P L D 1963 Dacca 771 (PLP)

"For that the Courts below erred in law in dismissing the plaintiffs suit in to although the Courts below found that the plaintiffs are korfa raiyat not raiyat under the defendants Nos. 1 and 2." The relevant facts necessary for appreciation of the controversy may briefly be stated as follows : There was a tenancy held in occupancy rights by one Amiran Bibi at a rental of Rs. 3‑8‑11 pies under proforma defendant No.

4. The predecessors of the plaintiffs held some of these lands in under‑raiyati rights under the above named raiyat at a rental of Rs. 5‑5‑

6. Subsequently, the interest of Amiran was sold in execution of a decree for arrears of rent and auction‑purchased by the landlord. The plaintiffs thereafter took settlement of some of those lands together with some more lands purchased by them and thus the raiyati interest of Amiran ceased to subsist and the plaintiffs came to hold the subject-matter of the aforesaid settlement taken by them in raiyad rights direct under the landlord, i.e., the proforma defendant No. 4 They thus claimed to be rakyats holding direct under the landlord. At the same time they also challenged certain proceedings taken by the defendants with respect to these lands as fraudulent, collusive, ineffective and void.

2. The suit was contested by the defendants Nos. 1 and

2. The substance of their defence appears to have been that the plaintiffs were actually holding five of the eight disputed plots in korfa rights under them on the basis of a registered kabuliyat executed at the time of the settlement and that with respect to the remaining lands they were mere Adhiars under them. Thus the plaintiffs claim of raiyati rights direct under the landlord, i.e., the proforma defendant No. 4, was denied.

3. Ultimately, on a consideration of the evidence adduced by both the parties, the learned trial Court held that the plaintiffs' claim of direct tenancy relationship as between them, on the one hand, and the landlord on the other, was without any foundation, that they were actually holding five of the disputed plots as under raiyats under the defendants Nos. 1 and 2, and that with respect to the remaining lands in suit they were their Adhiars. On these findings the suit was dismissed. Against that, there was an appeal which was heard by Mr. F.

1. M. N. Abedin, Subordinate Judge, Bogra. He also concurred with the aforesaid findings arrived at by the learned District Court, though not exactly on identical grounds and, accordingly, dismissed the appeal. The decision of the trial Court was thus upheld. It is in these circumstances that the plaintiffs came up to this Court in second appeal.

4. Mr. Mahbubur Rahman, Advocate, appearing on behalf of the appellants has urged only the above‑mentioned additional ground taken at the hearing and contended that, in view of the findings arrived at by each of the two Courts below that the plaintiffs were actually holding five of the disputed plots as under‑raiyati under the contesting defendants, their decision dismissing the suit cannot be legally justified. His argument, in other words, is that since the said right was determined in favour of his clients, the learned Courts below ought to have rendered a decree accordingly instead of dismissing the suit as they have done. Mr. M. H. Khondkar, Advocate, appearing on behalf of the respondents, has not directly opposed this contention urged by Mr. Rahman and merely expressed his doubt as to whether such a relief could be granted without amending the plaint suitably. In this connection, he has pointed out that the relief that is now being sought is not quite consistent with the case made in the plaint and, as such, it may not be according to him permissible to grant the same with the pleading remaining as it is. I am, however, not impressed with this argument inasmuch as in this particular instance the relief in question does not appear to be wholly inconsistent with the pleading and even if that were so, that cannot, I am afraid, stand in the way of a decree being rendered as contended on behalf of the appellants. There can be no dispute that it was perfectly open to the plaintiffs to make a case to the effect that in case they were found not to be holding direct under the landlord and the relief asked for by them on that basis were found untenable, they might be given a declaration of their under‑raiyati right in the disputed lands under the contesting defendants to the extent such under‑raiyati tenancy was determined So, the only drawback in this case has been an omission on the part of the plaintiffs to make such an alternative case and seek such an alternative relief ; but this omission can hardly be a sufficient justification for driving the parties to a separate suit for deter mination of the question that has actually been adjudicated upon and conclusively determined in this suit. In other words, the said omission cannot, in my opinion, operate as a bar to the grant of the relief prayed for on behalf of the appellants before me. This appears to be in consonance with the principle of law enunciated by the Supreme Court of India in Sriniwas Ram Kumar v. Mahabir Prosad and others (1952 S C A 116), wherein it has been held: "A plaintiff may rely upon different rights alternatively and there is nothing to the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief there under 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 grant 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 no opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes." I am, therefore, inclined to accept the contention of the learned Advocate for the appellants and there should, in my opinion, be a decree in favour of the plaintiffs in terms already indicated above. In this view of the matter, the decree rendered by the Courts below dismissing the plaintiffs' suit cannot be supported.

5. In the result, the appeal is allowed, the decree passed by the learned Courts below dismissing the suit is set aside and instead the suit shall be decreed in part and there shall be a decree in favour of the plaintiffs declaring their under‑raiyati right under the defendants Nos. 1 and 2 with respect to plots Nos. 2212, 2223, 2224, 2225 and 2227 and their possession therein shall be confirmed. The judgments of the Courts below stand modified accordingly. Regard being had to the circumstances of the case, I direct that the parties do bear their own costs all throughout. S. B./A. H. Appeal allowed.