T.C. Raghavan, J.
1. Defendants 2 to 4 and the legal representatives of the first defendant are the appellants and the plaintiffs the contesting respondents. The suit was for eviction on the plea of an oral lease, while the appellants pleaded another lease from a mortgagee of the landlord. The trial court decreed the suit with some reservation regarding the question of fixity of tenure under Act 8 of 1950; and on appeal and cross-appeal the lower appellate court confirmed the same. Before the lower appellate court the plaintiffs submitted that they would withdraw their case of oral lease and would accept the case put forward by the appellants. I may state that before this Act 4 of 1961 came into force, under which a lessee under a mortgagee was not entitled to fixity of tenure beyond the life of the mortgage.
Consequently, the position was that if the case of oral lease set up by the plaintiffs was accepted, the appellants would have been entitled to fixity of tenure; but, if the case of the latter that they were lessees under the mortgagee was accepted, they would not have been entitled to fixity of tenure. In other words, the case of either party turned out to be against him. Taking advantage of this position the plaintiffs accepted the case put forward by the appellants: and it was on that basis that the lower appellate court confirmed the decision of the trial court dropping the reservation.
2. The counsel of the appellants brings to my notice the decision of the Supreme Court in Firm Sriniwas Ram Kumar v. Mahabir Prasad. AIR 1951 SC 177, wherein the Supreme Court has said that 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 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 made The Supreme Court has observed further that in such a case when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to separate suit
The counsel argues on the basis of this observation of the Supreme Court that in the present case when the plaintiffs accepted the case of the appellants before the lower appellate court Ad 4 of 1961 was already in force which excluded from fixity of tenure leases created by mortgagees, so that the acceptance of the appellants' case by the lower appellate court resulted in prejudice to them. The counsel contends that in such circumstances, the lower appellate court was in error in passing a decree in favour of one party on the case admitted by the other party. In other words, the argument is that the lower appellate court should have disposed of the case on merits, on the true case. I may reiterate that the case each party put forward turned out to be against his interest by virtue of the statute that intervened.
3. There is force in this contention; and I feel that the lower appellate court should not have decided the case on the basis of the acceptance by one side of the case of the other side.
4. The second appeal is therefore allowed; the decision of the lower appellate court is set aside; and the appeal and cross-appeal are remitted back to the lower appellate court for fresh disposal. Both parties will bear their respective costs before me.
5. It is submitted by Mr. C. K. Sivashankara Panicker, the counsel of the contesting respondents, that the respondentshave already taken possession of the property and that the same might not be disturbed pending decision of the appeal bythe lower appellate court. I feel that thisrequest may be allowed in the peculiar circumstances of this case; and I direct accordingly.