1. It is an appeal, under Clause 15 of the Letters Patent,from a judgment of Mr. Justice Chapman in an action in ejectment. The plaintiffinstituted this suit on the allegation that he had acquired a raiyati-interestin the land before 1893, and that on the 2nd May of that year, the firstdefendant became an under-raiyat under him on condition that he would havepermanent and heritable rights but would not be entitled to sell, mortgage orexchange the land and that if in contravention of the agreement, he transferredthe property, the plaintiff would be entitled to re-enter. In 1908, the firstdefendant sold his right as an under-raiyat to the second defendant. Thereuponthe plaintiff commenced this action on the 8th September 1908 to eject both thedefendants; he also prayed that the third defendant who was in occupation as atrespasser might be ejected. The suit was defended by the third defendant, whopleaded that the land did not belong to the plaintiff and that he himself heldit as raiyat under the superior landlord of the plaintiff. The Court of firstinstance dismissed the suit and that decision has been successively affirmed bythe Subordinate Judge and by this Court. It has been found that the thirddefendant did not hold under the landlord of the plaintiff, that the plaintiffhad established his alleged title, and that the third defendant came upon theland as an under-tenant of the first defendant. In this view, the Courts belowhave refused the plaintiff a decree for ejectment. But the Subordinate Judgehas stated at the same time that the question whether the third defendant was atenant under the first defendant would be left open, to be litigated again,between the parties, if occasion should arise. The plaintiff has now appealedto this Court and has argued that the Courts below should not have refused himrelief on a ground not only not urged by the third defendant but whollyinconsistent with the defence taken by him in his written statement. In ouropinion this contention is well-founded and must prevail.

2. No doubt, it cannot be maintained as an inflexible Ruleof law that a Court is not competent to determine that the rights of theparties litigants are really different from what is alleged either by theplaintiff or by the defendant. Nabadwipendra Mookerjee v. Madhu Sudan Mandal 16Ind. Cas. 741 : 18 C. W. N. 473; Jalim Singh v. Choonee Lal 11 Ind. Cas. 540 [LQ/CalHC/1911/295] :15 C. W. N. 882; Hira Lal v. Gribala Debi 34 Ind. Cas. 444 [LQ/MadHC/1915/511] : 23 C. L. J. 429But as was explained by Lord Westbury in the case of Eshen Chunder Singh v.Shamacharan Bhutto 11 M. I. A. 7 at p. 21 : 6 W. R. (P. C.) 57 : 2 Sar; P. C.J. 209 : 20 E. R. 3 : 2 Ind. Jur. (N. S.) 87 it is absolutely necessary thatthe determination in a cause should be founded upon a case either to be foundin the pleadings or involved in or consistent with the case there-by made. Inthat case, the plaintiff was restricted to the state of fact alleged by him inhis plaint. Similarly, in the cases of Chova Kara v. Isa bin Khalifa 1 B. 209 :1 Ind. Dec. (N. S.) 139 and Munchershaw Bezonji v. New Dhuramsey Spinning andWeaving Company 4 B. 576 : 5 Ind. Jur : 482 : 2 Ind. Dec. (N. S.) 891, it wasruled that the defendant must be restricted to the state of facts alleged inhis written statement or consistent therewith. In the case before us, therewere two alternative assertions before the trial Court. The plaintiff allegedthat he was a raiyat in respect of the disputed land under the superiorland-lord. The third defendant contradicted this allegation and claimed to bethe raiyat under the same landlord. There was no suggestion that the thirddefendant was an under-tenant under the first defendant who held as a tenantunder the plaintiff. In these circumstances, evidence was not and would not bedirected to the elucidation of the question whether the third defendant had atenancy under the first defendant. We are of opinion that the Courts belowshould not have refused relief to the plaintiff on the ground that the thirddefendant was a tenant under the first defendant.

3. What, then, is the relative situation of the parties Theplaintiff has established his title. The third defendant has failed to provehis assertion. The first defendant was a tenant under the plaintiff. He had notransferable right in the land, yet he has transferred the land to the seconddefendant. It has further been found that the first defendant, notwithstandingthe sale of the entire land of the tenancy, is in occupation of the homesteadportion which covers about one-tenth of the entire area, but he has made noarrangement for payment of rent to the plaintiff. There is thus ample indicationof his intention to sever all connection with the land as tenant under theplaintiff. In these circumstances, the plaintiff is clearly entitled to take upthe position that there has been an abandonment [Sailabala Debi v. SriramBhattacharya 7 C. L. J. 303 : 11 C. W. N. 873; Aminunnessa v. Jinnat Ali (2).

4. If, then, none of the defendants had a subsisting rightin the land at the date of the institution of the suit, there is no answer tothe claim for re-entry except the plea of limitation. Now the Courts below havefound that the third defendant has been in actual occupation of the land formore than twelve years. It appears that his possession commenced in 1894 or1895 : that is, after the land had been let out by the plaintiff to the firstdefendant on the 2nd May 1893. Consequently, time did not begin to run againstthe plaintiff till that tenancy had terminated. In support of this propositionreference may be made to the decisions in Womesh Chander Goopto v. Raj NarainRoy 10 W. R. 15; Krishna Gobind Dhur v. Hari Churn Dhur 9 C. 367 at p. 369 : 12C. L. R. 19. :4 Ind. Dec. ( 894; Sheo Sohye Roy v. Luchmeshur Singh 10 C. 577 :5 Ind. Dec. (N. S.) 387; Sarat Sundari Debia v. Bhobo Pershad Khan Chowdhury 13C. 101 : 6 Ind. Dec. (N. S.) 566 and Thamman Pande v. Maharaja of Vizianagram29 A. 593 : A. W. N. (1907) 185 : 4 A. L. J. 726. There is nothing to show thatthe first defendant had ceased to pay rent to the plaintiff before the transferin 1908. Consequently the case does not fall within the Rule recognized inGossain Mahendra Giri v. Rajani Kant Das : 1 C. W. N. 246.The tenancy in favour of the first defendant terminated in 1908 and the causeof action of the plaintiff to eject the third defendant thus arose shortlybefore the suit was instituted. Consequently the claim is not barred bylimitation.

5. The result is that this appeal is allowed, the decrees ofthe Courts below set aside and the suit decreed with costs in all the Court.

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Ishan Chandra Dhupivs. Nishi Chandra Dhupi and Ors.(15.03.1917 - CALHC)