S. Barman. J.
1. Defendants are appellants, in this Second Appeal, from a reversing decision of the learned Second Additional Subordinate Judge of Cuttack, whereby he set aside a decision of the learned Munsif, Athgarh, and decreed, in part, the plaintiffs' suit for recovery of Rs. 1680/- as collections realised by the defendants as alleged Marfatdars in the circumstances hereinafter stated.
2. The relevant facts shortly stated are these: The plaintiff No. 1 is a deity and plaintiff No. 2 is a hereditary trustee of the said deity. The defendants appellants herein claim as Marfatdars of the said deity. On August 16, 1943 the defendants as the then Marfatdars were dismissed. On June 6, 1944 the plaintiff No. 2 was appointed Marfatdar. In 1950, dispute arose between the plaintiff No. 2 and the defendants as rival claimants to the marfatdari right in respect of the deity. On December 29, 1951, a Panchayati sat over the said dispute between the plaintiff No. 2 and the defendants. It was agreed that the defendants would be entrusted with the collections until it was decided as to who is the rightful owner; that the defendants would thus continue as trustees until decision as to title. The defendants admitted that they acted as trustees from 1951-1956. There is no evidence as to who was in charge between 1956 and 1958. In 1958the plaintiff took over the charge after being declared hereditary trustee in a title suit brought by the plaintiff No. 2 being T. S. No. 13/9 of 1953-54 before the Subordinate Judge in which an ex parte decree was passed on August 9, 1958 and plaintiff No. 2 was declared hereditary trustee and the institution an excepted temple.
Thereafter the plaintiff No. 2 demanded the usufruct which the defendants collected during their management which, however, the defendants refused to pay. In December 1956 there were criminal proceedings under Section 145 Criminal Procedure Code in which the plaintiff No. 2 was the first party and the defendant No. 1 was the second party. In the said proceedings the defendant No. 1 was found in possession by the Magistrate. On April 12, 1957 this suit was filed for recovery of usufruct for the five years 1952 to 1956 amounting to Rs. 1680/- as aforesaid on the cause of action as stated in the plaint, the implications whereof I shall deal with hereafter.
The defence taken in the suit was that the defendants are all trustees, enjoying the usufruct and performing the Seva of the deity; that the defendants are bound by the decree in the said Title Suit No. 13/9 of 1953-54 as the defendants were not parties to the said suit. The defendants denied that there was any Panchayati as alleged or that the defendants agreed to the terms as alleged or at all. With regard to the amount of usufruct, claimed by the plaintiffs in the suit, the defendants pleaded that there was complete failure of crops in 1952, 1953 and 1956; that there was partial failure of crops during 1954 and 1956; that the usufruct realised by defendants was spent for the Seva of the deity and thus there is nothing payable by the defendants as claimed. That apart a point of limitation was also taken on behalf of the defendants pleading that Article 109 of the Limitation Act is applicable; that the plaintiffs' claim for that portion of the usufruct, which is alleged to have been wrongfully received by the defendants beyond three years from the date of the suit,--is barred by limitation.
3. In a judgment dated February 3, 1958 the trial Court held that the suit was based on the agreement by the defendants and the Panchayati and that in view of the decree in Title Suit No. 13/9 of 1953-54 passed on August 9, 1955 when, according to the trial Court, the cause of action arose, and thus the suit having been filed within three years from the said date, was not barred by limitation. The trial Court also, held that the defendants are bound by the decree in the said T. S. No. 13/9 of 1953-1954. On the question whether there was Punchayati or the alleged agreement by the defendants on December 29, 1951 as aforesaid, it was held that there was no Punchayati and accordingly there was no question of agreement by the defendants as alleged.
As regards the amount which is alleged to have been kept in deposit by the defendants in terms of the said alleged agreement it was held that there was no such deposit and that the defendant No. 1 has been cultivating the schedule lands during 1952 to 1956. On a question of jurisdiction, which arose, the trial Court held that the defendants having been found to be tenants and as it was a suit forrecovery of rent the suit must go to the Revenue Court and accordingly found that the Civil Court has no jurisdiction and the plaint was returned for presentation in proper Court.
4. From the decision of the trial Court dated February 3, 1958 an appeal being Misc. Appeal No. 36 of 1958 was filed to the District Judge, Cuttack who, by his judgment dated May 2, 1959, found that the Civil Court has jurisdiction because the question of tenancy did not arise in the suit; it was the dispute arising out of a rival claim to the Marfatdari right which was in issue in the suit and accordingly the District Judge remanded the suit and directed the Munsif to pass necessary consequential order.
5. After remand the trial Court, by its order dated August 31, 1959, dismissed the plaintiff's suit on the basis that there was no Punchayati as he had already found under issue No. 3 in his decision before remand.
6. In appeal from the said decision of the trial Court dismissing the suit, the learned lower appellate Court,--without giving any finding as to whether there was the Panchayati or any agreement by the defendants as alleged,--found that the plaintiff No. 2 was appointed Marfatdar long ago in 1944 in the place of the defendants; that the plaintiff No. 2 was entitled to claim, from the defendants, damages from 1952 to 1956 as Marfatdar; the-defendants had wrongfully appropriated the usufruct as trespassers and accordingly decreed the suit for Rs. 1400/- on the basis as stated in his judgment. Hence this second appeal.
7. The main points, urged herein, are : Firstly that the suit as framed is bound to fail on the finding, that there was no punchayati, and accordingly no question of the defendants' agreement therein as alleged, that is to say, that the learned lower appellate Court was wrong in decreeing the suit on the cause of action not pleaded in the plaint and he decreed the, suit on a new case not pleaded in the plaint; Secondly, that, in any event, assuming that the learned lower appellate Court's finding on the merits be accepted, even so the plaintiff is entitled to a decree not beyond three years from the date of the suit as, according to the defendant-appellants. Article 109 of the Limitation Act is applicable to the facts of this case.
8. On the question of maintainability of the suit, the defence point, in substance, is that the suit as framed is not maintainable for the relief granted; that the basis of the suit is the claim for recovery of the deposit with the defendants under the Panchayati agreement as pleaded in the plaint, but the learned trial Court having found that there was no Punchayati as alleged and the learned lower appellate Court having given no finding on this point, his decision, -- that the plaintiff No. 2 is entitled to damages of Rs. 1400/- as amounts wrongfully realised by the defendants during five years from 1952 to 1956,--is wrong. In other words, the learned lower appellate Court was in error in constructing a new case for the plaintiff; that is not open to a Court in appeal to consider media concludendi not pleaded by a party and to give judgment on such basis; that indeed no relief can be granted to the plaintiff when he does not insist on an issue being raised and tried thereon.In the present case, the defendants appellants' point is that it is on the basis, of the Panchayati agreement as alleged and not on title that the suit was filed by the plaintiff for recovery of the depositwith defendants for five years.
These arguments however were successfully repelled, on behalf of the plaintiff respondents herein,submitting that although ordinarily, the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had opportunity to meet; but when the case, -- on which the Court decreed the suit, -- which the plaintiff couldhave made in the plaint, was not only admitted by the defendants in their written statement but expressly put forward as an answer to the claim which the plaintiff made in the suit, there is nothing improper in giving the plaintiffs a decree upon the case which the defendants themselves pleaded in the written statement; the plaintiffs' claim basedon the defendants' own plea cannot possibly be regarded with surprise by the defendants and no question of adducing evidence on such facts wouldarise when they were expressly admitted by thedefendants in their pleading; in such circumstances when no injustice could possibly result to the defendants, it will not be proper to drive the plaintiffs to a separate suit. In support of the plaintiffs' stand on this point, they relied on a decision of the Supreme Court in Firm Srinivas Ram Kumar v. Mahabir Prasad, AIR 1951 SC 177, where the principles, on which such relief on the pleadings isgranted, have been fully discussed and laid down by their Lordships.
In the present case, the defendants in theirwritten statement, while narrating the real facts, stated in paragraph 21 that the defendants are the hereditary Marfatdars of the plaintiff deity and that they are in exclusive possession of the suit land. It is quite clear from the defendants' written statement, read as a whole, that they claim to be trustees (Marfatdars) making collection and spending for the deity; thus, on the admission of the defendants themselves, they were acting as such trustees for five years from 1952 to 1956 and accordingly they are liable to hand over to the plaintiff No. 2, who ultimately was declared the trustee in the said Title Suit No. 1379 of 1953-54.Indeed there was no question of any surprise in the present case; if a Court sees that the plaintiff is entitled to the relief which he claims, although on ground other than those put forward in this claim -- the Court should grant that relief, if the defendants are not thereby taken by surprise; it is the duty of the Court to grant relief as the circumstances of the case would warrant. The primary duty of the Court after all is to do justice; rules of procedure are intended only to advance the cause of justice rather than to impede the same; all that the Court is to guard against is that no prejudice is done to and no surprise is sprung upon the other party.
In these circumstances, there is no substance in the defendant-appellants' point challenging the finding of the learned lower appellate Court infavour of the plaintiff on which a decree for Rs.1400/- as damages was granted.
9. On the question of limitation, the defendants' case is that this case is governed by Article 109 of the Limitation Act which provides that for a suit for recovery of profits of immoveable property belonging to the plaintiff which have been wrongfully received by the defendant, the period o limitation is three years from the time when the profits are received; accordingly the plaintiff is not entitled to anything beyond three years from the date when the usufruct was received by the defendants; that on this basis the plaintiff would only be entitled to usufruct for two years' profits collected by the defendants.
The point for consideration is whether the collections made by the defendants were 'wrongfully received' by the defendants within the meaning of Article 109. The plaintiffs' point is that the defendants' possession admittedly was not wrongful, because as hereinbefore discussed, the defendants themselves claimed to have acted as hereditary trustees making collection and spending for the plaintiff deity, and accordingly any collections made by them as such hereditary trustees could not have been 'wrongfully received' by the defendants. It is clear that the defendants acted throughout as trustees, and there can be no doubt of their having been trustees de son tort and thus it cannot be said that the defendants wrongfully put themselves forward as hereditary Marfatdars and received the profits wrongfully. I am of opinion that Article 120, -- the general article of limitation allowing six years from the date when the right to sue accrues, -- will apply in the present case.
It is well settled that if a person assumes the character of a trustee, and thus becomes a trustee de son tort, he may be called upon to account by the cestui que trust for the moneys he received under colour of the trust; such a person cannot be heard to say for his own benefit that he had no right to act as a trustee. In the present case in view of the categorical statement by the defendants in paragraph 21 of the written statement that they were hereditary Marfatdars of the plaintiff deity and had been in sole and exclusive possession of the suit lands, as such Marfatdars, there can be no doubt that their collections or receipts could not be wrongful within the meaning of Article 109.
The defendants' pleading in their written statement, alleging their right as Marfatdars, is by itself conclusive on the question of limitation that the collections made by them, were not 'wrongfully received' by the defendants.
I would, therefore hold that Article 120 of the Limitation Act applies on the facts of this case, and therefore no part of the plaintiff's claim, as decreed by the learned lower appellate Court, is barred by limitation.
10. The result, therefore, is that the decision of the learned lower appellate Court, decreeing the suit in favour of the plaintiff for Rs. 1400/- as damages, is upheld. This appeal is, accordingly, dismissed with costs.