1. This is a suit by the Secretary of State to recover from the defendants Nos. 1 to 4 certain lands which were the jenm of Government and which were granted to the predecessors of the 5th defendant by a cowle in 1853, and which, according to para. 3 of the plaint, at the date of filing the plaint were held under this cowle. The plaint goes on to allege that the 5th defendant was the tenant in possession and that he had been dispossessed by defendants Nos. 1 to 4 under a decree, that the plaintiff resisted delivery which, was nevertheless ordered (under Section 330, C.P.C.) in consequence of which the suit was filed. In para. 4 of their written statement defendants Nos. 1 and 2 say that 'the plaintiff who admits that he had no actual possession of the plaint property had no light to resist execution,' and that the cause of action shown in the plaint is not a lawful one. In para. 5 they also plead that the lands according to the plaint being held under the cowle and the jenm bogam and revenue not being in arrear the plaintiff had no present cause of action, and in para. 12 they further plead that the plaintiff was only entitled to recover quit rent and not sue for the lands or the profits thereof and that the suit was not maintainable. Among the issues were the following:
1. Whether the plaintiff has any cause of action for the suit.
2. Whether the property belongs to the plaintiff as alleged in the plaint and the plaintiff is entitled to recover possession of it together with mesne profits.
2. The District Munsif found on the 1st issue that the plaintiff clearly had a cause of action as the 1st and 2nd defendants had in spite of his opposition been put in possession of the lands which according to the plaintiff were held under him. This finding, it is now contended, was bad in law. On the 2nd issue, the District Munsif simply found that the plaint lands were not the jenm of the defendants but of the plaintiff and that the plaintiff was entitled to recover possession of them. The later part of this finding is now alleged to be bad in law. In the grounds of appeal before the lower appellate Court, defendants Nos. 1 to 4 contended that in any view of the case, the plaintiff has no right to bring a suit to recover the plaint property. This contention appears to have been urged at the hearing, but the District Judge merely says: 'The land being the jenm of Government it is not explained why Government should not sue to eject persons who have no right to remain on it'. In second appeal it is contended that the suit is not maintainable as the plaintiff, as a landlord, is not entitled to maintain a suit for possession where there is an outstanding term in a lessee and here the plaintiff states that at the date of the plaint which is the time we have to look at, the lands were held under the cowle--the person entitled to hold under the cowle being the 5th defendant. It was also contended that by the cowle the Government had parted with all right to possession just as if it had granted waste land on dharkast. We think both these contentions were covered by the pleadings, issues and grounds of appeal: though the latter are not expressed as clearly as they might be; and although the main fight was about the jenm right we do not think the 5th defendant (sic) would be precluded from raising them now if they had been abandoned by his Vakil in the lower Courts, which was not the case. Krishnasami Ayyangar v. Rajagopala Ayyangar 18 M. 73. The latter contention could not be decided without a finding of fact. As regards the first contention, however, we think it sufficiently appears on the face of the plaint that there was an outstanding term at the date of suit as the lands are stated in the plaint to be held under the cowle and that the plaint does not comply with what is called the elementary rule in Ramanathan Chetty v. Pulikutti Servai 21 M. 288 that a plaintiff who seeks possession must show that at the date of suit he was entitled to such relief. Under these circumstances the plaintiff is not entitled to recover possession in this suit, and we think the appeal should be allowed and the suit dismissed with costs throughout.