Shibkristo Sircar vs Abdool Hakeem on 19 December, 1879
It is not enough to say that the learned Judge has himself found the facts, because the finding of the lower Court to this effect has been followed by a dismissal of the suit and has also not been accepted by the respondents. On the obvious ground, therefore, that the plaintiff has failed to make out the only case which is set out in the plaint, his suit must fail. For the simple proposition that the plaintiff could not be allowed to make out a new and inconsistent case of this kind in appeal or that he cannot be allowed to adopt the case of the defendants, partly or wholly, in appeal and; ask for relief on that basis, no authority is needed. We have not called on the respondents to cite authorities on the point, and, if any authority were needed, the decision in Shibkristo Sirkar v. Abdool Hakeem which appears to have been followed by our own High Court in subsequent cases, is sufficient for the purpose.