1. The plaintiff-respondent brought the suit out of whichthis appeal arises, for a declaration of his title to and recovery of khaspossession of the land in suit. Defendants Nos. 1 and 41 contested the suit.The former claimed the land as appertaining to his estate. The latter supportedthe former and pleaded that he had taken settlement from him (the defendant No.1) and had been holding under such settlement for over 12 years. The Court offirst instance found the question of title in favour of the plaintiff. Therewas khas allegation in the plaint that there was an ijara lease of the land infavour of defendant No. 41 up to 1316, but that it was surrendered by him (thedefendant No. 41) after service of notice, before the institution of the suit.The Court of first instance held that the relinquishment had not been proved,and passed a decree declaring the plaintiffs title to the land and forpossession through defendant No. 41 till 1318. That decree was set aside onappeal and the case was remanded. When the case was decided after remand, theCourt of first instance gave a decree to the plaintiff for khas possession asthe lease had admittedly expired at the date of such decree, and that decree hasbeen affirmed on appeal by the lower Appellate Court with some variations.

2. The main question argued before us is whether, havingregard to the allegation in the plaint that the term of the ijara was up to1316, the case should not be remanded to the lower Appellate Court for afinding upon the point whether the ijara lease determined before theinstitution of the suit. We do not think, however, that we ought to remand thecase. The term of the ijara expired in 1316, i.e., before the final decree of theCourt of first instance. It, no doubt, expired after the institution of thesuit, but in exceptional cases Courts have taken cognizance of events since theinstitution of a suit on appeal, where the adoption of such a course tends to"shorten litigation and best subserve the ends of justice." Thedecree, therefore, which was passed by the Court of first instance originally(before remand) namely, that the plaintiff do recover possession through thedefendant No. 41 up to 1316 should not be passed now, when more than sevenyears have elapsed from the date of the expiry of the ijara.

3. Then again, the defendant No. 41 from before theinstitution of the suit repudiated the tenancy of the disputed land as beingincluded within the ijara under the plaintiff, and set up the title of thedefendant No. 1 and possession under him. He sided with the defendant No. 1throughout in this litigation and even in this Court filed the appeal jointlywith him.

4. Lastly, it has been urged before us that the defendantNo. 41 paid the ijara rent up to 1316 although be held the disputed land underdefendant No. 1, and that under these circumstances, there ought not to be anydecree for mesne profits in favour of the plaintiff either against defendantNo. 41 or against defendant No. 1. The question of mesne profits has been leftfor determination at a subsequent stage of the suit, and the question whetherdefendant No. 41 really paid the ijara rent up to 1316 will, therefore, bedetermined in a subsequent proceeding; and, if that question is found in favourof the defendant, the plaintiff will not be entitled to any mesne profits forthe period for which the ijara rent might have been paid by the defendant No.41. With these observations the appeal is dismissed with costs.

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Chinta Hararan Das and Ors.vs. Radha Charan Poddar(06.12.1916 - CALHC)