N. Chatterjea, J.
1. This appeal arises out of a suit for recovery of rent brought by the plaintiff, on the allegation that the lands, for which the rent was claimed, had been settled with the defendant No. 1. The latter denied the relation of landlord and tenant with the plaintiff and set up one Jagadambi as his landlord. The Court of first instance held that the relation of landlord and tenant existed between the plaintiff and the defendant and gave a decree to the plaintiff. On appeal, the learned Subordinate Judge disbelieved the story of the settlement of the land by the plaintiff with the defendant No. 1, as also the alleged settlement by Jagadambi set up by the defendant, and held that the position of the defendant No. 1 was no better than that of a trespasser, but that plaintiff's title was proved and that he was entitled to recover rent for use and occupation from the defendant No. 1.
2. The defendant No. 1 has appealed to this Court and the question raised in this appeal is whether the plaintiff is entitled to compensation for use and occupation in the suit as framed.
3. In the plaint, there is no alternative claim for rent for use and occupation; the defendant No. 1, therefore, had no notice that the plaintiff, if he failed to prove the settlement set up in the plaint, would claim rent for occupation of the land, and he is apparently not willing to be treated as tenant of the plaintiff. In a suit for rent, where no alternative claim is made for use and occupation, no rent can be decreed on that footing. This was decided by the Full Bench in the case of Lukhee Kanto Dass Chowdhry v. Sumeeruddin Lusker 13 B.L.R. 243 : 21 W.R. 208 and we are bound by that decision. No doubt, in the cases referred to in the judgment of the Court below, it was held that tenancy in this country is created not only by contract but also by occupation of land so far as agricultural lands are concerned, and rent for use and occupation was decreed. But the question is not whether rent for use and occupation can be decreed in a suit for rent, but whether a decree on that footing can be made where there is no alternative claim for use and occupation, As pointed out by the Privy Council in the case of Eshan Chunder Singh v. Shama Churn Bhutto 11 M.I.A. 7 at p. 20 : 6 W.R. (P. C) 57 the determination in a cause should be founded upon a case either to be found in the pleadings or involved in or consistent with the case thereby made'.
4. In the case of Surnomoyee v. Dino Nath Gir Sunnayasee 9 C. 908 : 13 C.L.R. 69 and Azim Sirdar v. Ram Lall Shaha 25 C. 324 the learned Judges treated the Full Bench case of Lakhee Kanto Dass Chowdhry v. Sumeeruddin Lusker 13 B.L.R. 243: 21 W.R. 208 as laying down that the landlord is entitled to rent or compensation for the use of the land, where he is unable to prove the kabulyat under which rent is claimed, but the Fall Bench distinctly held that the question whether the landlord is entitled to rent for use and occupation, depends upon the claim which is stated in the plaint and that where a claim for rent on account of such occupation is not made in the plaint, the landlord is not so entitled. This view has been accepted and followed in Surendra Narain Singh v. Bhai Lal Thakur 22 C. 752; Rachhea Singh v. Upendra Chandra Singh 27 C. 239 and Gobinda Sundar Singh Chowdury v. Srikrishna Chakravarty 10 C.L.J. 538 : 6 M.L.T.255 : 3 Ind. Cas. 346. In the present case, rent was claimed under an alleged settlement with the defendant. The plaintiff failed to prove it, and the defendant may wells complain that a decree for use and occupation ought not to have been given when there was no such claim and he had no notice of such a claim.
5. Section 157 of the Bengal Tenancy Act, no doubt, provides that when a plaintiff instituted a suit for the ejectment of a trespasser, he may, if he thinks fit, claim an 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. But the suit has not been framed according to the provisions of that section. The plaintiff does not claim that the defendant be declared liable to pay a fair and equitable rent to be determined by the Court; the suit is based upon a contract of tenancy which he has failed to prove.
6. Of course, the Court may allow the plaint to be amended but the amendment should be allowed only where the claim has been omitted by mistake or inadvertence or, for similar reasons, and not deliberately. Here the plaintiff sued for rent upon a specific case of settlement with the defendant which has been found to be false, and it is not a case where he should be allowed to amend the plaint by claiming a relief not consistent with the claim originally laid.
7. The decrees of the Courts below are accordingly set aside and the suit dismissed with costs.
Lawrence Jenkins C.J.
7. I agree.