1. The subject-matter of this litigation is a ditch lying between the homestead of the plaintiffs and the defendants. This ditch has been obstructed by the defendants, and the plaintiffs ask for a declaration that the ditch belongs to them, or in the alternative, that they have acquired a right of easement therein for the passage of their boats.
2. The Munsiff, who tried the suit, found that part of the ditch belonged to the plaintiffs and that over the remainder 'they had acquired a right of easement, and he passed a decree in accordance with the findings. The Subordinate Judge on appeal by the defendants considered that the alternative claims made by the plaintiffs were inconsistent, for they could not claim a right of easement over the land in respect of which they alleged that they had a proprietary right. He was of opinion that the suit framed in this way is not maintainable and he accordingly dismissed it.
3. The view taken by the Subordinate Judge is in accordance with the decision of this Court in Bijoy Keshub Roy v. Obhoy Churn Ghose (1871) 16 W.R. 198. The subject-matter of that suit was the right to hold a hat partly on land and partly on water and the plaintiff alleged 'first his proprietary right in the bank of the khal on and opposite to which the hat is held, and secondly, his right by prescription to hold the hat there.' The Court held that this was a case, which was in itself double and inconsistent and on this ground they dismissed the suit.
4. I venture to think with all respect to the Judges, who decided that case, that if they meant to affirm--and it seems to me that they did mean to affirm--that a suit could cot be maintained, in which relief was sought on two inconsistent cases in the alternative, their decision was erroneous.
5. The Judges remark, 'at this moment the plaintiff asserts, and has no intention of ceasing to assert, title as proprietor to the site of this hat. If he is really proprietor, he may be entitled to a decree as such, but he certainly cannot be entitled to a decree declaring a right by prescription.' On the premises laid down the conclusion is incontrovertible; a proprietor certainly is not entitled to a decree declaring a right by prescription. There seems however no valid reason why, if he fails to prove his title as proprietor, but can prove title to an easement by prescription, he should not get a decree.
6. This decision was noticed in a later case, Dhunput Singh v. Narain Pershad Singh (1873) 20 W.R. 94, decided by Sir Richard Couch, Chief Justice, and Mr. Justice Glover, who remarked as follows: ' When plaintiff asks for the establishment of two rights, and it appears that he is only entitled to one of them, the other must, in some way, be relinquished and abandoned. The remarks of Mr. Justice Macpherson to that extent appears to us to be sound, and we are not indisposed to concur with them, but we are not certain that, if a case of that kind came before us, we should not consider it sufficient to insert in the decree a declaration, which would bar the plaintiff's right to that which he had failed to establish, and should give him a decree for that which he had established.' These observations, while they uphold the proposition that effect cannot be given to the claim of two inconsistent rights in one suit, but that one or the other must be in some way relinquished or abandoned, appear to me to throw considerable doubt on the correctness of the order dismissing the suit. The case, however, before Couch C.J., and Glover, J., was one in which two inconsistent oases were put forward by the defendant, and it was therefore not necessary to express agreement or disagreement with the other case.
7. The truth of the matter seems to me to be this that, while there is an undoubted inconsistency in claiming a right of ownership and a right of ownership jointly in the same land, there is no real or necessary inconsistency in claiming either of these rights in the alternative. In a case like the present a plaintiff may very well allege bona fide: 'I believe the land to be mine, but I may be unable to prove it; if I should fail to prove it I can at any rate prove that I have been using the right of way as an easement uninterruptedly and as of right for over 20 years.' There appears to me no reason in principle why a claim like this in the alternative should not be tried, or why the plaintiff should be forced first to bring a suit to establish his right of ownership, and if that fails, then to bring a suit to establish the right of easement. The trial of the claim in the alternative in one suit would tend to avoid a multiplicity of suits, in compliance with Section 42 of the Code of Civil Procedure, which provides that 'Every suit shall, as far as practicable, be so framed as to afford ground for a final decision upon the subjects in dispute' and so to prevent further litigation concerning them. In support of the judgment under appeal the learned pleader for the respondent referred to Chuni Lal Fulchand v. Mangal Das Govardhan Das (1891) I.L.R. 16 Bom. 592, A suit, which the plaintiffs in that case had previously brought to recover a plot of land by virtue of their ownership, had been dismissed and they now brought a second suit to establish a right of easement in the plot. It was held that the evidence produced in the first suit to prove user by right of ownership was inconsistent with their present claim to the user as an casement. The decision therefore was on the evidence. The case before me has not reached the stage for the evidence to be considered by the Subordinate Judge. He has dismissed it solely on the ground that the claims in the alternative could not bo considered in one suit.
8. The decision of the Privy Council in Mahomed Buksh Khan v. Hosseini Bibi (1888) I.L.R. 15 Calc. 684 has been relied on by both sides before me. The head note at first sight supports the view taken by the Subordinate Judge. The first two paragraphs of it are as follows:--'The execution of a hebanama having been denied by the plaintiff in a suit brought by her to have it set aside as fabricated, she also alleged that undue influence had been exercised upon her. The above question being inconsistent with one another, the latter should not have been admitted to form part of an issue together with the former.' This head note, to my mind, is very misleading. It seems to imply that. the allegation of undue influence was made in the plaint, and that the reason why the Privy Council held that the two questions of forgery and of undue influence should not have been tried together was that they were inconsistent with one another. It is clear, however, from the judgment that the allegation of undue influence was never made in the plaint. At page 689 the observation is made that 'the ground of action alleged by the plaint is that the hebanama was a fabricated document and that the alleged signature of Shahzadi was a forgery.' Again on page 700 Lord Macnaghten remarks, 'The plaint is based on forgery, and forgery alone.' Now, the second issue drawn up was 'whether the hebanama on behalf of Shahzadi is genuine and valid and executed with her knowledge and consent, or whether it was manufactured without her knowledge and consent, or whether it was executed under undue influence.' It was on this issue that the Privy Council remarked, 'In their Lordships' opinion the latter part of that issue ought not to have been admitted. It was absolutely inconsistent with the case made by the plaintiff. It only becomes possible on the assumption that the alleged cause of action is unfounded.' Therefore the ground on which it was held that the question of undue influence should not have formed part of the issue, was that it was not only no part of the plaintiff's but was actually inconsistent with the case set up. by her. That remark affords no basis for the proposition that where a plaintiff sets up both forgery and undue influence both these questions cannot be tried in the same suit. It is true that a plaintiff, whose signature appears on a document, can hardly be acting bond fide when she in the same breath alleges that the document was forged, and that it was executed by her under undue influence or coercion. She must know whether she executed it or not. If she executed it, the deed cannot be a forgery; if the deed was a forgery, she cannot have executed it under undue influence. The inconsistency of the two allegations may be, and probably would be, a ground for viewing them both with the gravest suspicion, but does not, as a matter of pleading, render the suit not maintainable. That this is the correct view of the matter is shown by the fact that the Privy Council, after deciding that the document bad been executed by Shahzadi, went on to try the question whether it had been obtained by undue influence and coercion. The case before me is still stronger because the inconsistency of the plaintiff's allegations does not, as I have shown, necessarily cast any reflection on his bond fides.
9. The view, which I take, is in accord with that expressed by the Allahabad High Court in Jino v. Manon (1895) I.L.R. 18 All. 125, where it was held that inconsistency in the allegations contained in a plaint does not justify the Court in dismissing the suit. As, however, it is opposed to the ruling of this Court, reported in 16 Weekly Reporter, I accordingly refer the following question for the decision of a Full Bench:
10. Whether a suit is liable to be dismissed because the plaintiff claims in the alternative over the same plot of ground rights.
(1) of ownership and
(2) of easement?
11. Dr. Priya Nath Sen for the appellants. The dispute in this case relates to a ditch lying between the homesteads of the plaintiffs and the defendants. The plaintiffs have set up a proprietary right in the first place, and submitted, in the next place, that if it were found that they had no such right, they had at least a right of easement. Plaintiffs, therefore, have set up an alternative, but not an inconsistent case. It has been decided in an unreported case, viz., Letters Patent Appeal No. 39 of 1905 that such a suit is maintainable. According to the practice in the Courts of England a plaintiff may rely upon several different rights alternatively, although they may be inconsistent. See Annual Practice, 1906, Vol. I, page 227.
12. Babu Dwarka Nath Chukerbutty for the respondent. The plaintiffs ought to have been called upon to elect. In fact they did put in a petition of election in the Lower Appellate Court. [Geidt J.--But that was not accepted in your objection.] I do not think I can oppose a remand.
Francic W. Maclean, C.J.
13. I think the question referred to us ought to be answered in the negative. I see the point was practically decided in the way I have said by Mr. Justice Geidt and myself in a Letters Patent Appeal (No. 39 of 1905), in which we affirmed the decision of Mr. Justice Mookerjee. The practice we then affirmed seems to be in accord with that of the Courts in England, and I see no objection to it.
14. The appeal must therefore be allowed and the case sent back to the Subordinate Judge to be tried out on the merits.
15. The appellant must have his costs of this Court, both here and before Mr. Justice Geidt.
Chunder Madhub Ghose, J.
16. I agree.
17. I also agree.
18. I also agree.
19. I also agree.