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 share-holders or lnamdars are the Melvaramdars 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 first defendant for Faslis 1304 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 first 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, page 66). The observations of Sir Barnes Peacock in Davis v. Kayee Abdool Hamed 18 W.R. C.R. 55 ) 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 Choudry I.L.R. 10 Cal. 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-howladar 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 show 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 of Sakharam Mahadev Dange v. Hari Krishna Dange I.L.R. 6 Bom. 113 and Sangili v. Mookan I.L.R. 16 Mad. 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 Ruys v. Royal Exchange Assurance Corporation 1887 2 Q.B. 135 .
3. 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 first defendant.
4. It was next urged for the plaintiff that the dispossession of the first defendant was on a claim 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 Womesh Chunder Gooptao v. Raj Narain Roy 10 W.R. C.R. 15 But as the plaint was framed upon a 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 favour of the plaintiff without taking further evidence as to whether Exhibit 0, 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. The appeal, therefore, fails and is disallowed with costs.