Authored By : Henry Thoby Princep, S.C. Ghose

Henry Thoby Princep and S.C. Ghose, JJ.

1. Plaintiff, as proprietor of a share, claimed rent, undera verbal agreement, for a hat from defendants, his co-sharer being made adefendant by order of the Court, and the Munsif gave him a decree. On appealthe suit was dismissed by the Subordinate Judge on the ground that a hat" being Immovable property, and the lease being for more than one year,no verbal agreement could be proved; hence it could, under Section 107 of theTransfer of Property Act, be effected only by a registered instrument.

2. In second appeal plaintiff contends that a hat is notImmovable property and that consequently Section 107 of the Transfer ofProperty Act does not apply. But a hat is a benefit arising out of land, andtherefore within the definition of Immovable property as given in Section 2,Clause (5) of the General Clauses Act, and consequently the lease of a"hat" comes within Section 107 of the Transfer of Property Act, andcan be effected only by a registered instrument.

3. Plaintiff, appellant, however, contends in thealternative, that, if this view of the law be adopted, he should obtain adecree for use and occupation, as admittedly the defendants are found to be inpossession of the hat of which he is the part-proprietor. That would amount toan amendment of his plaint. The question, therefore, arises, whether this ispermissible, and specially in the present stage of the proceedings, that is, insecond appeal, when the suit has been tried in two Courts as originally broughtas a suit for rent upon an alleged contract. The matter for our consideration,in the first instance, is whether this would be an amendment so as to convert asuit of one character into a suit of another and inconsistent character(section 53, Code of Civil Procedure).

4. The leading case on the subject is Lukhee Kanto DassChowdhry v. Sumeeruddi Lusher 13 B.L.R. 243 : 21 W.R. 208, which was decided bya Full Bench of this Court, in which it was held that in a suit for rent theplaintiff landlord was not entitled to have a further trial of the question,whether any, and, if so, what amount of rent is due on account of use andoccupation of the land by the defendant. The amount due in the case before us,whether for use and occupation, or for rent, is not admitted. The defendantadmits being in receipt of the collections from this hat, but he denies that hewas under any lease, and he says that he acted merely as tehsildar for theproprietors. He also denies that any money is due from him on that account. Thesuit, therefore, if tried as one for use and occupation, would raise issues ofan entirely different character from those on which the trial as a suit forrent has been held, and would necessitate a new trial of the case by the lowerCourt upon fresh evidence. See, in this connection, Eshan Chunder Singh v.Shama Churn Bhutto (11 I.A. 7 and Narainee Dossee v. Nurrohurry MohontoMarshall 70.

5. We, therefore, feel bound to refuse to allow suchamendment of the claim. it is, we think, at all times undesirable to allow suchamendment in second appeal, when the plaintiff has in two Courts nevercontemplated it, and has even gone so far as to persistently maintain his caseas originally brought.

6. The appeal is, therefore, dismissed with costs.

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Surendra Narain Singhvs. Bhai Lal Thakur and Ors.(09.04.1895 - CALHC)