T.S. Misra, J.
1. This is a defendant's appeal arising out of a suit for his ejectment and also for recovery of arrears of rent and mesne profits from him. The plaintiff alleged that the house in dispute was purchased and constructed by her deceased husband, who died in August 1944, leaving surviving him the plaintiff and the defendants Nos. 2 to 4. The plaintiff further alleged that she admitted defendant No. 1 as a mere licencee in the said premises in January, 1951 and a license deed dated 18th January, 1951 was executed bv the defendant No. 1 in favour of the plaintiff. The defendant No. 1, however, subsequent entered into an agreement of tenancy with the plaintiff in respect of the suit premises agreeing to pay rent at the rate of Rs. 20/- per month. The defendant No. 1, however, failed to pay the rent to the plaintiff since 1st June, 1959 and, therefore, a notice of demand was served on him. Instead of paying the rent he denied the title of the plaintiff whereupon the plaintiff issued a notice of ejectment on 12th September, 1960 which was served on defendant No. 1 on 19th September, 1960. The defendant No. 1 failed to comply with the notice hence the plaintiff filed the suit for the aforesaid reliefs. In the alternative the plaintiff prayed that if it was established that defendant Nos. 2 to 4 were also co-owners of the suit premises a decree for possession be passed in favour of the plaintiff and the defendants Nos. 2 to 4 as well.
2. The suit was resisted by the defendant No. 1 on a number of grounds. He denied the title of the plaintiff in the suit premises and alleged that she was not entitled to sue. He further contended that the suit house belonged to Smt. Achchi Bi who transferred possession of the same to him for aconsideration of Rs. 1,000/-. Smt. Achchi Bi migrated to Pakistan in 1947 and since then the defendant No. 1 has been in exclusive possession of the suit house as owner thereof. He claimed to have perfected his title by adverse possession. He also denied the allegation that he was the licensee of the plaintiff and ultimately became a tenant. He disputed his liability to pay rent or mesne profits to the plaintiff and challenged the validity of the notice. He further alleged that the suit was bad for non-joinder of the two daughters and one son of the plaintiff. The defendants Nos. 2 to 4 also filed their separate written statements but they supported the plaintiff's claim.
3. On these pleadings the trial Court framed a number of issues. It held that the defendant No. 1 occupied the suit premises in January 1951 with the express permission of the plaintiff and was stopped from challenging the title of the plaintiff in view of Section 116 of the Indian Evidence Act. The contention of the plaintiff that the defendant No. 1 ultimately became a tenant on a monthly rental of Rs. 20/- was, however not accepted by the trial Court. It also found that the defendants Nos. 2 to 4 did not object or protest against the sole possession and management by the plaintiff of the suit premises. Having found that the license of the defendant No. 1 was revoked by the notice Ex. 6 on 19th October, 1960 it held that the defendant No. 1 was liable to be ejected and to pay mesne profits at the rate of Rs. 20/- per month with effect from that date. On these findings the suit was decreed, Against that decision the defendant No. 1 preferred an appeal. The appellate Court below confirmed the findings recorded by the trial Court and dismissed the appeal. The defendant No. 1 has now come to this Court in second appeal.
4. The learned counsel for the appellant urged that admittedly Achchi Bi --who was a co-owner--migrated to Pakistan. On her migration to Pakistan her share in the house in suit vested in the Custodian, Evacuee Properties. The plaintiff having not impleaded the Custodian of Evacuee Properties in the suit was not entitled to a decree for ejectment of the defendant No. 1 from the suit premises. In my view this contention cannot be allowed to be raised at this stage in the second appeal. The defendant No. 1 did not plead in the written statement that the Custodian of Evacuee Properties was one of the co-owners. On the other hand he pleaded that he was inducted into possession of the suit premises by Achchi Bi to whom he paid a sum of Rs. 1,000/-. He further pleaded that since the migration of Achchi Bi to Pakistan he had been in exclusive possession of the suit premises as owner there of and maintained to have perfected bis title by adverse possession. The plea to the effect that the custodian of Evacuee Property was one of the co-owners of the suit premises isobviously inconsistent with the plea raised by the defendant No. 1 in his written statement at the trial. Though he had stated that the suit was bad for non-joinder of the two daughters and the son of the plaintiff he did not allege that the suit was bad for nonjoinder of the Custodian of Evacuee Property. No issue was accordingly framed as to whether the Custodian of Evacuee Property had become a co-owner of the house in suit. The defendant No. 1 appellant cannot, therefore, be permitted to raise an argument which is not supported by his pleadings. Even no such ground was taken by the defendant No. 1 in the first appeal which he filed from the decree passed by the trial Court against him. In fact having not pleaded he was not entitled to raise that ground either before the appellate Court below or before this Court. At any rate it is not open to the defendant No. 1 appellant to raise that ground for the first time in the second appeal more particularly when the question involved is a mixed question' of fact and law. Moreover, no notification as contemplated by Section 6 of the U. P. Administration of Evacuee Property Ordinance No. 1 of 1949 evidencing that any share in the house in dispute vested In the Custodian was filed by the defendant No. 1. There is no evidence on the record to establish that the suit house or any share therein was ever declared as an evacuee property. It is not for this Court to declare in these proceedings that the suit house or any share therein became an evacuee property more particularly when the same was not pleaded by any of the parties to the suit. It is by now well-settled that a defendant cannot be permitted to travel beyond his pleadings and make out a new case which is wholly inconsistent with the case set up by him in the written statement. It would be noticed that the new plea now sought to be raised at this stage was in fact not set out in the written statement, and had not been included in any issue, and, therefore, no evidence was or could have been led about it. In such a case clearly the defendant cannot be permitted to defeat the claim of the plaintiff on a ground which is entirely new and which is inconsistent with the ground made by him in his pleadings.
5. It was next urged on behalf of the appellant that the plaintiff alone was not entitled to seek eviction of the defendant No. 1 from the said premises. This contention also has no merits. The concurrent findings recorded by the courts below are that the appellant was admitted as a licensee in the house in suit and that under some mutual arrangement amongst the heirs of the husband of the plaintiff the plaintiff was managing the house in suit exclusively and had been authorised by them to represent them for the purposes of management of the house including the right to issue a notice and to bring a suit for the ejectment of the defendant. The other heirs of the husbandof the plaintiff were impleaded in the suit as defendants Nos. 2 to 4 but they did not deny the claim of the plaintiff to seek ejectment of the defendant No. 1 from the suit premises. In view of the provisions of Section 116 of the Indian Evidence Act the defendant No. 1 was estopped from challenging the title of the plaintiff in the suit premises inasmuch as he was admitted as a licensee in the suit house by the plaintiff. Having been inducted into possession of the suit premises by the plaintiff as a licensee the defendant No. 1 was liable to be ejected from the suit premises at the instance of the plaintiff. Both the Courts below found that the license of the defendant No. 1 stood revoked with effect from 19th October, 1960 when the period of notice Ex. 6 expired. His possession thereafter was not lawful. The plaintiff being one of the co-owners of the property could protect the property by filing a suit for ejectment of the defendant No. 1 whose possession was that of a trespasser with effect from 19th October, 1960. In a case where the plaintiff asks for the ejectment of the defendant on the ground that the defendant was a tenant of the premises a decree for ejectment may be passed even though tenancy is not proved provided it was established that the defendant was put into possession of the premises by the leave and license of the plaintiff.
6. No other plea was pressed.
7. In the result, the appeal fails and is accordingly dismissed with costs.