R.B. Misra, J.
1. The present appeal by the plaintiff is directed against the judgment and decree of the 2nd Additional Civil Judge, Agra, dated 1st November, 1966.
2. The plaintiff filed a suit for ejectment, arrears of rent and mesne profits against the defendants on the allegation that defendant No. 1 was his tenant in respect of the disputed open plot while defendant No. 2 was the sub-tenant. The claim was resisted by the defendants on the allegation that the disputed plot belonged to defendant No. 2 and defendant No. 1 had been in possession with his leave and licence. It was further pleaded that he had, subsequently, surrendered his interest in favour of defendant No. 2 and that defendant No. 1 had no interest whatsoever in the toll business carried on this piece of land.
3. The trial court accepted the plaintiff's case and decreed the suit. It definitely found that there was a relationship of landlord and tenant between the parties and that the suit was neither barred by time nor adverse possession, that the suit was not barred by estoppel and acquiescence and that the defendants had not paid rent to the plaintiff. On appeal by the defendants, the lower appellate court reversed the judgment and decree of the trial court holding that the plaintiff had failed to prove the contract of tenancy, as set up by him. The plaintiff has now come up in second appeal to this Court to challenge the judgment and decree of the 2nd Additional Civil Judge, Agra.
4. Sri K. C. Saxena, appearing for the appellant, raised two contentions:
1. From the materials on the record, the contract of tenancy has been amply proved, but the lower appellate court has completely lost sight of the important documents and has illegally branded some of the documents to be suspicious, and,
2. In any case, even if the plaintiff has failed to prove the contract of tenancy, he was entitled to a decree for possession on the basis of title.
5. As the appeal can be disposed of on a pure question of law, it is not necessary to probe into the first point raised by Sri Saxena. I, therefore, propose to decide the appeal on the legal point raised by Sri Saxena, it is true that the plaintiff came to the Court on the allegation that there was a contract of tenancy between him and the defendants. The trial court found in favour of the plaintiff on the question of the contract of tenancy, but the lower appellate court reversed that finding and held that the plaintiff had failed to prove the contract of tenancy. All the same, the lower appellate court found the title of the plaintiff over the land in dispute. The trial court has also negatived the plea of adverse possession set up by the defendants and that finding of the trial court on the question of adverse possession has not been reversed or modified by the lower appellate court with the result that the finding of the trial court on the question of adverse possession and title will have to fee accepted as confirmed by the lower appellate court.
6. Now, the question is whether the plaintiff can get a decree on the basis of title even if he has failed to prove the contract of tenancy set up by him in the plaint. This is no more res Integra and there are a number of Full Bench decisions of this Court and decisions of the Supreme Court as well.
7. In Balmakund v. Dalu, (1903) ILR 25 All 498 (FB) while dealing with the above question, the Full Bench held:
'The fact that no distinct issue as to the plaintiff's title had 'been framed could not be construed to the prejudice of the plaintiff in as much as the issue had in fact been tried, and it could not be said that the defendant had been in any way taken by surprise.'
8. The case, in hand, stands on still better footling. In this case, there was a definite pleading in the written statement denying the title of the plaintiff and the setting up of the title by the defendants themselves on the basis of adverse possession. There were definite pleadings of the parties and the definite issue on the question of title and the trial court recorded findings on these issues. The finding of the trial court, as stated earlier, on the question of adverse possession was not reversed by the lower appellate court and in such a case, the Full Bench case will squarely apply and the plaintiff's suit could be decreed on that basis.
9. In Abdul Ghani v. Musammat Babni, (1903) ILR 25 All 256 (FB) the defendant denied the tenancy set up by the plaintiff and asserted that she had been in adverse possession for a period of seventeen years. The finding of the appellate court was that the plaintiff was the owner of the house and that the defendant occupied the house as a friend with the permission of the plaintiff and that the defendant had never before this asserted her title to the house, and that her possession was permissive. On these findings, it was held by the Full Bench that the plaintiff was entitled to a decree for possession notwithstanding that the case had been that the defendant was his tenant.
10. In Bhagwati Prasad v. Chandramaul : 2SCR286 dealing with such a situation, the Supreme Court observed :
'Undoubtedly 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 toy 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 in considering the application of this doctrine to the facts of a particular case Court must bear in mind the other principle that considerations of form cannot override 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 an 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.'
In view of the principles laid down by the Supreme Court, the suit for possession was decreed on the basis of title although the plaintiff had failed to prove the contract of tenancy. The Supreme Court quoted with approval the aforesaid two Full Bench decisions.
11. On an analysis of the various authorities, there is no manner of doubt that the Court can pass a decree for possession on the basis of title even if the plaintiff had failed to prove the contract of tenancy put up by him provided no prejudice is caused to the other side. In the instant case, both the parties led evidence on the question of title and there was a definite issue framed on the question of title. Therefore, there is no question of any prejudice being caused to the defendants. In these circumstances, the suit should have been decreed on the question of title though the plaintiff failed to prove the contract of tenancy.
12. Learned counsel for the respondents, however, contended that in a suit for possession on the basis of a contract of tenancy, it was not at all necessary for the lower appellate court to record any finding on the question of title or to decree the suit on the basis of title, and, in support of his contention, he placed reliance on the Sibsagar Municipal Board, Sibsagar v. Doval Chandra Barthakur, AIR 1971 Assam 155. There is no quarrel with the proposition of law laid down in that case. In a suit on the basis of the contract of tenancy, all that need be gone into is whether there is a contract of tenancy between the parties and if the plaintiff had failed to prove then the court could dismiss the suit on that basis and it is not necessary to go further in, but in a case where the question of title has also been gone into and the parties were at issue on the point and the parties had led evidence, it is not necessary to direct the plaintiff to file another suit for possession on the basis of title and the suit can be decreed on the basis of the findings recorded by the courts below. The only guiding consideration is that no prejudice should be caused to the other side. In the instant case, I have already observed that there is no question of prejudice to any party. Law courts always abhor the multiplicity of suits.
13. For the reasons given above, the appeal must succeed. It is, accordingly, allowed. The judgment and decree of the lower appellate count is set aside and the plaintiff's suit stands decreed, on the basis of title, only for possession over the disputed plot with costs. But as the suit is being decreed on the basis of title and the plaintiff has not been able to give definite evidence about the actual damages suffered by him, therefore, the plaintiff's suit for the relief of mesne profits cannot be decreed and is dismissed. The defendants may remove the construction set up by them on the disputed land within two months.