Patna High Court
Gauri Sao And Ors. vs Ramkishun Sao Alias Ram Kishun Das And ... on 23 April, 1968
Equivalent citations: 1968(16)BLJR467
JUDGMENT Raj Kishore Prasad, J.
1. This appeal is by the defendants from the judgment of the learned Subordinate Judge, Barh, setting aside the judgment and decree of the trial court and decreeing the plaintiffs' suit for ejectment and also allowing them compensation at the rate of Rs. 15/- per month as the appellants were admittedly in possession of the disputed house.
2. The plaintiffs' suit was for ejectment of the defendants and also for recovery of arrears of house rent in respect of the suit land. Admittedly, Jittoo Sao, defendant 1, who is now dead, was the own brother-in-law of the plaintiffs, having been married to one of the sisters of the plaintiffs, who are the sons of Inderdeo Sao. The plaintiffs' case was that the land in suit, which is a double storied house, belonged to them and that Jittoo Sao took the lower flat of the house on a monthly rental of Rs. 15/- in the year 1955 and he paid rent for sometime, but thereafter he defaulted in payment of the rent and also refused to vacate the house, and, therefore, the present suit was instituted for eviction and arrears of rent.
3. The suit was contested by the deceased Jittoo Sao and Gauri Sao, son of Jittoo Sao. After the death of Jittoo Sao, original defendant 1, his two married daughters, who are respondents 5 and 6 to this appeal, were substituted as defendants. Jittoo Sao and Gauri Sao both filed a joint written statement in which they admitted that the rent claimed house belonged to the plaintiffs, but they alleged that the house had been orally gifted to Jittoo Sao's wife at the time of his marriage with her about 50 years ago, and, therefore, they claimed that they had title to the land in suit as owners of the house and there was no relationship of landlord and tenant at all.
4. Both the courts below have concurrently held that the plaintiffs have failed to prove the relationship of landlord and tenant between them and the defendants and that the defendants had also failed to prove the alleged oral gift or that they were the owners of the house in question, and, therefore, there was nothing to show that the defendants were in occupation of the house as owners thereof. On these findings, the trial court dismissed the plaintiffs' suit, but, on appeal, the learned Subordinate Judge held that the plaintiffs having title to the land in suit were entitled to a decree in ejectment on the basis of their title and as the defendants were in possession of the house, their possession was as licensees, and, therefore, they were liable to be evicted and to pay compensation to the plaintiffs at the rate of Rs. 15/-per month. On these findings, therefore, the learned Subordinate Judge decreed the plaintiffs' suit for ejectment and allowed them compensation in lieu of rent.
5. Mr. Shyam Kishore Prasad, who appeared for the appellants, contended that the learned Subordinate Judge had no jurisdiction to make out a new case for the plaintiffs, when that case was not specifically pleaded in the plaint. In support of his contention, he relied on three decisions of the Supreme Court, namely, Trojan & Co. v. R.M.N. N. Nagappa Chettiar ; Sheodhari Rai and Ors. v. Suraj Prasad Singh and Bhagwati Prasad v. Chandramaul . In my opinion, the aforesaid cases do not help him.
6. Undoubtedly if a party asks for a relief on a clear and specific ground, and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. But in considering the application of this doctrine to the facts of a particular case Court must bear in mind the other principle that considerations of form cannot over-ride the legitimate considerations of substance. If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt, is that the relief should be founded on pleadings made by the parties; but where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obliquely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the court has to consider in dealing with such an objection is did the parties know that the matter in question was involved in the trial and did they lead evidence about it ? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence would introduce consideration of prejudice, and in doing justice to one party, the Court cannot do injustice to another.
7. The above was the view taken by the Supreme Court in Bhagwati Prasad v. Chandramaul , referred to above. In that case in a suit for ejectment the defendant admitted the title of the plaintiff in regard to the plot and pleaded that he was to remain in possession of the house until the amount spent by him in its construction was returned by the plaintiff. The plaintiff led evidence about the tenancy set up by him and the defendant led evidence about the agreement on which he relied. Both the pleas were clear and specific and the common basis of both the pleas was that the plaintiff was the owner and the defendant was in possession by his permission. In such a case the relationship between the parties would be either that of a landlord and tenant, or that of an owner of. property and a person put into possession of it by the owner's licence, and, no other alternative was logically or legitimately possible. In these circumstances, it was held by the Supreme Court that in absence of proof of tenancy and of defendants' agreement the conclusion of the High Court in first appeal that the defendant was in possession of the suit premises by the leave and licence of the plaintiff, did not cause prejudice to defendant and that there was no error of law if the decree for ejectment was passed. In my opinion, the above case has application to the present case and it supports the respondents.
8. The two Patna cases, referred to by the court of appeal below, namely, Mohammad Mian v. Jugeshwar Prasad A.I.R. 1951 Pat. 550 and, Smt. Kusturi Devi v. Shripal Singh A.I.R. 1954 Pat. 128 support fully the contention of the respondents. From the above cases, the principles laid down can be restated thus:
Where in a suit by the plaintiff for ejectment of the defendant on the allegation that he is a tenant the defendant sets up a title in himself, and the Court on evidence comes to the conclusion that the story of the defendant is false and that he is a licensee, though not a tenant as alleged by the plaintiff, the Court can give the plaintiff a decree for ejectment on basis of title. The court should not drive the plaintiff to file another suit for ejectment on the ground that the defendant was a licensee. Therefore, where in an ejectment suit against a monthly tenant the plaintiff fails to prove the relationship of landlord and tenant, but proves his title the Court has discretion under Order 7, Rule 7 of the Code of Civil Procedure to grant an equitable relief of ejectment on basis of title, provided the plaintiff has done nothing to disqualify him from receiving an equitable relief and the issue of title has been raised and fairly tried. In the instant case, that is actually the position.
9. Mr. Guneshwar Prasad, who appeared for the plaintiffs-respondents, supported the judgment of the court of appeal below on the ground that both the courts below have concurrently found that there was no relationship of landlord and tenant between the parties as alleged by the plaintiffs and further that the defendants had failed to prove their title to the house and that the plaintiffs admittedly had title to the land in suit. In my opinion, in Issue No. 2 of the trial court it was implied that the plaintiffs' title being admitted, they were entitled to a decree for ejectment against the defendants, for which no particular separate issue was necessary at all. The title of both the parties to the house in suit was raised and decided by both the courts below. The title of the plaintiffs to the house in suit was admitted and the defendants' title to the same was negatived. In these circumstances, no question of prejudice arises,
10. For the reasons given above, I would dismiss the appeal and affirm the judgment and decree of the court of appeal below decreeing the plaintiffs' suit for ejectment and also granting them compensation at the rate of Rs. 15/- per month.
11. The fact that there was relationship of brother-in-law between the plaintiffs and the defendants is no ground for defeating the plaintiffs and driving them to a separate suit; but, in view of the relationship, I would direct that the parties do bear their own costs of this Court.