1. This Letters Patent appeal is brought by the plaintiffs from a decision of my learned brother Jack, J., who allowed the second appeal and dismissed the plaintiff's suit. The suit had been decreed in the trial Court and, on first appeal before the learned Subordinate Judge, the appeal had bean dismissed. The form of the suit was, first of all, to put the matter logically for a declaration of the plaintiffs' right as tenants to certain land. They were tenants under maliks who may be called as the five anna maliks. The defendants were tenants of adjacent lands under the tan anna maliks and the plaintiffs sued, first of all, for a declaration of their title as tenants, secondly, for confirmation of their possession upon the allegation that the defendants had been disturbing their possession or threatening so to do, and thirdly, for an injunction to restrain the defendants from trespassing upon the land of the plaintiffs' tenancy or otherwise interfering with that.
2. Now, the plaintiffs have proved to the satisfaction of the trial Court and the Subordinate Judge that they have for many years held this tenancy and for many years have, in fact, been in occupation of the land which they now claim; but it appears that recently, that is to say, in the year 1922 the landlords of the plaintiffs and the landlords of the defendants were parties to a boundary dispute which was dealt with under the Bengal Survey Act. The objection to the plaintiffs' suit which succeeded before my learned brother was this that, in view of the fact that there had been this boundary decision under Section 41, Survey Act, Section 62 of the same Act, prevented any suit from being brought to set aside an order deciding a boundary dispute unless an appeal had first bean preferred under Section 59 or Section 60. The learned Judge has taken the view that no appeal was in this case preferred under Section 59 or Section 60, that the present suit is a suit to set aside an order made deciding a boundary dispute and that therefore the plaintiffs' suit must fail.
3. Now, the first thing to be observed is that if the defendants were going to show that the plaintiffs' suit was not maintainable by reason of this boundary decision under the Survey Act, it was the business and duty of the defendants to prove what that proceeding under the Survey Act was and who were the parties. The trial Court in this case definitely states that the plaintiffs in the suit with which we are concerned were not parties to that boundary dispute. It says that it was a dispute between the rival maliks and we have absolutely. nothing before us upon the basis of which it can be suggested that that statement of the Munsif is wrong. We have seen the judgment; but if the proceeding had been produced, the matter would no doubt have been absolutely clear. The defendants have not given any evidence to show that these plaintiffs were parties to that boundary proceedings under S.41, Survey Act. That being so, the next question is because their landlords through whom they now make title were parties, does that involve the consequence that Section 62 bars their suit I am quite plainly of opinion that if they were not parties to the boundary dispute Section 62 cannot apply to them merely because they are making title through landlords who were parties. The plaintiffs derived title from the five anna maliks many years long before the boundary dispute and in order that the plaintiffs may be estopped from asserting their right it must be shown that they come within the prohibition of the section. It is quite true that if the plaintiffs' landlords were suing the defendants' landlord they would have to bring their suit upon the footing that since 1922 the defendants' landlords had been in possession according to the boundary then laid down. If they brought their suit upon that footing and if they brought it within time they could recover possession on the basis of their title, But the present plaintiffs not being parties to that proceeding at all are not in the same position. I may point out that even if the present plaintiffs were in that position the only difference it makes in She present case is a difference in terminology.
4. The plaintiffs have pleaded that they have all these years been in possession of the land in suit. Assuming for the sake of argument, that by virtue of the order of 1922 in spite of that fact the legal position was that they were out of possession beyond the boundary laid down in 1922, that is to say, although they were physically in possession beyond the boundary the statute prevents them from saying so and the decision in the boundary dispute is conclusive upon the question of possession. In such a ease as that it seems to me to be idle to suppose that there is any doctrine of law which would prevent the Court from exercising the discretion that it has to give leave to amend in order that the real question in the case may be raised. In such a case as that I, speaking for myself, should have very little difficulty. I should not think of turning away a plaintiff with a good cause of action merely because although he has stated his facts quite accurately he has asked for confirmation of possession instead of asking for recovery of possession. I should be the last person to suggest that people should be allowed to change the real nature of cases they put before the Court.. I dare say that in nine cases out of ten the question of possession is very important and Judges are quite right not to allow an amendment the reason being that the character of the case will be changed. That is not really the position here.
5. In my judgment, this Letters Patent appeal must be allowed and the decision of the learned Subordinate Judge must be restored with costs both of the second appeal and before us.
6. I agree.