P L D 1958 Dacca 26 (PLP)

The defendant filed an application on the 18th April 1948, objecting to the proposed amendment. The defence of the defendant was that he came from ‑Nepal about 25 years back, found the suit land vacant, erected a but there and began to reside therein As,he was challenged by one Sekandar who claimed to be the proprietor of the land, he bona fide took a settlement from him and since the settlement he has been in possession. The defendant also claimed title by adverse possession. The learned Munsif, who tried the suit in the first instance, framed' the following issues, namely, 0) Is the suit barred by limitation ? (2) Have the plaintiffs their alleged right, title and interest in the suit land ? (3) What relief, if any, can the plaintiffs get ? He found both the issues 1 and 2 in favour of the plaintiffs and decreed the suit so far as the prayer for declaration of title and recovery of khas possession was concerned but he disallowed the prayer for mesne profits. Two appeals were thereafter filed, one by the plaintiffs against the decree disallowing mesne profits and the other by the defendant against the decree declaring plaintiffs' title and allowing recovery of khas possession from the defendant. Plaintiffs' appeal was numbered as Title Appeal No. 229 of 1949 and defendant's appeal was numbered as Title Appeal No. 231 of 1949. In the defendant's Appeal, namely, Title Appeal No. 231 of 1949 before the Court of Appeal below, it was conceded by the defendant's lawyer that the suit lands belonged to the predecessors‑in‑interest of the plaintiffs. The only point that was urged before the Court of Appeal below was that the defendant had acquired a right by adverse possession. The learned Additional Subordinate Judge nega tived that contention, though he records the finding in a peculiar way when he says that the suit is barred by limita tion under Article 144 of the Limitation Act. What he means is obviously that the defendant has not acquired any right by adverse possession so as to defeat the plaintiffs' suit. There is no room for doubt that he really considered the question of adverse possession raised by the defendant and negatived the same. He accordingly dismissed the appeal of the defendant. Having dismissed the defendant's appeal, he saw no reason why the plaintiffs' claim for mesne profits should not be allowed, and he accordingly decreed the plaintiffs' appeal for mesne profits. The defendant has now come up before this Court with two appeals, Second Appeal No. 117 of 1952 being directed against the decree in Title Appeal No. 231 of 1949 and Second Appeal No. 118 of 1952 being directed against the decree in Title Appeal No. 229 of 1949. Mr. Khondkar, who appears on behalf of the defendant. appellant in both the appeals, has raised the following points before me, namely, (1) the defendant having claimed tenancy right, an issue to that effect should have been framed and decided ; (2) even on the admission of the plaintiffs themselves, the suit should have been dismissed ; (3) the provisions of the East Bengal Non‑Agricultural Tenancy Act are attracted to the tenancy of the defendant and the Courts below should have given the defendant protection under the said Act; and (4) the Courts below erred in allowing the amendment of the plaint which had the effect of including a cause of action which arose after the institution of the suit in respect of the lands outside the original plaint. Mr. Roy; the learned Advocate, who appears on behalf of the plaintiffs‑respondents in both the appeals, has tried to repel all the contentions of the learned Advocate for the appellant The defendant‑appellant having confined his sub missions to the Court of appeal below only on the question of acquisition of title by adverse possession, I do not think it is now open to him to ask this Court to re‑open all the other points agitated by him in the trial Court. Besides. in my opinion, there is no substance in any of the first three. points raised by the learned Advocate for the appellant. So far as the first point is concerned, the defendant relied on two pattas and two dakhilas granted by one Sekandar who asserted to be an heir of one Jangli Bibi to whom the suit lands were alleged to belong. The pattas were executed in 1928 and the dakhilas are of the year 1938. In respect of the pattas and the dakhilas, the learned Munsif says at page 9 of the paper book : "Apparently, there is nothing in the form of a title‑deed or a settlement Khatian in support of the contention that the disputed plots belonged to Jangli Bibi. There is also nothing to show that these plots were inherited by Sekandar Ali. Mongal himself admits that he did not see Jangli Bibi and that there is none for the last 10 or 12 years who can demand rent from him as Sekandar Ali's heir. It is also not stated anywhere how Sekandar was Jangli Bibi's heir". This claim of tenancy was not repeated in the Court of Appeal below obviously because the defendant thought it not worth pressing. As regards the second point raised by Mr. Khondkar that the suit ought to have been dismissed even on the admission of the plaintiffs themselves, the learned Advocate has read our to me the deposition of plaintiff No. 1 and has drawn my attention, particularly, to the two following lines in the cross‑examination of the witnesses : "I know Mangal for the last 20 years. He has been residing somewhere near the ghatla within the 2nd schedule land for the last 20 years" The learned Advocate argues therefrom that there is an admission by the plaintiff of Mongal's adverse possession for 20 years. I am afraid I cannot agree. The two lines referred to by the learned Advocate for the appellant should not be divorced from the context. Earlier in his deposition, the witnesses said that Mongal was there by permission of Dhiren Roy and not on the basis of any right. In view of the finding of the Courts below that Mongal's posses sion was permissive, the question of adverse possession hardly arises. As regards the third point of the learned Advocate for the appellant that the defendant is entitled to protection under the East Bengal Non‑Agricultural Tenancy Act, I do not see how the question at all arises in the face of the finding that Mongal had no tenancy whatsoever. I now come to the fourth and the last point raised by the learned Advocate for the appellant. In my opinion, there is much force in the argument of the learned Advocate that a cause of action which arose on the 11th January 1948, with regard to a different parcel of land altogether, could not be added by way of amendment of the plaint filed on the 5th December 1947. As has been noticed earlier, the original plaint contained allegations and prayers with respect to only the lands of schedules I and II and the lands of schedule III are totally different lands, and the cause of action, as stated in the application for amendment, arose long after the filing of the original plaint. It is an established principle of laws that cause of action must be anterior to the suit. Mr. Roy] the learned Advocate for the respondents, also accepts this principle of law, but he says that the defendant not having raised the point in either of the Courts below should not be allowed to raise it here. Mr. Roy also points out that, even in the written objection filed by the defendant opposing the amendment, the only points raised were that the litiga tion would be prolonged and the defendant would have to file an additional written statement. The point, now raised, was not raised in the objection. petition nor it was taken even in the grounds of appeal before the lower Appellate Court, nor in the grounds of appeal here as originally filed, The point is raised for the first time at the hearing of the appeal after serving a copy of the same on the respondents' learned Advocate and the appellant obviously invokes the discretion of this Court under Order XLI, rule 2 of the Code of Civil Procedure. I think that as the point raised is one of pure law and arises on admitted facts, I should not be justified in debarring the appellant from raising it. The following observations of Lord Watson in the case of Connecticut Fire Insurance Company v. Kavanagh (L R 1892 A C 473) are relevant in this connection. He said "When a question of law is raised for the first time in a Court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient, in the interests of justice, to entertain the plea." Mr. Roy then contends that the provisions in the Code of Civil Procedure relating to amendment of pleadings give the Court very wide powers, and the amendment in the present case was within the powers of the Court, and he refers me to two cases~ one in Muvalidher Chatterjee v. The International Film Company, Limited (47 C W N 497) and the other in Bnendraa Kashore Roy v. Naruzzaman Peada and others (49 C W N 649). So far as the case in 47 C W N 497 is concerned, the facts were that the plaintiff entered into a contract with the defendants for exploitation of certain films to be supplied by the defendants who were the importers of films. In pursu ance of the contract, the plaintiff paid Rs. 4,000 to the defendants but, as the defendants failed to make the supply in terms of the contract, the plaintiff put an end to the contract and claimed, amongst other items, the refund of Rs. 4 000 paid by him to the defendants. Plaintiff, having failed to prove breach of contract by the defendants, shifted the ground of his claim in respect of Rs. 4,000 as being one under section 64 of the Contract Act. The plaintiff did not, however, amend his plaint. On the above facts, their Lordships of the Privy Council observed at page 500 of the report as follows "While a rigid practice of refusing leave to amend pleading is far from commendable, to entertain a case of which the pleadings contain no suggestion is another matter altogether. It is unfortunate that a proper application for leave to amend was not insisted on by the High Court and a formal order made thereon, duly safeguarding the rights of the defendants, and ensuring that the basis in fact of the new case made should be set forth with particu larity and exactness by the plaintiff." It will be noticed that their Lordships of the Judicial Committee were dealing with a claim which was also there in the original plaint, but the basis of which was only shifted. So far as the case in 49 C W N 649 is concerned, the facts were that the plaintiff brought a suit for declaration of title and recovery of khas possession. Dr. Sen Gupta, who appeared for the plaintiff‑appellant in that case, made a prayer before Chakravarti. J., as he then was, for an amend ment of the plaint by way of substitution of the prayer by asking for specific performance on the facts as alleged in the original plaint. Even then it was disallowed in the view that the allowance of the prayer would offend against settled principles of law which guide the Courts in such a matter It will be noticed that this was also not the case where a fact which came into existence after the filing of the plaint had to be pleaded by way of amendment of the pleading. So, none of the two cases referred to by Mr. Roy is authority for the proposition that a cause of action which lid not accrue at the date of the institution of the suit, and which relates to a property which was not originally the subject‑matter of the suit, could be brought in by way of amendment of the plaint. Mr. Roy lastly contends that as the questions to be decided both in respect of schedule 11 and schedule III are common questions, and both parties 'have actually adduced evidence in respect of both the schedules, there has been no prejudice to the defendant and the decree should not as such be interfered with. I cannot agree. Causes of action in‑respect of the two schedules have arisen on two different dates. The evidence of possession and dispossession with respect to the two schedules will naturally be different. Moreover, the inclusion of schedule III by way of amend ment of the original plaint being against all principles of law, as discussed above. I cannot possibly maintain the decree. I, therefore, allow Second Appeal No. 117 of 1952 in part, maintain the decrees of the Courts below in respect of the lands of schedule II and dismiss the plaintiffs' suit with regard to the land of schedule 111. be far as Second Appeal No. 118 of 1952 is concerned, the plaintiffs will be given a decree only for the proportionate mesne profits for schedule II lands which will be ascertained by the trial Court and the decree for mesne profits as passed is set aside. As the success is divided, the parties will bear their own costs in this Court. M. S. Order accordingly.