entirely different character from that which it was at the commencement of the suit. In coming to that conclusion Lord Robertson delivering the judgment of the Judicial Committee made this statement:

It appears to their Lordships that the circumstance that some of the media concludendi might be the same in other actions does not vest the Court with any right or duty to pronounce upon them in a suit which has gone by the board because of the failure of the ground of action.

Now I am referred again in this connection by Mr. Sushil Madhab Mullick on behalf of the respondent to the Full Bench decision of the Allahabad High Court in Balmakund v. Dalu (1903) 25 All 498, a decision directly in point. The learned Judges in that Court following a previous decision of the Allahabad High Court, came to the conclusion that the decision of the trial Court in the suit out of which the appeal arose was right, the trial Court there having held that the action was in ejectment, although holding at the same time that the plaintiff had failed to prove the relationship of landlord and tenant none the less gave a decree for the plaintiff. The appellate Court, being the Subordinate Judge, overruled the trial Court and dismissed the plaintiff''s claim. That decision was confirmed by Knox, J., of the Allahabad High Court. Then the matter came before the Pull Bench which reversed the decision of the Judge of the High Court holding in substance that as the plaintiff''s claim was in substance the same, he was entitled to succeed. Now there is one difference between that case and the case before me, and it seems to me that the only real question of substance in this case is whether the difference to which I have referred entitles the appellants to succeed in this appeal. The difference there was this. Both parties bad set up their contesting title that is to say, the plaintiff and the defendant. The defendant had expressly pleaded that the action was barred by limitation and that he was in adverse possession. Now one of the learned Judges in that case was Banerji, J., a Judge who is entitled to the greatest possible respect. Referring to the previous decision of the Allahabad High Court he makes this statement:

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 claim, the Court should grant that relief, if the defendants were not thereby taken by surprise;

and then states:

This is not a case in which the defendant was or could be taken by surprise if the question of the title set up by the plaintiff in his plaint was determined.

Although I have noted the difference between that case and the one before me, the main question which the learned Judges in that case had to decide was whether the question of title had been raised and had been investigated by the parties. Now that much is true in this case. It was quite unnecessary for the: defendants to do so. They in fact claimed adverse title in contradiction to title" by adverse possession and they invited the Courts below to investigate it. Both. Courts have come to the conclusion that they have not established that title. Now it would be a matter of surprise to me if at this time of the day in India a plaintiff, who has established facts which would entitle him to the particular form of relief claimed, should be debarred from obtaining that relief merely because the allegations or some of them had not been established in their entirety. In this case I would remind myself that the question which was not established in favour of the plaintiff here was the fact that the relationship of landlord and tenant existed; and, if I may be allowed to say, the true principle to be applied is that adopted and sot out by Banerji, J. in the case to which I have referred, whether in the circumstances the parties, and in this case the defendants, could be said to have been taken by surprise. Now: two things were gone into. Not only was the question of title gone into but also the actual possession of the parties. Now upon this question depended the issue which was never settled, the principle of limitation to be applied. Now if any one in this case were to complain about being taken by surprise, it would, I imagine, be the person upon whom the onus lay, and, having regard to my view of the Article to be applied in this case, I have no doubt that the onus was on the plaintiff. Now he might well have said, had the decision been the other way, that this was not in issue. He might have said: It is for me to establish if I had been in possession, and'' although I have given evidence of my possession, my evidence would have been of a somewhat different kind had this issue been specifically raised.

The onus was not on the defendants, and having regard to the fact that only the question of possession of the respective parties was gone into, it seems to me that I should be straining the facts of the case if I come to the conclusion that any party here had been prejudiced by the Judge deciding the question of limitation. It is true, as Mr. Khurshed Husnain states, that in the circumstances he might not have been bound to decide the question of limitation, had he in the first place come to the conclusion that the plaintiff had failed to establish the relationship of landlord and tenant, and dismissed the plaintiff''s claim. But although in this Court in the notice of appeal, I see that the question is raised, there does not appear to have been any objection in the Court below to the Judge investigating this question. But in any event, having regard to the view I take of the case, namely that it was upon the plaintiff to establish this fact, it is impossible in my judgment to come to the conclusion that the defendants in this case have been prejudiced by the Judge investigating this matter to which I have made repeated reference, namely the question of limitation. The plaintiff had established a case which entitled him to eject the defendants and in those circumstances the only question which could possibly arise was the question of limitation. If the action of the plaintiff had been dismissed, I cannot imagine what evidence the plaintiff could have called other than the evidence he did produce and what evidence the defendants could have adduced in this case other than that they did adduce, namely that they attempted to establish the fact that they had actually been in possession for a period of thirty years. I need not refer in detail to the judgment of the learned Judge on this question. He has properly placed the onus upon the plaintiff. He has not been satisfied with the evidence of the defendants about the length of time they were in possession and he comes to conclusion that they could have been in possession for no more than eight years. For these reasons it seems to me that the learned Judge was right in the conclusion at which he arrived. The appeal fails and must be dismissed with costs. Leave to appeal under the Letters Patent is refused.