1. The property in dispute in this case consists of 12 pangus or shares in an inam village. The lands appertaining to the shares are in the occupancy of raiyats who own the kudivaram right. The shareholders or inamdars are the melwaramdars, and, as such, are entitled to take their share of the crops and enjoy the other incidents appertaining to the tenure. Admittedly, the plaintiff's vendor had before the sale to the plaintiff granted a lease of the shares in dispute to the late 1st defendant for Faslies 1804 and 1305. The present suit was instituted before the expiration of the term of the said lease and while it remained in force. The plaintiff claimed a decree for possession of the shares against the contesting defendants, who, it was alleged, had ousted the 1st defendant, the lessee. On behalf of the defendants, it was objected that the plaintiff's suit as framed was unsustainable, the lease being treated in the plaint itself as subsisting and valid. The Subordinate -Judge overruled the objection. But we cannot agree with him as he has overlooked the elementary rule that a plaintiff who seeks possession must show that at the date of the suit, he was entitled to such relief (Cole on Ejectment, p. 66). The observations of Sir Barnes Peacock in Davis v. Kazee Abdool flamed, 8 W.R. p. 58 are a direct authority that in this country also a landlord in the position of the plaintiff could not sue to eject even a trespasser so long as the lease is outstanding. The case of Bissesuri Dabeea v. Baroda Kanta Roy Chowdry, I.L.R. 10 C. 1076 cited by the Subordinate Judge does not lay down a rule to the contrary, and. if it did, the decision could not be held to be sound. As we understand that case, the Court there only held that as the plaintiff had been deprived of the joint possession he had held with his nim-howladars, he was entitled to be restored to such, possession. Clause n. of Section 108 of the Transfer of. Property Act on which also the Subordinate Judge relies, no doubt imposes an obligation on the lessor to put the lessee in possession. But that provision certainly cannot be construed as affecting the rule of procedure that a plaintiff suing for possession must shew that at the date of the suit he was entitled to that relief.
2. On behalf of the plaintiff, it was urged here that, even if at the date of the suit, the plaintiff's claim for possession was unsustainable, still as the term of the lease expired during the pendency of the litigation, the plaintiff might now be given a decree for possession, should his case be shown to be well founded on the merits. The cases Sakharam Mahadew Dange v. Harikishna Dange I.L.R. 6 B. 113 and Sangili v. Mookan I.L.R. 16 M. 350 on which the learned pleader for the plaintiff laid stress in support of the above contention do not warrant the course suggested by him being adopted in cases like-the present. If, in suits for partition under the Hindu Law, events occurring after the commencement of the action are to be considered in determining the rights of the parties, such cases must be treated as an exception to the general rule that the rights of parties must be ascertained as at the date of the action brought (Compare the observations of Collins, J., in Reys v. London Assurance Corporation, 1897 2 Q.B.D. 142 ). It seems to be clear, therefore, that the plaintiff's suit for possession was not maintainable in consequence of the existence then of the outstanding term under the lease to the late 1st defendant.
3. It was next urged for the plaintiff that the dispossession of the 1st defendant was on a laim of title which was inconsistent with the plaintiff's right to the reversion and such relief as would protect that right might and ought to be given in this suit. The relief appropriate in such circumstances would be a declaration (Per Peacock, C. J., in 10 W. R. 19 C. R.)
4. But, as the plaint was framed upon an erroneous view of the plaintiff's rights, no declaration was prayed for with reference to the view of the matter just stated. And the case is not one in which the plaintiff should be allowed to amend at this stage of the litigation, especially because, even after such an amendment the case cannot be decided in favor of the plaintiff without taking further evidence as to whether Exhibit C, which is the very first link in the chain of the plaintiff's title was executed by the parties who are alleged to have executed it, but which evidence the plaintiff had failed to call without, so far as appears, any proper reasons for such omission.
5. In these circumstances, there is no alternative left but to dismiss the suit on the preliminary ground stated above.
6. The appeal, therefore, fails and is disallowed with costs.