Bhagwati Prasad Vs. Shrichandramaul
 INSC 218 (19 October 1965)
19/10/1965 GAJENDRAGADKAR, P.B.
(CJ) GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
CITATION: 1966 AIR 735 1966 SCR (2) 286
R 1980 SC 727 (10) RF 1987 SC1242 (6)
Practice & Procedure-Details in
pleadings-When deemed sufficient.
Licensee Ejected, if liable to pay mesne
The respondent filed a suit alleging that he
was the owner of a house let out to the appellant as a tenant and claimed a
decree for the appellant's ejectment, arrears of rent and future mesne profits.
The appellant admitted that the land over which the house had been constructed
belonged to the respondent but pleaded that the house had been constructed by
the appellant at his own cost on the condition that he would continue to occupy
it until the amount spent by him on the construction was. repaid to him by the
respondent. The trial court disbelieved the appellant's version and also
disbelieved the agreement as to the rent on which the respondent relied and
held that the relationship of landlord and tenant had been proved and that the
respondent was entitled to a decree for ejectment as well as to a reduced
-amount by way of rent and directed the appellant to pay damages by way of use
and occupation till the date of ejectment. On appeal the High Court held that
the appellant must be deemed to have been in possession of the house as a
licensee and treating the respondent's claim for ejectment on the basis that
the appellant was proved to be a licensee of the premises, the High Court
confirmed the decree for ejectment; but it set aside the decree to pay past
rent and mesne profits being of the view that even if the respondent's case
about the tenancy had been proved, such a tenancy would have been invalid
because of the relevant statutory provisions then prevailing in the area. Both
the appellant and respondent appealed to this Court :
HELD : If a party asked for a relief on a
clear and specific ground, and in the issues or at the trial, no other ground
was covered either directly or by necessary implication, it would not be open
to the said party to attempt to sustain the same claim on a ground which is
entirely new. But where the substantial matters relating to the title of both
the parties to the suit are touched, though indirectly, in the issues, and
evidence has been led about them, then the argument that a particular matter
was not expressly taken in the pleadings would be purely fornication and technical
and cannot succeed in every case. What the court has to consider in dealing
with such an objection is : did the parties know that the matter in question
was involved in the trial, and did they lead evidence about it ? If it appears
that the parties did not know that the matter was in issueat the trial and one
of them has had no opportunity to lead evidence in respect of it, that
undoubtedly would be a different matter [290 F; 291 D-F] In the present case,
having regard to all the facts, the High Court did not err in confirming the
decree for ejectment on the ground that the appellant was in possession of the
suit premises as a licensee. On the pleas taken by the appellant in his written
statement in clear and unambiguous language, only two issues could arise
between the parties : is the 287 appellant the tenant of the respondent or is
he holding the property as the licensee subject to the terms specified in the
written statement? In effect, the written statement pleaded licence, subject to
the condition that the licensee was to remain in possession until the amount
spent by him was returned by the respondent. [292 G-H] Trojan & Co. Ltd. v.
Rm. N. N. Nagappa Chettiar,  S.C.R. 789 and Sheodhar Rai & Ors. v.
Suraj Prasad Singh & Ors., A.I.R. 1954 S.C. 758, referred to.
In regard to the respondent's claim for past
'rent, no interference was called for with the decree passed by the High Court,
but its decree in relation to future mesne profits could not be sustained. Once
it was held that the respondent was entitled to eject the appellant it followed
that from the date of the decree granting the relief ejectment to the
respondent the appellant who remained in possession of the property despite the
decree, must pay mesne profits or damages for use and occupation of the said
property until it was delivered to the respondent. A decree for ejectment in
such a case must be accompanied by a direction for payment of the future mesne
profits or damages. [294F-H]
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 964 and 965 of 1964.
Appeals from the judgments and decree dated
December 14, 1962 of the Allahabad High Court in First Appeal No. 564 of 1958.
M. C. Setalvad, J. P. Goyal, for appellant
(In C. A. No. 964of 1964) and respondent (In C.A. No. 965 of 1964).
A. Ranganadham Chetty, E. C. Agarwala and P.
C. Agarwala, for respondent (In C.A. No. 964 of 1964) and appellant (In C.A.
No. 965 of 1964).
The Judgment of the Court was delivered by
Gajendragadkar, C.J. These two cross appeals arise from a suit filed by
Chandramaul (hereinafter called the plaintiff) against Bhagwati Prasad
(hereinafter called the defendant) in the Court of the Second Civil Judge,
Kanpur. The, plaintiff' alleged that he was the owner of house No. 59/8,
Nachghar, Birhana Road, Kanpur and that he had let out the said house. to the
defendant as his tenant. According to the plaint, the plaintiff and the
defendant were friends and enjoyed mutual confidence. As the house was being
constructed, the defendant wanted some premises for residence, and so, when the
ground floor was constructed he was let in as a tenant by the plaintiff on a
monthly rent of Rs. 150 in 1947. In 1948, the first floor was completed and the
defendant took that portion as well as a tenant on an additional rent of Rs.
150 p.m. By 1950, another floor had been added and the defendant was given the
said floor as Sup.C.I./665 288 well on a further additional rent of Rs. 150
p.m. Thus, the defendant was in possession of the house as a tenant of the
plaintiff on the condition that he was to pay Rs. 450 p.m.
as rent. The defendant continued to pay this
rent and was not in arrears in that behalf as on the 31st March, 1954.
Thereafter, he failed to pay the rent, and
so, the plaintiff terminated his tenancy and brought the present suit on the
30th November, 1955 claiming ejectment against the defendant and a decree for
Rs. 8,550 as arrears of rent from the 1st April, 1954 to the end of October,
1955. Future mesne profits were also claimed.
The defendant admitted that the land over which
the house stood belonged to the plaintiff. He, however, pleaded that the house
had been constructed by the defendant at his own cost and that too at the
request of the plaintiff, because the plaintiff had no funds to construct the
building on his own. Having constructed the house at his own cost, the
defendant went into possession of the house on condition that the defendant
would continue to occupy the house until the amount spent by him on the
construction was repaid to him by the plaintiff. According to the defendant, he
had spent Rs. 32,704-1-0 on the construction of the house.
Basing himself on this agreement, the
defendant resisted the claim made by the plaintiff for ejectment as well as for
On these pleadings, the learned trial Judge
framed seven issues. He disbelieved the defendant's version in regard to the
construction of the house and found that the agreement set up by him in that
behalf on the basis that he spent the money on the construction of the house
himself, had not been established. He also disbelieved the plaintiffs case
about the agreement as to rent ,on which the plaintiff relied.
According to the trial Judge, the defendant
had admitted the ownership of the plaintiff, and having regard to the pleadings
and the evidence adduced by the parties, he came to the conclusion that the
relationship of landlord and tenant had been proved. Having made this specific
basic finding, the learned trial Judge held that the suit was competent and
came to the conclusion that the plaintiff was entitled to a decree for
ejectment as well as for rent.
In regard to the amount of rent, however, the
learned trial Judge did not accept the plaintiff's version and considered the
question on the merits. He held that Rs. 300 p.m. would be a reasonable rent for
the premises in question. That is how he passed a decree for Rs. 5,700 in
favour of the plaintiff as arrears of rent from 1st April, 1954 up to the 31st
October, 1955. The 289 decree further directed the defendant to pay damages by
way of use and occupation at the rate of Rs. 300 p.m. till the date of
Against this decree the defendant preferred
an appeal before the Allahabad High Court. The High Court has agreed with the
trial Court in disbelieving the defendant's version about the construction of
the house and about the terms and conditions on which he had been let into
possession. The High Court was also not satisfied with the plaintiff's version
about the tenancy between him and the defendant.
Having regard to the fact that the defendant had
virtually admitted the title of the plaintiff, the High Court held that the
defendant must be deemed to have been in possession of the house as a licensee;
and treating the plaintiff's claim for ejectment on the basis that the
defendant was proved to be a licensee of the premises, the High Court has
confirmed the decree for ejectment passed by the trial Court.
It has, however set aside the said decree
insofar as it directed the defendant to pay past rent at the rate of Rs.
300 p.m. This decision was the result of the
fact that the High Court was not satisfied that the plaintiff had established
any of the terms of the tenancy. In that connection, the High Court has
referred to the fact that even if the plaintiffs case about the tenancy had
been proved, such a tenancy would have been invalid because of the relevant
statutory provisions then prevailing in the area. In December,, 1946, the State
Government of U.P. had issued an Ordinance controlling the letting of
residential and non-residential accommodation. This Ordinance was later enacted
as the U.P. (Temporary) Control of Rent and Eviction Act (No. III) of 1947. The
material provisions of this Act as well as the previous Ordinance require that
no premises could be lord without the permission of the District let out by the
land Magistrate or other appropriate, authorities mentioned in that behalf.
Thus, the tenancy not having been proved, the High Court came to the conclusion
that it would be inappropriate to allow any rent to the plaintiff at all.
That is how while confirming the decree for
ejectment passed by the trial Court, the High Court rejected the plaintiff's
case for rent or for mesne profits. It appears that his claim for future mesne
profits was also not upheld.
Against this decree Civil Appeals Nos. 964
and 965 of 1964 have been filed in this Court by the plaintiff and the
defendant respectively with a certificate granted to them by the High Court in
that behalf. The defendant objects to the decree, for ejectment, whereas the
plaintiff objects to the rejection of his claim for the past rent and future
Mr. Setalvad for the defendant contends that
in confirming the trial Court's decree for ejectment., the High Court has made
a new case for the plaintiff, and that, according to him, is not permissible in
law. The plaintiff came to the Court with a clear and specific case of tenancy
between him and the defendant and that case has been rejected by the High
Court. As soon as the plaintiff's case of tenancy was rejected, Ms claim for
ejectment should also have been negative. In support of this argument Mr.
Setalvad has referred us to the decision of this Court in Trojan & Co.
Ltd. v. Rm. N. N. Nagappa Chettiar(1). In
that case, this Court has observed that it is well-settled that the decision of
a case cannot be based on grounds outside the pleadings of the parties and it
is the case pleaded that has to be found. It is necessary to remember that
these observations were made in regard to a claim made by the plaintiff for a
certain sum of money on the ground that the defendant had sold certain shares
belonging to him without his instructions, but he had failed to prove that the
sale had not been authorised by him. The question which the Court had to
consider in the case of Trojan & Co.(,,) was that in view of the
plaintiff's failure to prove his case that the impugned sale was unauthorised,
was it open to him to make a claim for the same amount on the ground of failure
of consideration ? And this Court held that such a claim which was new and
inconsistent with the original case could not be upheld.
There can be no doubt that if a party asks
for a relief on a clear and specific ground, and in the issues or at the trial,
no other ground is covered either directly or by necessary implication, it
would not be open to the said party to attempt to sustain the same claim on a
ground which is entirely new.) The same principle was laid down by this Court
in Sheodhar Rai & Others v. Suraj Prasad Singh & Others(1). In that
case, it was held that where the defendant in his written statement sets up a
title to the disputed lands as the nearest reversionary, the Court cannot, on
his failure to prove the said case, permit him to make out a new case which is
not only not made in the written statement, but which is wholly inconsistent
with the title set up by the defendant in the written statement. The new plea
on which the defendant sought to rely in that case was that be was holding the
suit property (1)  S.C.R. 789.
(2) A.I.R. 1954 S.C.R. 758.
291 under a shikmi settlement from the
nearest reversioner. It would be noticed that this new plea was in fact not
made in the written statement, had not been included in any issue and,
therefore, no evidence was or could have been led about it. In such a case
clearly a party cannot be permitted to justify its claim on a ground which is
entirely new and which is inconsistent with the ground made by it in its
But in considering the application of this
doctrine to the facts of the present case, it is necessary to bear in mind the
other principle that considerations of form cannot override the legitimate
considerations of substance. If a plea is not specifically made and yet it is
covered by an issue by implication, and the parties knew that the said plea was
involved in the trial, then the mere fact that the plea was not expressly taken
in the pleadings would not necessarily disentitle a party from relying upon it
if it is satisfactorily proved by evidence. The general rule no doubt is that the
relief should be founded on pleadings made by the parties. But where the
substantial matters relating to the title of both parties to the suit are
touched, though indirectly or even obscurely in the issues, and evidence has
been led about them, then the argument that a particular matter was not
expressly taken in the pleadings would be purely formal and technical and
cannot succeed in every case. What the Court has to consider in dealing with
such an objection is : did the parties know that the matter in question, was
involved in the trial, and did they lead evidence about it ? If it appears that
the parties did not know that the matter was in issue at the trial and one of
them has had no opportunity to lead evidence in respect of 'it, that
undoubtedly would be a different matter. To allow one party to rely upon a
matter in respect of which the other party did not lead evidence and has had no
opportunity to lead evidence, would introduce considerations of prejudice, and
in doing justice to one party, the Court cannot do injustice to another.
Therefore, in dealing with Mr. Setalvad's
argument, our enquiry should not be so much about the form of the pleadings as
their substance; we must find out whether the ground of licence on which the
plaintiff's claim for ejectment has been confirmed by the High Court was in
substance the subject,-matter of the, trial or not; did the defendant know that
alternatively, the plaintiff would rely upon the plea of licence and has
evidence been given about the said plea by both the parties or not ? If the
answers to these questions are in favour of the plaintiff, then the technical
292 objection that the plaint did not specifically make out a case for licence,
would not avail the defendant.
Turning then to the pleadings and evidence in
this case, there can be little doubt that the defendant knew what he was
specifically pleading. He had admitted the title of the plaintiff in regard to
the plot and set up a case as to the manner in which he spent his own money in
constructing the house. The plaintiff led evidence about the tenancy set up by
We and the defendant led evidence about the agreement on which he relied. Both
the pleas are clear and specific and the common basis of both the pleas was
that the plaintiff was the owner and the defendant was in possession by Ms
permission. In such a case 'the relationship between the parties would be
either that of a landlord and tenant, or that of an owner of property and a
person put into possession of it by the owner's licence. No other alternative
is logically or legitimately possible. When parties led evidence in this case,
clearly they were conscious of this position, and so, when the High Court came
to the conclusion that the tenancy had not been proved, but the defendant's
agreement also had not been established, it clearly followed that the defendant
was in possession of the suit premises by the leave and licence of the
Once this conclusion was reached, the
question as to whether any relief can be granted to the plaintiff or not was a
mere matter of law, and in deciding this point in favour of the plaintiff, it
cannot be said that any prejudice has been caused to the defendant.
When Mr. Setalvad was pressing his point
about the prejudice to the defendant and the impropriety of the course adopted
by the High Court in confirming the decree for ejectment on the ground of
licence, we asked him whether he could suggest to us any other possible plea
which the defendant could have taken if a licence was expressly pleaded by the
plaintiff in the alternative. The only answer which Mr. Setalvad made was that
in the absence of definite instructions, it would not be possible for him to
suggest any such plea. In our opinion, having regard to the pleas taken by the
defendant in his written statement in clear and unambiguous language, only two
issues could arise between the parties : is the defendant the tenant of the
plaintiff, or is he holding the property as the licensee subject to the terms
specified by the written statement ? In effect, the written statement pleaded
licence, subject to the condition that the licensee was to remain in possession
until the amount spent by him was returned by the plaintiff. This latter plea
has been rejected, while the admission about the permissive character of the
defendant's possession remains. That is 293 how the High Court has looked at
the matter and we are unable to see any error of law in the approach adopted by
the High Court in dealing with it.
In support of its conclusion that in a case
like the present a decree for ejectment can be passed in favour of the
plaintiff,. though the specific case of tenancy set up by him is not proved,
tile High Court has relied upon two of its earlier Full Bench decisions. In
Abdul Ghani v. Musammat Babni(1), the Allahabad High Court took the view that
in a case where the plaintiff asks for the ejectment of the defendant on the
ground that the defendant is a tenant of the premises, a decree for ejectment
can be passed even though tenancy is not proved, provided it is established
that the possession of the defendant is that of a licensee.
It is true that in that case, before giving
effect to the finding that the defendant was a licensee, the High Court
remanded the case, because it appeared to the High Court that part of the case
had not been clearly decided. But once the finding was returned that the
defendant was in possession as a licensee, the High Court did not feel any
difficulty in confirming the decree for ejectment, even though the plaintiff
had originally claimed ejectment on the ground of tenancy and not specifically
on the ground of licence. To the same effect is the decision of the Allahabad
High Court in the case of Balmakund v. Dalu (2).
It is hardly necessary to emphasise that in a
matter of this kind, it is undesirable and inexpedient to lay down any general
rule. The importance of the pleadings cannot, of course, be ignored, because it
is the 'Pleadings that lead to the framing of issues and a trial in every civil
case has inevitably to be confined to the issues framed in the suit.
The whole object of framing the issues would
be defeated if parties are allowed to travel beyond them and claim or oppose
reliefs on grounds not made in the pleadings and not covered by the issues. But
cases may occur in which though a particular plea is not specifically included
in the issues, parties might know that in substance, the said plea is being
tried and might lead evidence about it. It is only in such a case where the
Court is satisfied that the ground on which reliance is placed by one or the
other of the parties, was in substance, at issue between them and that both of
them have had opportunity to lead evidence about it at the trial that the
formal requirement of pleadings can be relaxed. In the present case,. having
regard to all the facts, we are unable to hold that the High Court erred in
confirming the decree for ejectment passed by the (1) I.L.R. 25 All. 256.
(2) I.L.R. 25 All. 498.
294 trial Court on the ground that the
defendant was in possession of the suit premises as a licensee. In this case,
the High Court was obviously impressed by the thought that once the defendant
was shown to be in possession of the suit premises as a licensee, it would be
futile to require the plaintiff to file another suit against the defendant for
ejectment on that basis. We are not prepared to hold that in adopting this
approach in the circumstances of this case, the High Court can be said to have
gone wrong in law.
The result is, the appeal preferred by the
defendant fails and is dismissed.
That takes us to the appeal preferred by the
This appeal is confined to the plaintiff's
case for past rent and future mesne profits, As we have, already indicated, the
judgment of the High Court seems to suggest that the High Court set aside the
trial Court's decree for Rs. 5,700 as well as for the payment of future mesne
profits. It is true that the judgment is somewhat ambiguous oil this point, but
the decree drawn is clear and it shows that the plaintiffs claim both for past
rent and future mesne profits has been rejected by the High Court. the
application for leave to appeal to this Court presented by the plaintiff in
the, High Court has expressly challenged the decree passed by the High Court
both in regard to the past rent and the future mesne profits. In fact, the
valuation of the appeal has been placed at over Rs. 20,000 on that basis. So,
there can be no doubt that the plaintiff's appeal is directed against the
refusal of the High Court to grant past rent as well as future mesne profits.
In regard to the plaintiffs claim for past
rent, we see no reason to interfere with the decree passed by the High Court.
But we do not see how the High Court's decree in relation to future mesne
profits can be sustained. Once it is held that the plaintiff is entitled to
eject the defendant, it follows that from the date of the decree granting the
relief of ejectment to the plaintiff, the defendant who remains in possession
of the property despite the decree, must pay mesne profits or damages for use
and occupation of the said property until it is delivered to the plaintiff. A
decree for ejectment in such a case must be accompanied by a direction for
payment of the future mesne profits or damages. Then as to the rate at which
future mesne profits can be awarded to the plaintiff, we see no reason to
differ from the view taken by the trial Court that the reasonable amount in the
present case would be Rs. 300 per month.
295 In the result, the plaintiff's appeal is
partly allowed and a decree is passed in his favour directing the defendant to
pay to ,he plaintiff future mesne profits at the rate of Rs. 300 p.m. from '.he
date of the trial Court's decree, i.e., 16th October, 1958, until the date of delivery of possession of the property in suit to the plaintiff. In the
circumstances of this case, we direct that parties should bear own costs in
both the appeals.
Appeal allowed in part.