decision of the Caste Certificate Scrutiny Committee attained finality - he is not Halba community - not entitled for any relief claimed = the appellant is not entitled for any relief on the finding that his appointment as Chemical Examiner in the Customs and Central Excise Department vide appointment letter dated 16th June, 1995 had not attained finality. Notably, the Caste Certificate Scrutiny Committee has finally answered the factum of caste claim of the appellant on the basis of relevant material, which is indicative of the fact that in the relevant official record pertaining to even the close relatives of the appellant (grandfather and uncle), the caste recorded is “Koshti” and occupation shown as weaving separately. The appellant has allowed that decision of the Caste Certificate Scrutiny Committee dated 10th February, 2003/22nd April, 2004 to attain finality. The Scrutiny Committee has unambiguously held that the appellant does not belong to “Halba” Community, a notified Scheduled Tribe in Maharashtra. The High Court was, therefore, right in allowing the writ petition filed by the Department and to restore the termination order dated 8th June, 2004.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 9182 OF 2012


B.H.KHAWAS                                   ………… APPELLANT
                                   VERSUS


UNION OF INDIA & OTHERS                      ………RESPONDENTS




                            J U D G M E N T



A.M. KHANWILKAR, J.


This appeal challenges the judgment of the Division Bench of the High  Court
of Judicature at Bombay  in  Writ  Petition  No.  7101  of  2005  dated  8th
February 2012.   The  High  Court  reversed  the  decision  of  the  Central
Administrative Tribunal, Bombay Bench at Mumbai  in  OA  No.  419  of  2004,
dated 3rd March, 2005.  The Tribunal had allowed  the  original  application
filed by the appellant whilst setting aside the termination order dated  8th
June, 2004 and instead  had  directed  the  respondents  to  re-instate  the
appellant in service.





2.    Briefly stated, the appellant  was  appointed  as  “Chemical  Examiner
Grade–I” in the Customs and Central Excise Department in the  pay  scale  of
Rs. 3000-100-3500-125-4500, vide appointment letter dated 16th  June,  1995,
subject  to  fulfilling  terms  and  conditions  mentioned  herein.  As  the
appellant was appointed against the vacancy reserved  for  Scheduled  Tribe,
Condition (vii) of the said Appointment Letter is  of  some  relevance.   It
reads thus:-

“(vii). In case you belong to  Scheduled  Caste/Tribe,  the  appointment  is
provisional  and  is  subject  to  verification  of  Scheduled   Caste/Tribe
certificate through proper channels and if on verification,  your  claim  to
belong to Scheduled Caste or Scheduled Tribe, as the case may be,  is  found
to be false, your services will be terminated  forthwith  without  assigning
any reason and without prejudice to such further action that  may  be  taken
under the Indian penal Code for production of false certificate.”
                                               (emphasis supplied)

      3.    Before joining the post of Chemical Examiner in the Customs  and
Central Excise Department on 21st November, 1995, the appellant  had  worked
in other Departments of the Government of India; on being  selected  through
the Union Public Service  Commission,  to  the  post  of  “Senior  Technical
Assistant” in the Indian Bureau of Mines from 14.02.1985 to  12.05.1986;  as
an “Assistant Chemist (Group B Gazetted)” in the Geological Survey of  India
between 15.05.1986 to 31.05.1989; as “Chemist (Groups A  Gazetted)”  in  the
Indian Bureau of Mines between 05.06.1989 up to 12.04.1994; and  as  “Deputy
Director (Ind. Hygiene)” in the Directorate General Factory Advice  Services
and Labour Institutes from  13.04.1994  to  10.11.1995.  The  appellant  was
declared confirmed in the grade of  “Assistant  Chemist”  w.e.f.  15.05.1988
vide notification  dated  05.05.1995.   All  these  appointments  were  made
against  the  Scheduled  Tribe  reserved  category.   However,  lastly,  the
appellant joined the Customs and  Central  Excise  Department  as  “Chemical
Examiner Grade I”, from 21st November, 1995 pursuant  to  appointment  order
dated 16th June, 1995.  He was working on that post till his  services  were
terminated vide order dated 8th June, 2004, consequent to  the  decision  of
the Caste Certificate Scrutiny Committee – that the  appellant  belonged  to
caste “Koshti”, which is not a Scheduled Tribe in the State of Maharashtra.



      4.    When the appellant was appointed in the Indian Bureau of  Mines,
as Chemist in Group A, the said Department vide letter dated  13th  January,
1989 had referred his case for  Caste  Certificate  scrutiny  to  the  Caste
Certificate Scrutiny Committee, Nagpur.  The Scrutiny  Committee  after  due
enquiry answered the reference vide order  dated  16th  January,  2001.   It
found that  the  appellant  belongs  to  Caste  “Koshti”,  which  is  not  a
Scheduled Tribe.  That decision of the Scrutiny Committee was challenged  by
the appellant by way of a Writ Petition No. 376 of  2001,  before  the  High
Court of Judicature at Bombay,  Nagpur  Bench  at  Nagpur,  as  having  been
passed in violation of procedural compliances. That contention commended  to
the High Court, as a result of which the decision of the Scrutiny  Committee
was quashed and set aside and  the  matter  was  remanded  to  the  Scrutiny
Committee for redetermination of the claim afresh. After  fresh  enquiry  in
terms of the High Court decision, vide order dated 10th February, 2003,  the
Scrutiny Committee finally opined as follows:-

      “ After considering all the documents and facts & in exercise  of  the
powers vested vide Government Resolution, Corrigendum  and  Maharashtra  Act
quoted in the preamble at Sr. No.1 to 3 above, the Caste Scrutiny  Committee
has come to the conclusion  that  Shri  Bhojraj  Haribahu  Khawas  does  not
belong to the Halba, Scheduled Tribe and as such his claim towards the  same
is held invalid. And his caste Certificate  of  his  belonging  to  “Halba”,
Scheduled Tribe granted  by  the  Executive  Magistrate,  Nagpur  Vide  R.C.
No.181/MRC-81/81/82, dated 14.9.81 is hereby cancelled.”

      5.    On receipt of the said order of the Caste  Certificate  Scrutiny
Committee, the appellant  made  representations  to  the  Chairman,  Central
Board of Excise and Customs on 20.01.2004 and 21.01.2004.  The substance  of
the representations was founded on  the  caste  certificate  issued  by  the
Executive Magistrate, dated  14th  September,  1986,  which,  the  appellant
asserted was obtained bona- fide and in good  faith  on  the  basis  of  the
school record indicating that the appellant  belongs  to  Caste  “Halba”,  a
notified Scheduled Tribe in Maharashtra.   The  appellant  further  asserted
that he did not furnish false information of his  caste;  and  more  so  the
question whether or not “Koshti” caste belongs to  “Halba”  Scheduled  Tribe
was subject matter of immense debate and was conclusively  answered  by  the
Constitution Bench of the Supreme Court in the case of State of  Maharashtra
vs. Milind and Others[1], decided on November 28, 2000. The  appellant  thus
contended that his appointment already  made  on  the  basis  of  the  caste
certificate issued prior to that decision was protected  even  in  terms  of
the dictum of the Constitution Bench in Milind’s case.  This  stand  of  the
appellant,  however,  did  not  find  favour  with  the   Department.    The
Government of India, Ministry of Finance, Department of Revenue,  New  Delhi
instead issued an Office  Order  No.  F.No.A-12026/7/91-Ad.II-B,  dated  8th
June, 2004, cancelling the appointment of the appellant on the  ground  that
the appellant does not belong to Scheduled  Tribe.  This  decision  was  the
subject matter of challenge before the Central  Administrative  Tribunal  by
way of Original Application No. 491 of 2004.  The Tribunal  acceded  to  the
contention of the appellant that the appointment made prior to the  decision
in  Milind’s  case  will  have  to  be  protected.   The  objection  of  the
respondents that the observation of the Constitution Bench in Milind’s  case
was not applicable to  “appointments”  was  rejected.   The  Tribunal  noted
that, in a large number of cases, the Bombay High Court  has  protected  the
appointments of persons belonging to caste “Koshti” following the dictum  of
the Constitution Bench in Milind’s case. Accordingly, the  Tribunal  allowed
the original application and directed re-instatement  of  the  appellant  in
service by setting aside the order of termination.  The operative  order  of
the Tribunal reads thus:

      “On the whole, we  think  that  applicant  has  to  be  given  similar
benefit as has been given by the Hon’ble High Court of Bombay  in  a  number
of cases.  We direct the respondents  to  reinstate  the  applicant  as  his
services were terminated only on the limited ground of his not belonging  to
Halba S/T Community.  The order dated 8.6.2004 is  quashed  and  set  aside.
We, however, make it clear that neither the applicant nor his children  will
claim any further benefit available to a S/T candidate  and  they  shall  be
treated as belonging to Open  Category.   It  is  also  clarified  that  the
respondents are free to take any action against the applicant regarding  his
service  for  any  other  reasons  than  his  not  belonging  to  Halba  S/T
community.”

 Against this decision, the Department filed  a  writ  petition  before  the
High Court, being Writ Petition No. 7101 of 2005. The Division Bench of  the
Bombay High Court, relying on the decision of three Judges’  Bench  of  this
Court in the case of Union of India v/s. Dattatray s/o Namdeo Mendhekar  and
Ors[2], allowed the writ petition and restored the termination  order  dated
8th June, 2004. The appellant has, therefore, approached this Court  by  way
of present appeal.
      6.    The principal argument of the appellant is that the decision  of
the Constitution Bench in Milind’s case  itself  protects  all  appointments
which have become final.  The decision of the three Judges’ Bench relied  by
the High Court in the impugned judgment has been  considered  and  explained
in the subsequent decisions in the case  of  Kavita  Solunke  v/s  State  of
Maharashtra and Ors.[3],  Shalini v/s New English  High  School  Association
and Others[4] and in R. Unnikrishnan and Another v/s  V.K.  Kahanudevan  and
Others [5].  According to the appellant, following the  consistent  view  of
this Court, the appointment, even in the case of the  appellant,  should  be
protected.  For, the claim of the appellant was not a  false  claim,  but  a
bona fide claim founded  on  the  entries  in  the  school  record  and  the
certificate issued by the Executive Magistrate. It is not a  case  of  false
or dishonest claim set up by the appellant; or for that  matter  fabrication
of records or reliance placed on fraudulent caste certificate.



      7.    Per contra, the respondents contend that  the  principle  stated
in the subsequent decisions of this  Court  will  be  of  no  avail  to  the
appellant.  In that, the appellant was appointed on a provisional basis  and
subject to verification of his caste certificate through a  proper  channel.
The Caste Certificate  Scrutiny  Committee  having  finally  considered  the
factual position and opined that the appellant does not belong  to  caste  “
Halba”, a notified Scheduled Tribe but belongs to caste  “Koshti”,  was  not
entitled to continue on the post reserved for Scheduled Tribes.



      8.    Before we proceed further, it would  be  apposite  to  reproduce
the relevant portion  from  the  decision  of  the  Constitution  Bench,  in
Milind’s  case  which  is  the  fulcrum  for  claiming  protection  by   the
appellant. In paragraph 38, in that decision, the Court observed thus:-
“38. Respondent 1 joined the medical course for the  year  1985-86.   Almost
15 years have passed by now.  We are  told  he  has  already  completed  the
course and maybe he is practicing as a doctor.  In this  view  and  at  this
length of time it is for nobody’s benefit to  annual  his  admission.   Huge
amount is spent on each candidate for  completion  of  medical  course.   No
doubt, one Scheduled Tribe candidate was deprived of joining medical  course
by the admission given to Respondent 1.  If  any  action  is  taken  against
Respondent 1, it may lead to depriving  the  service  of  a  doctor  to  the
society  on  whom  public  money  has  already   been   spent.    In   these
circumstances, this judgment shall not affect the  degree  obtained  by  him
and his practicing as a doctor.  But we make it clear that he  cannot  claim
to belong to the Scheduled Tribe covered by the Scheduled Tribes Order.   In
other words, he cannot take advantage of  the  Scheduled  Tribes  Order  any
further or for any other  constitutional  purpose.   Having  regard  to  the
passage of time,  in  the  given  circumstances,  including  interim  orders
passed by this Court in  SLP  (C)  No.  16372  of  1985  and  other  related
matters, we make it clear that the admissions  and  appointments  that  have
become final, shall remain unaffected by this judgment.”
                       (emphasis supplied)

The last sentence in this paragraph is crucial.  The  Court  made  it  clear
that the admissions and appointments that have “become final”  shall  remain
unaffected, by its judgment.





      9.    The moot question in the present case is:  whether  the  subject
appointment of the appellant to the post of “Chemical Examiner”  in  Customs
and Central  Excise  Department  has  in  fact  become  final?   Unlike  the
appointment of the appellant to  the  post  of  Assistant  Chemist,  in  the
Geological Survey of India, was confirmed in terms of Notification No.  1225
B/ A-31013/Asstt. Chemist/95-19C, dated 5.5.1995 with effect from 15th  May,
1988, his appointment to the post of “Chemical Examiner” in the Customs  and
Central Excise Department with which we are concerned  was  provisional  and
subject to verification of his caste claim of “Halba”. It  was  not  treated
as final by the Department till the impugned termination order  was  issued.
Nothing has been brought to our notice by the appellant  to  show  that  his
appointment on that post was in fact treated as confirmed by  the  concerned
Department, before issuing the impugned order of termination. Had it been  a
case of termination from the post  of  “Assistant  Chemist”,  on  which  the
appellant was confirmed by the concerned Department, the argument  canvassed
by the appellant would have assumed some significance and  could  be  tested
with reference to the recent decisions of this Court  pressed  into  service
by the appellant.

10.   Admittedly, the appellant  was  appointed  to  the  post  of  Chemical
Examiner in the Customs and Central Excise Department, where  he  joined  on
24th November, 1995, pursuant to the appointment letter bearing No.  F.No.A-
12026/7/91-AD.II-B, dated 16th June,  1995.   Condition  No.  (vii)  therein
unambiguously mentions that as the appointment of the appellant was  against
the post reserved for Scheduled Tribes, it was provisional  and  subject  to
verification of his caste certificate through a proper channel.   The  caste
certificate of  the  appellant  was  already  under  scrutiny  in  terms  of
reference made by the Controller General, of the  Indian  Bureau  of  Mines,
Nagpur, where the appellant was appointed in  similar  manner  on  the  post
reserved for Scheduled Tribes.  The mere fact that  the  Scrutiny  Committee
was not able to complete the enquiry on the question of  validity  of  caste
certificate, before the appellant resigned from the services of  the  Indian
Bureau of Mines and joined another Department of Government of  India,  that
would not extricate the appellant from the requirement  of  verification  of
his caste claim of “Halba”,  a  notified  Scheduled  Tribe  in  Maharashtra.
For, the appointment of  the  appellant  as  Chemical  Examiner  Grade-I  in
Customs and Central Excise Department in terms of Appointment  Letter  Dated
16th June, 1995 (Annexure P10), was to  a  temporary  post,  on  provisional
basis and subject to verification of his caste certificate through a  proper
channel.  In such a case, the principle expounded in  the  decisions  relied
by the appellant will have no application.
11.   In the case of Kavita Solunke (supra), it was not in dispute that  the
appellant had satisfactorily completed  the  period  of  probation  and  was
confirmed in service as an Assistant  Teacher  in  due  course.  Enquiry  in
respect of her caste claim was insisted  upon  “after  a  decade”  from  her
initial appointment, obviously after the  decision  in  Milind’s  case.  The
Court held that the appointment of the appellant  having  attained  finality
could not be disturbed. Indeed, the Court noted that there  was  nothing  to
indicate that the caste certificate of the appellant was  false,  fabricated
or manipulated by concealment or  otherwise.  That  observation  is  in  the
context of the matter in issue before the Court, for  passing  an  order  in
equity. Even in the next case, in Shalini (supra) which follows  the  dictum
in Kavita’s case, it is seen that the appointment of  the  appellant  as  an
Assistant Teacher had attained finality as she  was  in  service  since  6th
November, 1981 and confirmed w.e.f. 1st January, 1984, for which  the  Court
held that the same should not  be  disturbed.  Similarly,  in  the  case  of
Unnikrishnan and Another (supra), the Court  was  dealing  with  the  matter
where the caste claim was already made subject matter  of  challenge  before
the Court and was upheld. It was a case where a judicial order passed  inter
partes had become final on  that  issue.  In  that  case,  the  caste  claim
enquiry was insisted because of the subsequent Presidential Order  excluding
the concerned caste from the entry notified under  notification  dated  31st
August 2007.  The Court,  inter  alia,  opined  that  it  was  not  open  to
reconsider the settled judicial  pronouncement  on  the  caste  claim  inter
partes.
12.   In none of the cases  pressed  into  service  by  the  appellant,  the
appointment, as in this case,  was  on  provisional  basis  and  subject  to
verification of caste certificate through proper  channel.   It  necessarily
follows that the principle expounded in  the  three  decisions  referred  to
above, can have no application to the case on  hand.   Indubitably,  if  the
argument of the appellant was accepted, it would inevitably  mean  that  all
appointments made before 28.11.2000 must be protected  even  though  it  had
not become final. That would also mean that all  caste  certificates  issued
to persons belonging to  “Koshti”  community,  as  being  “Halba”  Scheduled
Tribe in Maharashtra, prior to November 28, 2000 (the day on which  Milind’s
case  was  decided  by  the  Constitution  Bench),   have   been   validated
irrespective  of  the  opinion  of  the   Scrutiny   Committee   qua   those
certificates. That cannot be countenanced. For, caste “Koshti” is neither  a
synonym nor part of a notified Scheduled Tribe “Halba” in Maharashtra.
13.   Considering the above, the appellant is not entitled  for  any  relief
on the finding that his appointment as Chemical Examiner in the Customs  and
Central Excise Department vide appointment letter dated 16th June, 1995  had
not attained finality. Notably, the  Caste  Certificate  Scrutiny  Committee
has finally answered the factum of caste  claim  of  the  appellant  on  the
basis of relevant material, which is indicative of  the  fact  that  in  the
relevant official record pertaining to  even  the  close  relatives  of  the
appellant (grandfather and  uncle),  the  caste  recorded  is  “Koshti”  and
occupation shown as weaving  separately.  The  appellant  has  allowed  that
decision of the Caste Certificate Scrutiny Committee  dated  10th  February,
2003/22nd April,  2004  to  attain  finality.  The  Scrutiny  Committee  has
unambiguously held that the appellant does not belong to “Halba”  Community,
a notified Scheduled Tribe in Maharashtra. The High  Court  was,  therefore,
right in allowing the writ petition filed by the Department and  to  restore
the termination order dated 8th June, 2004.
      14.   Accordingly, we find no  merit  in  this  appeal;  the  same  is
dismissed with no order as to costs.





                                                            ………..…………………….J.

                                                         (ADARSH KUMAR GOEL)







                                                            …..………………………..J.
                                                           (A.M. KHANWILKAR)



New Delhi;

August 12, 2016.

ITEM NO.1A               COURT NO.1               SECTION IX
(For Judgment)
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

                        Civil Appeal  No(s).9182/2012

B.H. KHAWAS                                        Appellant(s)

                                VERSUS

UNION OF INDIA & ORS.                              Respondent(s)
(with office report)

Date : 12/08/2016 This appeal was called on for pronouncement of
                  Judgment today.


For Appellant(s)
                     Mr. Rajesh Prasad Singh, Adv.


For Respondent(s)


      Hon'ble Mr.Justice A.M. Khanwilkar  pronounced  the  judgment  of  the
Bench comprising Hon'ble Mr. Justice Adarsh Kumar Goel and His Lordship.

      The civil appeal is  dismissed  in  terms  of  the  signed  reportable
judgment.



     (ASHOK RAJ SINGH)                  (VEENA KHERA)
        Court Master                          Court Master
       (Signed reportable judgment is placed in the file)






-----------------------
[1]   [2] (2001) 1 SCC 4
[3]   [4]  (2008) 4 SCC 612
[5]   [6]  (2012) 8 SCC 430
[7]   [8]  (2013) 16 SCC 526
[9]   [10]  (2014) 4 SCC 434

Suit for possession - land lord -Vs- Tenant - Civil Court - Rent Control Court - Power to grant relief - Differences = In Bhagwati Prasad Vs. Chandramaul [A.I.R. 1966 S.C. 735] the plaintiff laid the suit for ejectment of the defendant on the ground that he let out the building to the defendant on rent in different portions on completion of construction of each portion. The defendant pleaded that he constructed the house on the land which belong to the plaintiff. The agreement between them was that he would remain in possession of the house until the amount spent by him in construction the house would be repaid by the plaintiff. The agreement of tenancy pleaded by the plaintiff and the case set up by the defendant were disbelieved by the trial court; nonetheless the trial court held that there existed the relationship of landlord and tenant, fixed a reasonable rent and decreed the suit for ejectment of the defendant and also for recovery of the rent at the rate fixed by it. The High Court set aside the decree of the trial court with regard to the agreement of tenancy but confirmed the decree for ejectment of the defendant. On appeal to this Court on a certificate granted by the High Court, Gajendragadkar, C.J. speaking for a four-Judge Bench observed : 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. Where the relief prayed for in the suit is a larger relief and if no case is made out for granting the same but the facts, as established, justify granting of a smaller relief, Order VII Rule 7 permits granting of such a relief to the parties. However, under the said provisions a relief larger than the one claimed by the plaintiff in the suit cannot be granted. These are cases where the courts which tried the suits were ordinary civil court having jurisdiction to grant alternative relief and pass decree under Order VII Rule 7. A court of Rent Controller having limited jurisdiction to try suits on grounds specified in the special Act obviously does not have jurisdiction of the ordinary civil court and therefore cannot pass a decree for eviction of the defendant on a ground other than the one specified in the Act. If, however, the alternative relief is permissible within the ambit of the Act, the position would be different. In this case the reason for denial of the relief to the plaintiffs by the trial court and the appellate court is that the very foundation of the suit, namely, the plaintiffs are the landlords and the defendant is the tenant, has been concurrently found to be not established. In any event inquiry into title of the plaintiffs is beyond the scope of the court exercising jurisdiction under the Act. That being the position the impugned order of the High Court remanding the case to the first appellate court for recording finding on the question of title of the parties, is unwarranted and unsustainable. Further, as pointed out above, in such a case the provisions of Order VII Rule 7 are not attracted. For these reasons the aforementioned cases are of no assistance to the defendant. In this view of the matter we cannot but hold that the High Court erred in remanding the case to the first appellate court for determination of the title of the parties to the suit premises and for granting the decree under Order VII Rule 7. However, we make it clear that this judgment does not preclude the plaintiffs from filing a suit for declaration of title and for recovery of the possession of the suit premises against the defendant.

CASE NO.:
Appeal (civil) 3406  of  1998



PETITIONER:
RAJENDRA TIWARY

Vs.

RESPONDENT:
BASUDEO PRASAD & ANR.

DATE OF JUDGMENT: 09/11/2001

BENCH:
S.S.N.Quadri, S.N.Phukan




JUDGMENT:


Syed Shah Mohammed Quadri,  J.

This appeal, by special leave, is from the judgment and
order of the High Court of Judicature at Patna in Second Appeal
No.304 of 1990 passed on September 09, 1997.
The parties are referred to as they are arrayed in the trial
court. The respondents-plaintiffs filed Title Suit No.167 of
1982 (12 of 1985) for eviction of the appellant-defendant from
holding No.1600 (new) (old holding No.95) in Ward No.1
having an area of 7-1/2 dhurs, Muhalla Waya Bazar, P.S. Siwan
town P.S.No.231, Siwan, Bihar (for short, the suit premises)
on three grounds -- (1) default of the defendant in payment of
rent from August 14, 1981 under clause (d) of sub-section (1)
of Section 11; (2) reasonable personal requirement in good faith
for the sons of the plaintiffs under clause (c) of sub-section (1)
of Section 11, and (3) damage to the suit premises under clause
(b) of sub-section (1) of Section 11 of The Bihar Building
(Lease, Rent & Eviction) Control Act, 1982 (for short, the
Act). The plaintiffs averred that they purchased the suit
premises under three registered sale deeds of March 17, 1981,
April 09, 1981 and April 14, 1981 from one Kedar Nath Sinha
and immediately thereafter let them out to the defendant on
monthly rent of Rs.300/-; the defendant did not pay the rent
from the date of the commencement of the tenancy.  The
plaintiffs have six sons;  three of them are major.  The plaintiffs
wanted to set up their children in business as they are
unemployed; they, therefore, require the suit premises in good
faith. The defendant contested the suit denying that he took the
suit premises on rent from the plaintiffs.  He stated that he had
taken the suit premises on rent from the said Kedar Nath Sinha
about 33 years back.  He, however, alleged that he entered into
an agreement for purchase of the suit premises and a
Mahadnama (agreement for sale) was executed by the said
Kedar Nath Sinha in his favour on September 14, 1980 and
from that date he has been in possession as owner of the suit
premises.  The defendant also filed Title Suit No.232 of 1983 in
the Court of Sub-Judge, Siwan praying the Court to grant
specific performance of the said Mahadnama  dated September
14, 1980. The said suit is pending.  He denied that the ground
of personal requirement of the plaintiffs was either reasonable
or bonafide.
On April 30, 1985 the trial court after appreciating the
evidence on record dismissed the suit for eviction holding that
there was no relationship of landlord and tenant between the
plaintiffs and the defendant; it found that the plaintiffs had title
to the suit premises; however, finding was recorded on the
question of reasonable personal requirement in favour of the
plaintiffs.  Against the judgment of the trial court, the plaintiffs
filed Title Appeal No.96 of 1985 in the court of 5th Addl.
District Judge, Siwan. On May 26, 1990 the appellate court
affirmed the judgment of the trial court and dismissed the
appeal. The plaintiffs then agitated their claim in Second
Appeal No.304 of 1990 before the High Court of Judicature at
Patna. On September 09, 1997 the High Court allowed the
appeal taking the view that an equitable decree of eviction
could be passed against the defendant on the basis of the title of
the plaintiffs and remanded the case to the first appellate court
on the ground that it did not record any finding on the question
of title of the parties.  That judgment of the High Court is
brought under challenge in this appeal by the defendant.
Mr.P.S.Misra, the learned senior counsel appearing for
defendant, contended that provisions of Order VII Rule 7 of the
Code of Civil Procedure would not be attracted to the suit as the
court was exercising limited jurisdiction under the Act.  Mr.
Misra argued that in a suit for eviction under the Act the
question of title to the suit premises could not be decided and
that had to be done by a civil court in its ordinary jurisdiction
and, therefore, the High Court erred in law in remanding the
case to the first appellate court for deciding the question of title
of the plaintiffs and passing an equitable decree for eviction of
the defendant.
Ms.Asha Jain Madan, the learned counsel for the
plaintiffs, argued that admittedly the suit premises belonged to
the said Kedar Nath Sinha and the plaintiffs purchased the same
under three registered sale deeds from him; they had, therefore,
prima facie title and as admittedly the said Kedar Nath Sinha
had let out the same to the defendant, an equitable decree for
his eviction ought to have been passed by the courts below.
Inasmuch as the trial court on the basis of the sale deeds and
statement of the vendor of the plaintiffs recorded the finding
that the plaintiffs were the owner but the first appellate court
did not go into that question, the High Court was right in
directing the first appellate court to record a finding as to the
title to the suit premises.  Once the plaintiffs established their
title to the suit premises, argued Ms.Madan, even if the
defendant was held not to be the tenant, an equitable decree
could always be passed against the defendant for eviction of the
suit premises.
On the above contentions the question that arises for
consideration is : whether on the facts and the circumstances of
the case the High Court is right in law in holding that an
equitable decree for eviction of the defendant can be passed
under Order VII Rule 7 of C.P.C. and remanding the case to the
first appellate court for recording its finding on the question of
title of the parties to the suit premises and for passing an
equitable decree of eviction against the defendant if the
plaintiffs were found to have title thereto.
It is evident that while dealing with the suit of the
plaintiffs for eviction of the defendant from the suit premises
under clauses (c) and (d) of sub-section (1) of Section 11 of the
Act, courts including the High Court were exercising
jurisdiction under the Act which is a special enactment. The
sine qua non for granting the relief in the suit, under the Act, is
that between the plaintiffs and the defendant the relationship of
landlord and tenant should exist.  The scope of the enquiry
before the courts was limited to the question : as to whether the
grounds for eviction of the defendant have been made out under
the Act. The question of title of the parties to the suit premises
is not relevant having regard to the width of the definition of
the terms landlord and tenant in clauses (f) and (h),
respectively, of Section 2 of the Act.
Inasmuch as both the trial court as well as the first
appellate court found that the relationship of landlord and
tenant did not exist between the plaintiffs and the defendant,
further enquiry into the title of the parties, having regard to the
nature of the suit and jurisdiction the court, was unwarranted.
As the High Court remanded the case to the first
appellate court to decide the question of title of the parties and
grant a decree under Order VII Rule 7, it will be necessary to
quote the said provision here:
 R.7.  Relief to be specifically stated.
Every plaint shall state specifically the relief
which the plaintiff claims either simply or in the
alternative and it shall not be necessary to ask for
general or other relief which may always be given
as the Court may think just to the same extent as if
it had been asked for. And the same rule shall
apply to any relief claimed by the defendant in his
written statement.

A plain reading of Order VII Rule 7 makes it clear that it
is primarily concerned with drafting of relief in a plaint.  It is in
three parts -- the first part directs that the relief claimed by the
plaintiff simply or in the alternative shall be stated specifically.
It incorporates in the second part the well settled principle that
it shall not be necessary to ask for general or other relief which
may always be given as the Court may think just on the facts of
the case to the same extent as if it has been asked for.  The third
part says that in regard to any relief claimed by the defendant in
his written statement, the same rule shall apply.
In Firm Sriniwas Bam Kumar  vs. Mahabir Prasad &
Ors. [A.I.R. 1951 S.C. 177] it is laid down by this Court :
Ordinarily, the Court cannot grant relief to the
plaintiff on a case for which there was no
foundation in the pleadings & which the other side
was not called upon or had an 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.
A demand of the plaintiff based on the defendants
own plea cannot possibly be regarded with surprise
by the latter & no question of adducing evidence
on these facts would arise when they were
expressly admitted by the defendant in his
pleadings.  In such circumstances, when no
injustice can possibly result to the defendant, it
may not be proper to drive the plaintiff to a
separate suit.

In that case the plaintiff filed the suit for specific
performance of the contract for sale.  He alleged that he paid
part of the consideration under the contract to the defendant.
The defendant denied the execution of the contract.  However,
he pleaded that he took money from the plaintiff as a loan.  The
plaintiff failed to prove the contract for sale though the plaintiff
did not claim alternative relief for recovery of the amount paid
under the contract.  The Court passed a decree for recovery of
the amount alleged to have been taken by the defendant as a
loan under Order VII Rule 7.
In Bhagwati Prasad  Vs. Chandramaul [A.I.R. 1966 S.C.
735] the plaintiff laid the suit for ejectment of the defendant on
the ground that he let out the building to the defendant on rent
in different portions on completion of construction of each
portion.  The defendant pleaded that he constructed the house
on the land which belong to the plaintiff.  The agreement
between them was that he would remain in possession of the
house until the amount spent by him in construction the house
would be repaid by the plaintiff.  The agreement of tenancy
pleaded by the plaintiff and the case set up by the defendant
were disbelieved by the trial court; nonetheless the trial court
held that there existed the relationship of landlord and tenant,
fixed a reasonable rent and decreed the suit for ejectment of the
defendant and also for recovery of the rent at the rate fixed by
it.  The High Court set aside the decree of the trial court with
regard to the agreement of tenancy but confirmed the decree for
ejectment of the defendant.  On appeal to this Court on a
certificate granted by the High Court, Gajendragadkar, C.J.
speaking for a four-Judge Bench observed :
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.

Where the relief prayed for in the suit is a larger relief
and if no case is made out for granting the same but the facts, as
established, justify granting of a smaller relief, Order VII Rule
7 permits granting of such a relief to the parties.  However,
under the said provisions a relief larger than the one claimed by
the plaintiff in the suit cannot be granted.
These are cases where the courts which tried the suits
were ordinary civil court having jurisdiction to grant alternative
relief and pass decree under Order VII Rule 7. A court of Rent
Controller having limited jurisdiction to try suits on grounds
specified in the special Act obviously does not have jurisdiction
of the ordinary civil court and therefore cannot pass a decree for
eviction of the defendant on a ground other than the one
specified in the Act. If, however, the alternative relief is
permissible within the ambit of the Act, the position would be
different.
In this case the reason for denial of the relief to the
plaintiffs by the trial court and the appellate court is that the
very foundation of the suit, namely, the plaintiffs are the
landlords and the defendant is the tenant, has been concurrently
found to be not established.  In any event inquiry into title of
the plaintiffs is beyond the scope of the court exercising
jurisdiction under the Act.  That being the position the
impugned order of the High Court remanding the case to the
first appellate court for recording finding on the question of title
of the parties, is unwarranted and unsustainable.  Further, as
pointed out above, in such a case the provisions of Order VII
Rule 7 are not attracted.  For these reasons the aforementioned
cases are of no assistance to the defendant.  In this view of the
matter we cannot but hold that the High Court erred in
remanding the case to the first appellate court for determination
of the title of the parties to the suit premises and for granting
the decree under Order VII Rule 7.
However, we make it clear that this judgment does not
preclude the plaintiffs from filing a suit for declaration of title
and for recovery of the possession of the suit premises against
the defendant. If such a suit is filed within three months from
today we direct that the same shall be tried along with suit filed
by the defendant, Title Suit No.232/1983, in the court of Sub-
Judge, Siwan (Exbt.11) for specific performance of the contract
against the said Kedar Nath Sinha and the plaintiffs.
In the result the judgment of the High Court under
challenge is set aside. The suit of the plaintiffs (respondents) is
dismissed.  The appeal of the defendant (appellant) is allowed
accordingly but in the circumstances of the case without costs.

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