J.P. Jain, J.
1. The legal representatives of Shri Kishan original plaintiff have filed this appeal against the appellate decree dated August 20, 1974 of the Additional District Judge, Udaipur, affirming the judgment and decree of the Civil Judge, Udaipur, dated 12-4-67 passed in Civil Suit No. 80/1964.
2. There is some property known as 'Talia' in Mouza Fatehnagar Tehsil Mavli. This property has been shown in the map Ex. 2 attached to the plaint. Shri Kishan plaintiff alleged that the property shown in pink colour towards the south of the 'Talia' had been constructed by him and a portion of the 'Talia' towards the north shown bounded by dotted red lines is lying vacant. But according to him the foundation in that part of the land has been dug and filled up to the plinth level. The land thus shown within red dotted lines, is the land in question. It measures approximately East-West 52' and 30' North-South. The plaintiff stated that he is the owner of the entire land and has been in possession since Samvat year 2003. It has been alleged that on 15-7-74 the defendants have trespassed on the suit land by force in the supposed claim that the suit land was allotted to them by Allotment Committee, Fatehnagar. The plaintiff further alleged that this was an encroachment on the part of the defendants. The Allotment Committee Fatehnagar had no right to allot the said land to them and no compensation was ever paid to the plaintiff of the said land. He accordingly prayed for the removal of the encroachment and for possession of the suit land. This suit was instituted on 21-7-1964.
3. The defendants, namely, Mannalal, Lalchand, and Sunderlal sons of Nathu Lal, Kanhaiyalal son of Hamirmalji and Fatehlal sons of Lal Chand, by a joint written statement dated 20-9-1964, resisted the suit. They denied the ownership of the plaintiff of the suit land. It was also pleaded that some of the land was acquired and in exchange of the same the Land Acquisition Officer, Udaipur, gave plot No. 10-A to Poonam Chand, Nathulal and Kanhaiya Lal, who were real brothers. Poonam Chand and Nathulal having died, one-third share of the plot No. 10-A belonged to the sons of Poonam Chand, the other one-third has gone to the sons of Nathulal, who are defendants Nos. 1. 2 and 3 and the remaining one-third of the land is that of defendant No. 4 Kanhaiya Lal. By way of compensation, it was alleged, a sum of Rupees 1,500 was paid by these allottees. In pursuance of this allotment the defendants are said to be in possession of the land in question. They prayed for the dismissal of the suit.
4. The Civil Judge, Udaipur, tried the case on the various issues arising from the pleadings of the parties. The trial Judge held that the plaintiff failed to prove that the suit land was owned by him and he has been in possession of the same since Samvat year 2003. He also came to the conclusion that there is no cogent evidence to establish the suit land was acquired by the Government and was allotted to the defendants. He decided this issue against the defendants. In view of his findings on issues Nos. 1 and 2 he dismissed the plaintiff's suit with costs by his judgment dated 12-4-1967. Being dissatisfied with his decree the plaintiff preferred an appeal and the learned Additional District Judge, Udaipur, held, in agreement with the trial court, that there is no evidence to establish the ownership of the plaintiff and there has been no dispossession of the plaintiff at the instance of the defendants. The appeal Judge, however, reversed the finding on issue No. 5 and on consideration of various documents concluded that the disputed plot was duly acquired by the State Government and it was subsequently allotted to the defendants. Eventually the appeal was dismissed by his judgment dated 20th August, 1974. Dissatisfied by this judgment and decree the legal representatives of plaintiff have come in second appeal.
5. Learned counsel for the appellants at the outset argued that the plaintiff Shri Kishan purchased the suit land and the land towards its south by patta Ex. 1. According to the case of the plaintiff the entire 'Talia' was purchased by him from Maharaj Sahab Shri Gordhan Singh of Sanwar. This patta is dated Phagun Bud 8 Samvat year 2003. In the courts below the plaintiff's plea was that southern part of the 'Talia' was the subject-matter of sale of the Patta whereas the suit land came in his possession of the writing at the foot of the Patta described within letters 'E-F'. The two courts below held that the plaintiff was not able to prove the writing within the letter 'E-F' and that apart, it did not purport to convey for any consideration the suit land to the plaintiff and thus it was held that the patta Ex. 1 does not go to establish that the suit land was purchased by the plaintiff from Shri Gordhan Singhji of Sanwar. I have perused this document. The land sold to the plaintiff measured 712 1/2 gaj. Towards the north of this land the field of Vaidya Soorajmalji son of Gangadharji Brahmin Chorwadi has been shown. If the entire 'Talia' including the suit land had been sold, then towards the north of this land the field of Soorajmalji would have been shown in Ex.2. On the north of this land the land of Onkarmal Mahajan has been shown. Mr. Mehta learned counsel for the appellants could not point out as to where the land of Soorajmal Vaidya existed in Ex. 2., By reading Ex. 1 and Ex. 2 together it is difficult to sustain the plea of the plaintiff that the suit land was the subject-matter of sale or was at any time after the patta was issued (Ex. 1) sold to the plaintiff by the Thikana Sanwar. The finding of the learned courts below also appears to be correct that the writing between the letters 'E-F' does not disclose that the suit land was transferred to Shri Kishan by the Thikana Sanwar. It is not only vague tout the writing does not reveal that the alleged subsequent transfer was for any consideration. That apart, plaintiff's claim in this regard has not been supported by the statement of Kr. Raghubir Singh son of Jagirdar of San-war. I am, therefore, clear in my mind that part of the 'Talia' shown within red dotted lines in Ex. 2 is not of the ownership of the plaintiff.
6. Next it has been argued that the finding of the learned lower appellate Court on issue No. 5 is contrary to law. Issue No. 5 reads as follows:
'Whether the plot was duly acquired by the Rajasthan Government and it was given to the defendants under a legal title?'
Ex. A/6 has been relied upon by the defendants to prove the acquisition of the plot in question. This document is a copy of the Gazette Notification published in Rajasthan Rajpatra February 3, 1961. It refers to earlier notification under the Raiasthan Land Acquisition Act, 1953. under Section 4, This notification purports to be under Section 6 of the Act. This notification no doubt is the conclusive evidence of the fact that the land mentioned in the notification was acquired by the Government. The Khasra numbers specified in the notification are 3778/1, 3884, 3813, 3778 and 3804. The total area acquired is 17 Bighas 3 Biswas. There is not an iota of evidence to show that the suit land forms part of any of these Khasra numbers.
7. Ex. A/4 is an order from the Land Acquisition Officer of 21st October, 1961. According to this order some land of Poonam Chand Bhanwarlal Bagrecha was acquired. In exchange of that land plot No. 10-A was given to them on payment of Rs. 1,500. There is no material on record to show as to where plot No. 10-A is situate and what are its dimensions. That apart, this order does not indicate that the plot No. 10-A was given to Bhanwar Lal son of Poonam Chand on behalf of the family to which the defendants belong, to prove that the five defendants had any interest in the land allotted to Bhanwar Lal son of Poonam Chand by the order Ex A/4. Another document to which reference was made by the learned lower appellate Court is Ex. A/5. It is a receipt showing the deposit of Rs. 1,500 with regard to plot No. 10-A. This receipt is dated 10-5-64. This does not carry the case of the defendants any further. Ex. A/7 is only an entry of the Rokar of the Tehsil Mavli to show that Rs. 1,500 were deposited by Kanhaiya Lal Bhanwar Lal Bagrecha. Another document on which reliance has been placed is Ex. A/8. It is to show that a sum of Rs. 5,349 was received by Sushila Devi Sharma on 24-6-57. According to the defendants the compensation was paid to her for the land that belonged to Soorajmal and which was acquired by the Government. Ex. A-6 is the gazette notification of February, 1961. On the basis of these the defendants urged that the land was acquired from Sooraj Mal by the State Government. It does not appeal to reason that the compensation amount was paid on 24-6-1957. These documents were referred to by the learned lower appellate Court to hold that the suit land was acquired by the State Government, according to law and it was allotted subsequently to the defendants. From the material available on record and as discussed above I am unable to accept the finding of the learned lower appellate Court that the suit land was duly acquired from Soorajmal and it was allotted to the defendants by the Land Acquisition Officer. As noticed earlier Ex. A/4 does not at all indicate that the land was allotted to the defendants.
8. Ex. A/10 has been availed of to show that the possession on the plot No 10-A was delivered by Chhogalal a concerned clerk with the help of the police Mavli to Bhanwar Lal Kanhaiya Lal Bagrecha. I have already noticed above that no evidence has been brought on record as to the exact situation and dimensions of plot No. 10-A. Thus from Ex. A/10 it cannot be concluded that the suit land was delivered to the defendants or to someone on their behalf. Exs. A/1 and A/9 which are said to be the plaintiff's own documents have been relied upon. These documents hardly lend any assistance to the case of the defendants. That apart, Shri Kishan had come in the witness-box and no question was directed during cross-examination regarding Ex. A/9. Learned lower appellate Court does not appear to have read the documents properly. The finding arrived at by him with regard to issue No. 5 is clearly erroneous and cannot be sustained. The trial Court did not disclose the evidence relating to issue No. 5 but it came to the conclusion that the defendants had failed to prove the acquisition of the suit land and its allotment.
9. This brings me to another contention raised on behalf of the appellants. Mr. Mehta, argued that the plaintiff Shri Kishan has been able to prove his possession on the suit land since Samvat year 2003 and on that basis alone he is entitled to decree for possession, even when he has failed to prove his title. On the other hand, Mr. Bhandari has opposed this argument and submitted that the plaintiff, as it appears from the plaint, founded his case on the basis of title. If he has failed to prove his title, it is not open to him to seek relief only on the ground that he has succeeded to prove his possession prior to the suit. That apart, it has been urged that the plaintiff has failed to prove his anterior possession as well. I have been taken through the evidence.
10. Para No. 3 of the plaint clearly points out that the plaintiff has claimed to be in possession of the 'Talia' as the owner of the said land. He brought on record the patta Ex. 1 which is dated Samvat year 2003. It is, therefore, clear that the plaintiff based his claim on title and consequential possession. He then alleged dispossession by the defendants on 15-7-1964. Like two courts below I have held above that the plaintiff has failed to prove his title. The question that now arises for consideration is whether can the plaintiff be permitted to plead an alternative case that he has been in possession of the said land since Samvat year 2003 and if he has proved the same can he be reinstated on the suit land by awarding him a decree for possession. The learned counsel for the appellants placed reliance on P.V. Karuppanan Ambalam v. Pandari Sundara Raja Ayyar, AIR 1940 Mad 71 In that case the plaintiff's suit was based on title but he was granted relief on the strength of his mere anterior possession even when such possession was not specifically made the ground of relief in the plaint. After having read this decision I find that the facts of this case are wholly distinguishable from the facts of the present case. The learned Judge dealing with the Madras case observed as follows :
'In some of these cases the suits were no doubt dismissed on the ground that the title set up by the plaintiff was not established and that no decree could be granted on the strength of mere possession as no possessory title had been put forward in the plaint. But I do not regard these decisions as laying down an inflexible rule that under no circumstances can a decree be passed on the strength of plaintiffs possession unless such possession is specifically made the ground of relief in the plaint. I regard them merely as illustrations of the salutary principle that parties should ordinarily be confined to the case raised by them in their pleadings and that no relief should be awarded on the basis of a new case not disclosed in the pleadings. The underlying principle is of course, that no party should be taken by surprise but should have a fair and adequate opportunity to meet the case of his opponent. Judged by this principle, it cannot be said in this case that the appellant was prejudiced to any extent by any new case being sprung upon him without any previous indication thereof in the plaint. In paras 7 and 8 of the plaint, after referring to the release deed by the trustees of the Mutt and delivery of possession by them, the respondent definitely and clearly alleged: 'From that time till this day the plaintiff himself is enjoying the suit land and is paying the kist, etc. due thereon. The patta also has been registered in his name. Nobody else had, at any time, any right to, or enjoyment of, the said land,' and the appellant in para 8 of his written statement traversed those allegations and issue 5 and the additional issue, relating to the respondent's acquisition of title by adverse possession and his having been in possession within 12 years before the suit also clearly raised the question of the respondent's possession of the suit property.'
In the Madras case there was a clear averment regarding possession in the plaint and the parties adduced evidence on that point. In the present case according to the plaintiffs own showing his possession flowed from his title. The parties went on trial with regard to the question of title and consequential possession. The question of possession independent of title was not in controversy and parties have not led any evidence. If the plaintiff is now allowed to take up the alternative plea that he is entitled to a decree of possession if he has proved his anterior possession, it is clear that the defendants will be prejudiced. The observations of the learned Judge deciding the Madras case were in the peculiar facts and circumstances of that case. I am, therefore, of the opinion that this case does not lend any assistance to the contention raised on behalf of the appellants.
11. Another case on which reliance was placed by Mr. Mehta is Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165. This was a case under Section 9 of the Specific Relief Act (old). It is no doubt true that the observations of the learned Judges of the Supreme Court in paras 13 and 14 had laid down the proposition that Section 8 of the Specific Relief Act does not limit the kinds of suit and a suit on the basis of title as well on the basis of anterior possession can be filed under that section. Their Lordships approved the decision of the Mustapha Saheb v. Santha Pillai, ILR (1900) 23 Mad 179 where it was observed:
'That a party ousted by a person who has no better right is, with reference to the person so ousting, entitled to recover by virtue of the possession he had laid before the ouster even though that possession was without any title'.
Their Lordships again referred to the present amended Articles 64 and 65 of the Limitation Act, 1963. It was observed that Art. 64 enables a suit within 12 years from dispossession for possession of immoveable property based on possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Art. 65 is for possession of immovable property or any interest therein based on title. The amendment is not remedial but declaratory of the law. Thus it was held in that case that a suit for possession does lie under Section 8 of the Specific Relief Act (now Section 5) on the basis of prior possession. The plaintiff can be granted a decree for possession even if he has not been able to prove his title. So far the proposition of law is concerned it has been resolved by their Lordships of the Supreme Court in Nair Service Society Ltd.'s case AIR 1968 SC 1165. But the question that needs to be answered in the present case is whether the plaintiff can be permitted to claim a decree for possession without proving his title. I have held above that the plaintiff has based his case only on title and he has attributed his possession only on that title. The parties had not gone on trial on question of plaintiff's anterior possession independent of his title. I am, therefore, clear in my mind that the plaintiff cannot be permitted to argue that if he has been able to prove his prior possession he may be granted a decree for possession.
12. That apart, I have gone through the evidence led by the parties at the trial relating to possession. On behalf of the plaintiff P.W. 1 Shri Kishan and P.W. 4 Ghasilal have been examined. Shri Kishan clearly stated that he has purchased the 'Talia' from Gordhan Singh Jegirdar of Sanwar by Patta Ex. 1 and since then he is in possession of the same. To the same effect is the evidence of the other witness. Thus according to the plaintiff's own case possession flowed from his supposed title which he acquired by Ex. 1. He cannot foe said to be in possession of the suit land in respect of that title. The plaintiff in para 1 of the plaint alleged that the foundations have been dug and filled up upto the plinth level in the suit land. This has not been proved at all. The suit land is otherwise a vacant piece of land. Mere allegation without proof of acts of actual possession, do not establish his anterior possession. In this regard, the evidence is completely lacking. In this view of the matter I am unable to accept that the plaintiff was in possession of the suit land prior to the institution of the suit. This point was not argued in the manner urged before me before the courts below and as such they have not recorded any clear finding as regards plaintiff's possession prior to the institution of the suit. Thus the plaintiff is not entitled to any decree for possession.
13. No other point has been argued.
14. In the result the appeal fails and it is hereby dismissed with costs. It is, however, made clear that the defendants in view of my findings on issue No. 5. cannot claim any right or interest on the suit land, and their possession on the same, if any, will not be termed as lawful.