1. This appeal is by the defendants. The plaintiff sued defendant 1 in ejectment. Defendant 1 is the father of defendant 2. The suit being really against defendant 1, I shall refer to him hereafter as the defendant. The plaintiff's case briefly is that the defendant was his tenant. He sued the defendant for rent in the year 1926 in Bent Suit No. 458 of 1926. In that suit the defendant denied that the relation, ship of landlord and tenant existed between him and the plaintiff and the suit was dismissed on 31st August 1927. The plaintiff contended that the defendant forfeited his tenancy right by his repudiation of the tenancy and on that footing the plaintiff sued for the ejectment of the defendant.
2. The defendant's case was that he held the land in his own right and that he was never the tenant of the plaintiff. He claimed alternatively that he acquired title by adverse possession for a period of over 40 years. The trial Court has found that the defendant has been in possession of the land in suit for over 43 years adversely to the plaintiff and that therefore the plaintiff's claim against the defendant is not sustainable. He found that no rent was ever paid by the defendant for this land to the plaintiff and that there was never any relationship of landlord and tenant between the parties. Against this decision an appeal was taken and it was heard by Mr. Srish Chandra De, Subordinate Judge, 2nd Court of Bakarganj. The learned Judge has passed a judgment which is a jumble of confused findings of fact and wrong views of the law. It is a most unsatisfactory judgment. Beading the judgment as a whole it seems that the learned Subordinate Judge has accepted the findings of the learned Munsif that the defendant has been in possession of the land for a period well over 12 years. But the learned Subordinate Judge considers that the defendant became a tenant of the plaintiff by reason of the fact that the plaintiff instituted a suit for rent against the defendant in the year 1922. He seems to think that as soon as the plaintiff instituted a suit for rent against the defendant the relationship of landlord and tenant was at once created and that whether the defendant had acquired title by adverse possession or not prior to the suit the defendant became a tenant and the plaintiff was entitled thereafter to treat the defendant as a tenant and the tenant was bound to accept the plaintiff as his landlord. A more absurd proposition of law it is difficult to conceive. But this is the view of the learned Subordinate Judge as propounded in his judgment. After stating this view the learned Subordinate Judge decides that the long possession of the defendant cannot be of any effect inasmuch as the defendant was a tenant of the plaintiff. When the case was before the learned Subordinate Judge the plaintiff filed a petition stating that he gave up his claim to ejectment and wished to have an equitable rent assessed, in accordance with the provisions of Section 157, Bengal Tenancy Act. The learned Subordinate Judge accordingly stated that the prayer for ejectment was rejected and made a declaration that the plaintiff was entitled to get fair and equitable rent of the land in suit from the defendant. He did not however fix a fair and equitable rent on the ground that there were no materials before him upon which the assessment of rent could be made. He merely stated that fair and equitable rent had to be assessed in a properly framed suit for the purpose. Against this decision the defendants have appealed and the plaintiff has filed a cross-objection.
3. The argument of the learned advocate for the appellants is that Subordinate Judge has gone entirely wrong in holding that the suit for rent had the effect of creating the relationship of landlord and tenant between the plaintiff and the defendant and he contends that the judgment of the trial Court should be restored. He points out further that the learned Subordinate Judge should not have granted the prayer for the assessment of a fair and equitable rent inasmuch as this prayer was not to be found anywhere in the plaint and inasmuch as this question was not raised in the trial Court. There can be no doubt that the learned Subordinate Judge has gone entirely wrong in his view regarding the law applicable to this case. If the defendant was in adverse possession for about 40 or 43 years obviously his adverse possession has matured into title. If the defendant acquired title by adverse possession that title could not be defeated by a subsequent suit for rent. I might mention that this rent suit was dismissed for default and that it was followed by another rent suit in 1926 which was dismissed on contest. I need hardly repeat that a suit for rent by itself cannot create the relationship of landlord and tenant. The entire judgment of the learned Subordinate Judge is vitiated by this absurd view of the law which he has taken. The question is whether the appeal should be remanded or whether the decision of the trial Court should be restored. In my opinion, no useful purpose will be served by an order of remand. There is the clear finding by the trial Court that since the year 1890 the defendant has been in possession of the land adversely to the plaintiff. That finding has not been reversed, and there are no materials which would justify a reversal of that finding.
4. On the other hand, the materials clearly show that at no time did the defendant acknowledge the plaintiff as his landlord. The plaintiff endeavoured to show that after the publication of the Record of Rights the defendant acknowledged the plaintiff as his landlord and that the plaintiff realized rent from him for two years. There is no documentary evidence to establish this realization of rent. This is the-finding of both the Courts. I might mention here that the land in suit has been the-subject-matter of litigation from the year 1890. In that year the predecessor-in-interest of the plaintiff brought a suit against the defendant and others for a declaration of his title, and for recovery of possession with respect to the land in suit together with other land. That suit was dismissed for default. In 1899 another suit was brought by the plaintiff for a declaration of his title to and for possession of the land in suit. This suit was also dismissed on the ground that it was not maintainable-in view of the fact that the suit of 1890 had been dismissed for default. After that the plaintiff does not seem to have done anything and there is no evidence that the plaintiff was ever in possession of the land whether in khas or by realizing rent from the defendant. Then came the rent suit of 1922 which was dismissed for default and which was followed by the rent suit of 1926 which was dismissed on contest. In the latter suit there was a finding that the relationship of landlord and tenant did not exist between the plaintiff and the defendant. The plaintiff has thus failed to show that he was ever in possession of this land within a period of 12 years of this suit. This is a suit for ejectment and until the plaintiff proves that he was in possession within 12 years of the suit his suit must fail. On this ground and also on the ground that the defendant has acquired title by adverse possession, I am of opinion that the plaintiff's suit must be dismissed. Having arrived at this decision the question raised by the cross-objection need not be dealt with in detail. If the plaintiff's claim for ejectment fails obviously his claim for assessment of rent must also fail. I would add however that in any event I would have held that the plaintiff is not entitled to get an assessment of rent under Section 157, Ben. Ten. Act. That Section runs as follows:
When a plaintiff institutes a suit for the ejectment of a trespasser he may, if he thinks fit, claim-as alternative relief that the defendant be declared liable to pay for the land in his possession a fair and equitable rent to be determined by the Court,, and the Court may grant such relief accordingly.
5. There was no prayer whatsoever made in the plaint for an assessment of a fair and equitable rent. In the trial Court no such prayer was made at any stage. It was only when the appeal was being heard that a petition was filed claiming this relief. In my opinion this was too late a stage at which this relief could be claimed. The granting of this prayer would necessitate an amendment of the plaint, and the taking of fresh evidence. The amendment of the plaint would really amount to a changing of the nature of the suit and such an amendment should not be allowed at such a late stage. For these reasons I would have held that no rent could be assessed. In view of the fact that I have held that the plaintiff has failed to establish his claim for ejectment the appeal must be allowed and the cross-objection must be dismissed with costs.