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Ram Churn Karmokar Vs. Mukhoda Soondury Dasi - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal871
AppellantRam Churn Karmokar
RespondentMukhoda Soondury Dasi
Cases ReferredEshen Chunder Singh v. Shama Churn Bhutto
Excerpt:
appellate court, duty of - changing nature of suit--case made in plaint--withdrawal of suit--execution of decree--sale under subsequent attachment--civil procedure code (act viii of section 1859), section 97; and (act x of 1877) section 373. - .....for rs. 1,210; and, in execution of that decree, attached the property which is the subject of the present action. the plaintiff intervened under section 246 of act viii of 1859, alleging that the house was his sole and exclusive property. this application was rejected. subsequently, the plaintiff instituted a regular suit against prem bibi and another, to establish his exclusive title to the property; and, after the suit had been pending for some time, he withdrew it without obtaining permission of the court to bring a second action for the same matter. after the suit had been withdrawn, the attachment fell through, but the property was re-attached and sold in execution of the same decree, and was purchased by the defendant on the 2nd july 1877. the plaintiff did not appear to contest.....
Judgment:

Prinsep, J.

1. The circumstances out of which this suit has arisen are as follows: In 1874, one Prem Bibi obtained a money-decree against one Muddun Karmokar for Rs. 1,210; and, in execution of that decree, attached the property which is the subject of the present action. The plaintiff intervened under Section 246 of Act VIII of 1859, alleging that the house was his sole and exclusive property. This application was rejected. Subsequently, the plaintiff instituted a regular suit against Prem Bibi and another, to establish his exclusive title to the property; and, after the suit had been pending for some time, he withdrew it without obtaining permission of the Court to bring a second action for the same matter. After the suit had been withdrawn, the attachment fell through, but the property was re-attached and sold in execution of the same decree, and was purchased by the defendant on the 2nd July 1877. The plaintiff did not appear to contest the second execution-proceedings after his suit had been withdrawn. On the 4th of April 1879, the plaintiff instituted the present suit against the purchaser to recover possession of the property, on the ground that it was his own separate property purchased by his own money. In the fifth para, of his plaint he said the property belonged to himself, and in the first he asserted that he had purchased it with his own private money. It is, therefore, evident that, from the year 1875 up to the year 1879, the plaintiff continually asserted that this property was not joint property, but belonged to himself exclusively, and that no other member of his family had any interest in it.

2. In defence the purchaser said that the judgment-debtor of the former suit was the real owner of the property in dispute; that he and the plaintiff lived separately; and that the latter had no claim to the property. The Munsif dismissed the suit. He was of opinion that the plaintiff was not only barred from instituting a second suit on the ground that he had not obtained the sanction of the Court to its institution when he withdrew the former suit; but that he had no title to the property. On appeal the Subordinate Judge reversed the decision of the Munsif and gave plaintiff a decree for what he had never asked,-namely, a one-fourth share as a member of a joint and undivided Hindu family.

3. Before us several grounds have been raised. First, it has been contended that the present suit is barred by Section 97 of Act VIII of 1859 and Section 373 of Act X of 1877. We think that this contention is unsound. There is nothing on the record to show that the judgment-debtor was a party to the previous action. If he had been a party, the question would have assumed a different aspect, and it might have been fairly contended that the effect of that withdrawal would be to prevent any litigation between the plaintiff and the judgment-debtor in regard to the title to the property in dispute. But in the present case it cannot be shown that the judgment-debtor was a party, and it is impossible to hold that the present suit is barred.

4. Then it is said that the lower Court was wrong in giving plaintiff a decree on a title different from that which he put forward in his plaint. The general rule is that any amendment allowed must be such as is either raised in the pleadings or is consistent with the case as originally laid, and that the state of facts and the equities and ground of relief originally alleged and pleaded, by the plaintiff should not be departed from. This is the rule laid down by their Lordships of the Judicial Committee in the case of Eshen Chunder Singh v. Shama Churn Bhutto 11 Moore's I.A. 7 and this rule has been followed in numerous decisions of our Courts.

5. In the present suit, as we have already stated, plaintiff, from the very beginning of the dispute, asserted his exclusive right to the property. It is not a case where an amendment may be asked for on the ground that the matters connected with the suit were not known to him, but it is a case where plaintiff speaks exclusively front his own personal knowledge to the facts which go to constitute his cause of action. In our opinion the plaintiff should not have been allowed to have started a case which does not arise on the pleadings.

6. We accordingly set aside the decision of the lower Appellate Court and restore that of the first Court, dismissing plaintiff's suit with costs in this and in the lower Appellate Court.


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