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decree for ejectment can be passed in favour of the plaintiff,. though the specific case of tenancy set up by him is not proved = we are unable to see any error of law in the approach adopted by the High Court in dealing with it. In support of its conclusion that in a case like the present a decree for ejectment can be passed in favour of the plaintiff,. though the specific case of tenancy set up by him is not proved, tile High Court has relied upon two of its earlier Full Bench decisions. In Abdul Ghani v. Musammat Babni(1), the Allahabad High Court took the view that in a case where the plaintiff asks for the ejectment of the defendant on the ground that the defendant is a tenant of the premises, a decree for ejectment can be passed even though tenancy is not proved, provided it is established that the possession of the defendant is that of a licensee. It is true that in that case, before giving effect to the finding that the defendant was a licensee, the High Court remanded the case, because it appeared to the High Court that part of the case had not been clearly decided. But once the finding was returned that the defendant was in possession as a licensee, the High Court did not feel any difficulty in confirming the decree for ejectment, even though the plaintiff had originally claimed ejectment on the ground of tenancy and not specifically on the ground of licence. To the same effect is the decision of the Allahabad High Court in the case of Balmakund v. Dalu (2). It is hardly necessary to emphasise that in a matter of this kind, it is undesirable and inexpedient to lay down any general rule.

PETITIONER:
BHAGWATI PRASAD

Vs.

RESPONDENT:
SHRICHANDRAMAUL

DATE OF JUDGMENT:
19/10/1965

BENCH:
GAJENDRAGADKAR, P.B. (CJ)
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
WANCHOO, K.N.
HIDAYATULLAH, M.
RAMASWAMI, V.

CITATION:
 1966 AIR  735  1966 SCR  (2) 286
 CITATOR INFO :
 R    1980 SC 727 (10)
 RF    1987 SC1242 (6)


ACT:
Practice   &  Procedure-Details in  pleadings-When   deemed
sufficient.
Licensee Ejected, if liable to pay mesne profits.



HEADNOTE:
The  respondent filed a suit alleging that he was the  owner
of a house let out to the appellant as a tenant and  claimed
a decree for the appellant's ejectment, arrears of rent and
future mesne profits.  The appellant admitted that the land
over  which the house had been constructed belonged  to the
respondent  but pleaded that the house had been constructed
by  the appellant at his own cost on the condition  that  he
would continue to occupy it until the amount spent by him on
the construction was. repaid to him by the respondent. The
trial  court  disbelieved the appellant's version  and also
disbelieved  the  agreement  as to the rent  on  which the
respondent relied and held that the relationship of landlord
and  tenant  had  been proved and that the  respondent was
entitled  to a decree for ejectment as well as to a  reduced
-amount by  way of rent and directed the appellant  to pay
damages by  way  of use and occupation till  the  date  of
ejectment.  On appeal the High Court held that the appellant
must be deemed to have been in possession of the house as  a
licensee  and treating the respondent's claim for  ejectment
on the basis that the appellant was proved to be a  licensee
of  the premises, the High Court confirmed the decree for
ejectment; but it set aside the decree to pay past rent and
mesne  profits being  of the view that even  if  the res-
pondent's  case about the tenancy had been proved,  such  a
tenancy would have been invalid because  of  the  relevant
statutory provisions then prevailing in the area.  Both the
appellant and respondent appealed to this Court :
HELD : If a party asked for a relief on a clear and specific
ground, and in the issues or at the trial, no other  ground
was 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 where
the  substantial matters relating to the title of  both the
parties to the suit are touched, though indirectly, 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 fornication 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 issueat
the  trial  and one of them has had no opportunity  to lead
evidence  in  respect  of it, that undoubtedly would  be  a
different matter [290 F; 291 D-F]
In  the present case, having regard to all the facts, the
High  Court  did  not  err  in confirming  the decree for
ejectment on the ground that the appellant was in possession
of  the suit premises as a licensee.  On the pleas taken  by
the appellant in his written statement in clear and  unambi-
guous  language,  only two issues could arise between the
parties : is the
 287
appellant the tenant of the respondent or is he holding the
property  as the licensee subject to the terms specified  in
the  written  statement?  In effect, the  written  statement
pleaded licence, subject to the condition that the  licensee
was  to remain in possession until the amount spent  by him
was returned by the respondent. [292 G-H]
Trojan &  Co. Ltd. v. Rm.  N. N. Nagappa  Chettiar,  [1953]
S.C.R. 789 and Sheodhar Rai & Ors. v. Suraj Prasad Singh  &
Ors., A.I.R. 1954 S.C. 758, referred to.
In  regard  to the respondent's claim for  past  'rent,  no
interference  was called for with the decree passed  by the
High  Court,  but  its decree in relation  to  future  mesne
profits could not be sustained.  Once it was held that the
respondent  was entitled to eject the appellant it  followed
that  from  the date  of the  decree  granting the  relief
ejectment  to the respondent the appellant who remained  in
possession  of the property despite the  decree,  must pay
mesne profits or damages for use and occupation of the said
property until it was delivered to the respondent.  A decree
for  ejectment in  such a case must  be  accompanied  by  a
direction  for payment of  the  future  mesne profits  or
damages. [294F-H]



JUDGMENT:
CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos.  964 and
965 of 1964.
Appeals from  the judgments and decree dated  December 14,
1962 of the Allahabad High Court in First Appeal No. 564  of
1958.
M.   C. Setalvad, J. P. Goyal, for appellant (In C. A. No.
964of 1964) and respondent (In C.A. No. 965 of 1964).
A.   Ranganadham Chetty, E. C. Agarwala and P. C.  Agarwala,
for  respondent (In C.A. No. 964 of 1964) and appellant (In
C.A. No. 965 of 1964).
The Judgment of the Court was delivered by
Gajendragadkar, C.J. These two cross appeals arise  from  a
suit filed by Chandramaul (hereinafter called the plaintiff)
against Bhagwati Prasad (hereinafter called the  defendant)
in  the Court of the Second  Civil  Judge,  Kanpur. The,
plaintiff' alleged that he was the owner of house No.  59/8,
Nachghar,  Birhana Road, Kanpur and that he had let out the
said  house. to the defendant as his tenant.   According  to
the plaint, the plaintiff and the defendant were friends and
enjoyed  mutual  confidence. As  the house was   being
constructed,   the  defendant  wanted  some   premises for
residence, and so, when the ground floor was constructed  he
was let in as a tenant by the plaintiff on a monthly rent of
Rs. 150 in 1947.  In 1948, the first floor was completed and
the  defendant took that portion as well as a tenant  on  an
additional  rent of Rs. 150 p.m. By 1950, another floor had
been added and the defendant was given the said floor as
Sup.C.I./66- 5
288
well on a further additional rent of Rs. 150 p.m. Thus, the
defendant was in possession of the house as a tenant of the
plaintiff  on the condition that he was to pay Rs. 450 p.m.
as  rent.  The defendant continued to pay this rent and was
not  in arrears in that behalf as on the 31st  March,  1954.
Thereafter, he failed to pay the rent, and so, the plaintiff
terminated  his tenancy and brought the present suit on the
30th November, 1955 claiming ejectment against the defendant
and  a decree for Rs. 8,550 as arrears of rent from the 1st
April, 1954  to  the end of October,  1955.   Future  mesne
profits were also claimed.
The  defendant admitted that the land over which  the  house
stood belonged to the plaintiff.  He, however, pleaded that
the  house had been constructed by the defendant at his own
cost  and that too at the request of the plaintiff,  because
the plaintiff had no funds to construct the building on his
own.   Having  constructed the house at his  own  cost, the
defendant  went into possession of the house  on  condition
that the defendant would continue to occupy the house  until
the  amount spent by him on the construction was  repaid  to
him  by the plaintiff. According to the defendant,  he had
spent  Rs.  32,704-1-0 on the construction  of the  house.
Basing himself on this agreement, the defendant resisted the
claim  made  by the plaintiff for ejectment as well  as for
rent.
On  these  pleadings, the learned trial Judge  framed  seven
issues. He disbelieved the defendant's version in regard to
the  construction of the house and found that the  agreement
set up by him in that behalf on the basis that he spent the
money on the construction of the house himself, had not been
established.  He also disbelieved the plaintiffs case  about
the  agreement as to rent ,on which the  plaintiff  relied.
According to the trial Judge, the defendant had admitted the
ownership  of  the  plaintiff, and  having  regard  to the
pleadings  and the evidence adduced by the parties, he came
to  the conclusion that the relationship  of  landlord and
tenant had  been proved.  Having made this  specific  basic
finding,  the  learned trial Judge held that  the  suit was
competent and came to the conclusion that the plaintiff was
entitled to a decree for ejectment as well as for rent.
In regard to the amount of rent, however, the learned  trial
Judge did not accept the plaintiff's version and  considered
the question on the merits.  He held that Rs. 300 p.m. would
be a reasonable rent for the premises in question.  That  is
how  he passed a decree for Rs. 5,700 in  favour  of the
plaintiff as arrears of rent from 1st April, 1954 up to the
31st October, 1955.  The
 289
decree further directed the defendant to pay damages by way
of  use and occupation at the rate of Rs. 300 p.m. till the
date of ejectment.
Against this decree the defendant preferred an appeal before
the  Allahabad High Court.  The High Court has agreed with
the  trial  Court in disbelieving  the defendant's  version
about the construction of the house and about the terms and
conditions  on which he had been let into  possession. The
High  Court  was  also not satisfied  with  the plaintiff's
version about the tenancy between him and  the  defendant.
Having regard to the fact that the defendant had  virtually
admitted  the  title of the plaintiff, the High Court held
that the defendant must be deemed to have been in possession
of  the house as a licensee; and treating  the plaintiff's
claim  for  ejectment on the basis that the  defendant was
proved to be a licensee of the premises, the High Court has
confirmed  the decree for ejectment passed  by  the  trial
Court.
It  has,  however set aside the said decree  insofar  as  it
directed  the defendant to pay past rent at the rate of Rs.
300  p.m. This decision was the result of the fact that the
High  Court  was  not  satisfied  that the  plaintiff had
established  any  of  the terms of  the tenancy.   In that
connection,  the  High Court has referred to the  fact that
even  if  the  plaintiffs case about the  tenancy  had been
proved, such a tenancy would have been invalid because  of
the  relevant  statutory provisions then prevailing  in the
area.  In December,, 1946, the State Government of U.P. had
issued an Ordinance controlling the letting of residential
and non-residential accommodation.  This Ordinance was later
enacted as the U.P. (Temporary) Control of Rent and Eviction
Act (No.  III) of 1947. The material provisions of this Act
as  well as the previous Ordinance require that no  premises
could be lord without the permission of the District let out
by  the land- Magistrate or other  appropriate, authorities
mentioned in that behalf.  Thus, the tenancy not having been
proved, the High Court came to the conclusion that it  would
be inappropriate to allow any rent to the plaintiff at all.
That is how while confirming the decree for ejectment passed
by the trial Court, the High Court rejected the plaintiff's
case  for  rent or for mesne profits.  It appears  that his
claim for future mesne profits was also not upheld.
Against this decree Civil Appeals Nos. 964 and 965 of 1964
have  been  filed  in this Court by the plaintiff  and the
defendant respectively with a certificate granted to them by
the High Court in that behalf. The defendant objects to the
decree, for eject-
290
ment, whereas the plaintiff objects to the rejection of his
claim for the past rent and future mesne profits.
Mr.  Setalvad for the defendant contends that in  confirming
the trial Court's decree for ejectment., the High Court has
made  a new case for the plaintiff, and that,  according  to
him,  is not permissible in law.  The plaintiff came to the
Court with a clear and specific case of tenancy between him
and  the  defendant and that case has been rejected  by the
High Court.  As soon as the plaintiff's case of tenancy was
rejected,  Ms  claim  for ejectment should  also  have been
negative.   In support of this argument  Mr.  Setalvad has
referred  us to the decision of this Court in Trojan  & Co.
Ltd.  v. Rm.  N. N. Nagappa Chettiar(1). In that case, this
Court has observed that it is well-settled that the decision
of  a case cannot be based on grounds outside the  pleadings
of  the parties and it is the case pleaded that has  to  be
found. It is necessary to remember that these observations
were  made in regard to a claim made by the plaintiff for  a
certain sum of money on the ground that the  defendant had
sold   certain shares belonging  to him   without his
instructions,  but he had failed to prove that the sale had
not  been authorised by him.  The question which  the  Court
had to consider in the case of Trojan & Co.(,,) was that  in
view  of the plaintiff's failure to prove his case that the
impugned sale was unauthorised, was it open to him to make a
claim for the same amount on the ground of failure of consi-
deration  ? And this Court held that such a claim which was
new  and  inconsistent with the original case could  not  be
upheld.
 There can be no doubt that 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.) The same principle was laid down by this
Court  in  Sheodhar  Rai & Others v. Suraj  Prasad  Singh  &
Others(1).   In that  case,  it was  held  that  where the
defendant  in his written statement sets up a title  to the
disputed  lands as  the  nearest  reversionary,  the  Court
cannot, on his failure to prove the said case, permit him to
make  out  a  new case which is not only  not  made  in the
written statement, but which is wholly inconsistent with the
title set up by the defendant in the written statement. The
new plea on which the defendant sought to rely in that case
was that be was holding the suit property
(1) [1953] S.C.R. 789.
(2) A.I.R. 1954 S.C.R. 758.
 291
under a shikmi settlement from the nearest reversioner.  It
would be noticed that this new plea was in fact not made  in
the  written statement, had not been included in  any  issue
and, therefore, no evidence was or could have been led about
it.   In such a case clearly a party cannot be permitted  to
justify its  claim on a ground which is  entirely  new and
which  is  inconsistent with the ground made by it  in its
pleadings.
But  in considering the application of this doctrine to the
facts  of the present case, it is necessary to 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 obscurely 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 considerations  of
prejudice,  and in doing justice to one  party,  the  Court
cannot do injustice to another.
Therefore,  in dealing with Mr.  Setalvad's  argument, our
enquiry should not  be  so much  about  the  form  of the
pleadings  as their substance; we must find out whether the
ground of  licence  on which the  plaintiff's  claim for
ejectment  has been  confirmed by the High  Court  was  in
substance the subject,-matter of the, trial or not; did the
defendant know that alternatively, the plaintiff would rely
upon  the plea of licence and has evidence been given  about
the said plea by both the parties or not ? If the answers to
these  questions  are in favour of the plaintiff,  then the
technical
292
objection  that the plaint did not specifically make  out  a
case for licence, would not avail the defendant.
Turning then  to the pleadings and evidence in this  case,
there  can be little doubt that the defendant knew  what  he
was specifically pleading.  He had admitted the title of the
plaintiff in regard to the plot and set up a case as to the
manner in which he spent his own money in constructing the
house. The plaintiff led evidence about the tenancy set  up
by We and the defendant led evidence about the agreement  on
which he relied.  Both the pleas are 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  Ms
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.  No   other
alternative  is logically or legitimately  possible. When
parties led  evidence in  this  case, clearly  they were
conscious of this position, and so, when the High Court came
to the conclusion that the tenancy had not been proved, but
the defendant's agreement also had not been established,  it
clearly followed that the defendant was in possession of the
suit  premises by the leave and licence of  the  plaintiff.
Once this conclusion was reached, the question as to whether
any relief can be granted to the plaintiff or not was a mere
matter of law, and in deciding this point in favour of the
plaintiff,  it cannot be said that any prejudice  has been
caused to the defendant.
When Mr. Setalvad was pressing his point about the prejudice
to  the defendant and the impropriety of the course  adopted
by the High Court in confirming the decree for ejectment  on
the ground of licence, we asked him whether he could suggest
to us any other possible plea which the defendant could have
taken if a licence was expressly pleaded by the plaintiff in
the  alternative.  The only answer which Mr.  Setalvad made
was  that in the absence of definite instructions, it  would
not  be possible for him to suggest any such plea.   In our
opinion,  having regard to the pleas taken by the  defendant
in his written statement in clear and unambiguous  language,
only  two  issues could arise between the parties :  is the
defendant the tenant of the plaintiff, or is he holding the
property  as the licensee subject to the terms specified  by
the  written  statement ? In effect, the  written  statement
pleaded licence, subject to the condition that the  licensee
was  to remain in possession until the amount spent  by him
was  returned by the plaintiff. This latter plea  has been
rejected, while the admission about the permissive character
of the defendant's possession remains. That is
293
how  the  High Court has looked at the matter and  we are
unable to see any error of law in the approach adopted  by
the High Court in dealing with it.
In support of its conclusion that in a case like the present
a  decree  for ejectment can be passed in  favour  of the
plaintiff,.  though the specific case of tenancy set  up  by
him  is not proved, tile High Court has relied upon  two  of
its  earlier  Full  Bench  decisions. In  Abdul  Ghani  v.
Musammat  Babni(1), the Allahabad High Court took  the view
that in a case where the plaintiff asks for the ejectment of
the  defendant on the ground that the defendant is a  tenant
of  the premises, a decree for ejectment can be passed even
though tenancy is not proved, provided it  is established
that the possession of the defendant is that of a  licensee.
It  is true that in that case, before giving effect  to the
finding that the defendant was a licensee, the High  Court
remanded  the  case, because it appeared to the High  Court
that  part  of the case had not been clearly  decided. But
once  the  finding was returned that the  defendant  was  in
possession  as a licensee, the High Court did not  feel any
difficulty  in confirming the decree  for  ejectment, even
though the plaintiff had originally claimed ejectment on the
ground of  tenancy and not specifically on  the  ground  of
licence.   To  the  same  effect  is  the  decision  of the
Allahabad High Court in the case of Balmakund v. Dalu (2).
It is hardly necessary to emphasise that in a matter of this
kind,  it  is undesirable and inexpedient to  lay  down any
general rule. The importance of the pleadings cannot,  of
course, be ignored, because it is the 'Pleadings that lead
to the framing of issues and a trial in every civil case has
inevitably to be confined to the issues framed in the  suit.
The whole object of framing the issues would be defeated  if
parties are  allowed  to travel beyond them  and  claim  or
oppose reliefs on grounds not made in the pleadings and not
covered by the issues. But cases may occur in which  though
a  particular  plea  is not  specifically  included  in the
issues, parties might know that in substance, the said plea
is being tried and might lead evidence about it.  It is only
in such a case where the Court is satisfied that the  ground
on  which  reliance  is placed by one or the  other  of the
parties,  was in substance, at issue between them  and that
both of them have had opportunity to lead evidence about  it
at the trial that the formal requirement of pleadings can be
relaxed.   In  the present case,. having regard to  all the
facts, we are unable to hold that the High Court  erred  in
confirming the decree for ejectment passed by the
(1) I.L.R. 25 All. 256.
(2) I.L.R. 25 All. 498.
294
trial  Court  on  the  ground  that  the  defendant  was  in
possession  of the suit premises as a licensee.   In this
case, the High Court was obviously impressed by the  thought
that once the defendant was shown to be in possession of the
suit  premises as a licensee, it would be futile to  require
the plaintiff to file another suit against the defendant for
ejectment  on that basis.  We are not prepared to hold that
in adopting this approach in the circumstances of this case,
the High Court can be said to have gone wrong in law.
The  result is, the appeal preferred by the defendant  fails
and is dismissed.
That  takes  us to the appeal preferred by  the  plaintiff.
This  appeal  is confined to the plaintiff's case  for past
rent   and  future  mesne  profits,  As we  have,   already
indicated,  the judgment of the High Court seems to  suggest
that  the High Court set aside the trial Court's decree for
Rs.  5,700  as well  as for the  payment  of  future  mesne
profits.  It is true that the judgment is somewhat ambiguous
oil  this point, but the decree drawn is clear and it  shows
that  the  plaintiffs claim both for past  rent and  future
mesne  profits has  been rejected by the  High Court. the
application  for leave to appeal to this Court presented  by
the  plaintiff in the, High Court has  expressly  challenged
the  decree passed by the High Court both in regard  to the
past  rent  and the future mesne  profits.   In  fact, the
valuation  of the appeal has been placed at over Rs.  20,000
on  that  basis.   So, there  can  be no  doubt  that the
plaintiff's  appeal is directed against the refusal  of the
High  Court  to grant past rent as  well  as  future  mesne
profits.
In  regard to the plaintiffs claim for past rent, we see  no
reason to  interfere  with the decree passed  by  the High
Court. But  we do not see how the High Court's  decree  in
relation to future mesne profits can be sustained.  Once  it
is  held  that the  plaintiff is  entitled  to  eject the
defendant,  it follows that from the date  of the  decree
granting  the  relief  of ejectment to the  plaintiff, the
defendant who remains in possession of the property  despite
the  decree, must pay mesne profits or damages for  use and
occupation of the said property until it is delivered to the
plaintiff.   A decree for ejectment in such a case  must  be
accompanied  by a direction for payment of the future  mesne
profits or  damages.  Then as to the rate at  which  future
mesne  profits can be awarded to the plaintiff, we  see  no
reason to differ from the view taken by the trial Court that
the  reasonable amount in the present case would be Rs. 300
per month.
295
In the result, the plaintiff's appeal is partly allowed and
a decree is passed in his favour directing the defendant  to
pay to ,he plaintiff future mesne profits at the rate of Rs.
300  p.m. from '.he date of the trial Court's decree,  i.e.,
16th October, 1958, until the date of delivery of possession
of   the  property  in suit  to  the  plaintiff.   In the
circumstances  of this case, we direct that  parties  should
bear own costs in both the appeals.
Appeal allowed in part.
296



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