1. As I hold that the piece of land in question was purchased by and was the land of the ancestors of the plaintiff, and the defendant admits that the plaintiff represents the original purchaser, it follows that the plaintiff is entitled to a verdict, unless the defendant can show that the plaintiff has ceased to be such owner, and the defendant acquired a title as owner either by purchase or by adverse possession.
2. The defendant has filed his written statement, in the 1st and 2nd paras. of which he sets out his title to hiss dwelling-house and the land belonging thereto. In the 3rd para. he says: 'The said premises, when purchased as aforesaid by the defendant, consisted of a building with a compound at the rear thereof, and on the south side of the said compound was a vacant piece of land belonging to the plaintiff, who had also encroached, to the extent of 22 1/2 square yards on the land of the defendant at the south corner of the said compound of the defendant's premises, and which said encroachment is delineated in green on a plan of the defendant's premises hereto annexed and marked C'. The land coloured green on that plan is undoubtedly the land in dispute, and the only meaning to be ascribed to the sentence--'the plaintiff had also encroached, to the extent of 22 1/2 square yards, on the land of the defendant'--is that the plaintiff had unlawfully intruded upon or taken possession of so much land of the defendant. There can be no encroachment without actual possession.
In the 4th para. of the defendant's written statement he says: 'In the year 1865 the plaintiff was about to erect a building on his said vacant piece of land, and also on the said 22 1/2 square yards encroached on by him as aforesaid, when the defendant requested one Chavu Khan Kadri who was the sole manager or munim of the plaintiff in Bombay, not to erect any building on the said 22 1/2 square yards which the defendant claimed as his own.
3. It seems to me that no possible meaning can be ascribed to those 3rd and 4th paras. other than this--that the defendant claimed the 22 1/2 square yards, but that the plaintiff had encroached, i.e., had unlawfully taken possession thereof, and that such unlawful possession existed in 1865, when the plaintiff was about to build.
4. That being so, there is a distinct admission, by the written statement of the plaintiff's possession, although unlawful, up to 1865.
5. The 5th para. of the written statement states that 'subsequently the defendant, in order to avoid litigation, compromised the dispute as to the ownership of this 22 1/2 square yards of land by paying Rs. 3,250 to the said Chavu Khan Kadri', who, the para. goes on to state, on receipt thereof executed certain Gujrathi writings.
6. Thus the defence put forward by the written statement was that the defendant claimed the land in question as his own, but that the plaintiff was in unlawful possession, and that, in order to settle the dispute, the defendant purchased the land from the plaintiff through his agent.
7. At the trial the case set up was a denial in toto of the plaintiff's possession, and proof that the land in question always was in the possession of the defendant and his predecessors in title--in short, a case of adverse possession against the plaintiff.
8. At the close of the defendant's case Mr. Pigot in reply submitted that, after the defendant's admission by his written statement of the plaintiff's possession, it was not competent for him to set up the case of adverse possession.
9. I am not aware that such a case has ever be determined.
10. The 123rd section of the Civil Procedure Code provides that 'written statements shall be brief,... but each statement shall be confined, as much as possible, to a simple narrative of the facts, which the party, by whom or on whose behalf the written statement is made, believes to be material to the case, and which he believes he will be able to prove if called upon by the Court'.
11. That section certainly contemplates that a defendant shall, in his written statement, set forth the case he intends to make at the trial.
12. In the case of Eshenchunder Singh v. Shamachurn Bhutto (11 Moore Ind. Ap. 7; see pp. 20 and 24), in which the decree of the High Court at Calcutta was founded on an assumed state of facts, contradictory to the case alleged in the plaint, and of the evidence adduced in support of it, and which decree was reversed by the Privy Council, Lord Westbury in giving judgment says: 'This case is one of considerable importance, and their Lordships desire to take advantage of it for the purpose of pointing out the absolute necessity that the determinations in a cause should be founded upon a case either to be found in the pleadings, or involved in or consistent with the case thereby made. Unfortunately in the present instance the decision of the High Court appears to be founded upon an assumed state of facts which is contradictory to the case stated in the plaint by the plaintiff, and devoid, not only of allegation, but of evidence in support of it'; and, in conclusion, he says: 'Their Lordships are obliged to disapprove of the decision that has been come to by the High Court. They desire to have the rule observed that the state of facts, and the equities and ground of relief originally alleged and pleaded by the plaintiff, shall not be departed from.'
13. I see no reason why these observations should not be equally applicable to a defendant.
14. Again, in the case of Mohummud Zahoor Ali Khan v. Mussamut Thakooranee Rutta Koer 11 Moo Ind. Ap. 468 Sir James Colvile, in giving judgment, says: 'Though this Committee is always disposed to give a liberal construction to pleadings in the Indian Courts, so as to allow every question fairly arising on the case made by the pleadings to be raised and discussed in the suit, yet this liberality of construction must have some limit. A plaintiff cannot be entitled to relief upon facts or documents not stated or referred to by him in his pleadings.'
15. The same rule was acted on by the High Court of Calcutta in the case of Narainee Dossee v. Nurrohurry Mohonto (Marsh. 70).
16. These cases certainly show that a plaintiff must be held to the state of facts and equities alleged and pleaded by him in his plaint, or involved in or consistent therewith, and I do not see why a defendant is not similarly bound.
17. In the present suit not only is the case of adverse possession not raised by the written statement, but the direct contrary is alleged. The defendant has, in his written statement, solemnly affirmed to be true that very fact which in the witness-box he solemnly affirmed to be untrue, namely, that the plaintiff was in possession in 1865, and that, too, without affecting to give any explanation of the allegations in his written statement, or why his story was altered.
18. The first object of Courts of Justice is, by assertion on the one side and denial on the other, to bring the parties to issue; that is, to ascertain the point in dispute between them, and upon which they are to go to trial. This was done in early times by the parties orally in open Court in the presence of the Judge; now it is done by means of written pleadings. To allow a defendant, who has affirmed or denied one state of facts by his pleadings, to affirm or deny the direct contrary at the trial, would render pleadings worse than nugatory, and make them but a means of working injustice, and would be but to encourage fraud and perjury.
19. I hold, therefore, that it was not competent for the defendant to set up at the trial a case of adverse possession against the plaintiff, as being in direct contradiction of his written statement, and I decline to consider the evidence adduced on that point. The only defence open to the defendant is that of purchase, and this he has failed to prove.