1. This is an appeal by the defendants in a suit forrecovery of possession of land with mesne profits, on declaration of titlethereto. The Court of first instance found against the plaintiffs and dismissedthe suit. Upon appeal the Subordinate Judge has reversed that decision anddecreed the suit. In the present appeal, the only substantial question of lawwhich has been argued on behalf of the defendants is that as the interest ofthe plaintiffs in the property claimed was sold pendente lite in execution of adecree for arrears of rent and was purchased by the landlords, decree-holders,on the 19th November 1909, the suit should have been dismissed. The contentionin substance is that a decree for recovery of possession cannot properly bemade in favour of persons who, at the time the decree is made, are found tohave lost all interest in the property claimed by them. In our opinion there isno foundation for this position.

2. The rule was recognized in Radhay Koer v. Ajodhya Das 7C.L.J. 262 that a suit must be tried in all its stages on the cause of actionas it existed at the date of its commencement. This is in accord with theobservation of Lord Kingsdown in Anundomoyee v. Sheel Chunder 9 M.I.A. 287 atp. 301; 2 W.R. (P.C.) 19; Marsh. 455; 1 Suth. P.C.J. 485; 1 Sar. P.C.J. 854; 19E.R. 750 that in appeal the question is, whether the decision of the primaryCourt is correct on the facts as they stood when the judgment was rendered andthat no subsequent event or devolution of interest can affect that question,because to give effect to them, should (sic) quire it, would be the office, notof an appeal, but of some supplementary proceeding. As illustrations of thegeneral rule, reference may be made to the cases of Govinda v. Pe(sic)devi 12M. 136; Ramanadan Chetti v. Pulikutti Servai 21 M. 288; 8 M.L.J. 121; Wamanraov. Rustomji 21 B. 701; Raja of Venkatagiri v. Mokku Narasaya 7 Ind. Cas. 202 [LQ/MadHC/1910/264] ,37 M. 1; (1910) M.W.N. 369; 8 M.L.T. 258. But to this ordinary rule, exceptionshave been recognized on grounds fully explained in the case of Ram Ratan Sahuv. Mohant Sahu : 6 C.L.J. 74; 11 C.W.N. 732. The decisions inSakharam v. Hari Krishna 6 B. 113; Sangili v. Mookan 16 M. 350; 3 M.L.J. 137;Ahmadjee v. Mahamadjee 1 Bom. L.R. 218; Rustamji v. Purshotamdas 25 B. 606; 3Bom. L.R. 227; Balkishan v. Kishan Lal 11 A. 118, A.W.N. (1889) 42, 13 Ind.Jur. 309; Hazari Mull v. Janaki Prosad 6 C.L.J. 92, Ramyad Sahu v. BindeswariKumar Upadhya 6 C.L.J. 102; Udit Chobey v. Rashika Prasad Upadhya 6 C.L.J. 662;3 M.L.T. 41; Hedlot Khasia v. Ka Ran Khasiani 13 Ind. Cas. 377 [LQ/CalHC/1911/360] ; 15 C.L.J. 241and Banwari Lal v. Sheo Sankar Misser 1 Intl. Cas. 670; 13 C.W.N. 815 show thata Court may take notice of events which have happened since the institution ofthe suit and afford relief to the parties on the basis of the alteredconditions. This doctrine is of an exceptional character and is applied incases where it is shown that the original relief claimed has, by reason ofsubsequent change of circumstances, become inappropriate, or that it isnecessary to base the decision of the Court on the altered circumstances inorder to shorten litigation or to do complete justice between the parties. Asimilar view has been taken in England in Quitter v. Mapleson 9 Q.B.D. 672; 32L.J. Q.B. 44, 47 L.T. 362; 31 W.R. 75 and Attorney-General v. Birmingham, Tameand Rea District Drainage Board (1912) A.C. 788; 82 L.J. Ch. 45; 107 L.T. 76 J.P.481, where the principle was recognized that on appeal such a judgment may begiven as ought to be given if the case came at that time before the Court offirst instance (Cf. Order XLI, rule 33, of the Code of Civil Procedure, 1908.)The case before us obviously does not fall within the exception. The plaintiffsclaim to be owners of the disputed property and the allegation is that thedefendants have dispossessed them wrongfully. This has been investigated andfound to be substantially true by the Subordinate Judge. But the defendantscontend that as during the pendency of the litigation in the Court of firstinstance, there has been a devolution of interest, the plaintiffs are no longercompetent to maintain the suit. It cannot be disputed that in respect of mesneprofits from the date of dispossession, the claim of the plaintiffs has notbeen affected by the sale of their interest in the land. That portion of theclaim, at any rate, must be investigated, and before a decree for mesne profitscan be made in favour of the plaintiffs, the question of their title to theland also must be determined. The defendants are consequently restricted to thecontention that although the title of the plaintiffs to the land at the date ofthe suit may be established, relief should not be granted to them by way ofrecovery of possession, and that such relief can legitimately be awarded onlyto persons who have succeeded to the interest of the plaintiffs. For thisproposition no authority has been cited. On the other hand the argument, testedfrom the point of view of principle as well as convenience, seems obviouslyunreasonable. Under rule 10 of Order XXII of the Code of Civil Procedure, 1908,when there has been a devolution of interest during the pendency of a suit, thesuit may, by leave of the Court, be continued by or against persons to or uponwhom such interest has come or devolved. This entitles the person who hasacquired an interest in the subject-matter of the litigation by an assignmentor creation or devolution of interest pendente lite, to apply to the Court forleave to continue the suit. But it does not follow that it is obligatory uponhim to do so. If he does not ask for leave, he takes the obvious risk that thesuit may not be properly conducted by the plaintiff on record, and yet, aspointed out by their Lordships of the Judicial Committee in Moti Lal v.Karab-ul-Din : 25 C. 179, 24 I.A. 170; 1 C.W.N. 639, he willbe bound by the result of the litigation even though he is not represented atthe hearing. But the Legislature has not further provided that in the event ofdevolution of interest during the pendency of suit, if the person who hasacquired title does not obtain leave of the Court to carry on the suit, thesuit would stand dismissed. It is also plain that if the person who hasacquired an interest by devolution, obtains leave to carry on the suit, thesuit in his hands is not a new suit, for as Lord Kingsdown said in Prannath v.Rookea Begum 7 M.I.A. 323 at p. 353; 4 W.R. (P.C.) 37; 1 Suth. P.C.J. 367; 1Sar. P.C.J. 692; 19 E.R. 331 a cause of action is not prolonged by meretransfer of the title. It is the old suit carried on at his instance and he isbound by all proceedings up to the stage when he obtains leave to carry on the proceedings:Rajaram Bhagwat v. Jibai 9 B. 151; In the matter of the petition of SaratChandra, Singh 18 A. 285; A.W.N. (1896) 45. If this view were not maintained,what would be the result The suit commenced, by the plaintiff standsdismissed. The person who has acquired the right, title and interest of theplaintiff commences a fresh suit. His cause of action is the original cause ofaction upon which the first plaintiff commenced his suit. It may consequentlyhappen that while the plea of limitation would have been of no avail in answerto the claim of the original plaintiff, it may be very effective as an answerto the subsequent suit. It may also be asked, if the contention of theappellants were to prevail, what would happen in the event of a devolution ofthe interest of the defendants. Would the suit be heard ex parte, because theinterest of the defendants had passed to a stranger to the litigation, or wouldthe suit stand dismissed because it was at that stage a suit against a personwho had no interest in the litigation If the contention of the appellant wereupheld, there would obviously be endless litigation and the substantial rightsof litigants might be completely defeated. It is also worthy of note that atthe stage when the objection is taken, neither the Court nor the parties may bein a position to decide that there has been a final and operative devolution ofinterest. For instance if the devolution of interest is due to an executionsale of the right, title and interest of the plaintiff, the validity of thatsale may be challenged and the proceedings consequent thereon may beprotracted. Would the original suit be dismissed on the assumption that thesale was valid and operative If this course were pursued, what would happenif it ultimately transpired that the sale was inoperative and that there hadbeen no effective devolution of interest No doubt cases are conceivable, wherethe Court may have to stay the trial of the suit by reason of a devolution ofthe interest of one of the parties in favour of his opponent, For instance, ifthe interest claimed by the plaintiffs have been purchased by the defendants,the latter may fairly ask, that the suit be stayed till the question of thevalidity of the sale in their favour has been finally determined. But except incases of this peculiar character, it is plain that the trial of the suit shouldnot be arrested merely by reason of the devolution of the interest of theplaintiffs. The successor-in-interest may, if he chooses, obtain leave of theCourt under Order XXII, rule 10, but if he does not do so, the originalplaintiffs are entitled to continue the suit and their successor will be boundby the result of the litigation. The consequence will be that the plaintiffs,if successful, will obtain a decree which will enure to the benefit of theirsuccessor.

3. The result is that the decree of the Subordinate Judge isconfirmed and this appeal dismissed with costs.

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Rai Charan Mandal vs.Biswanath Mandal (13.05.1914 - CALHC)