JUDGMENT
Tottenham, J.
1. This was a suit to recover possession of land, of which the plaintiff alleged himself to have been dispossessed by the defendant. The title he set up in his plaint was that this was lakhiraj lane which he had purchased from one Deno Bhundoo Poramanick. The defendant denied the plaintiif’s title altogether.
2. The lower appellate Court found that, although the plaintiff’s lakhiraj title was not established, it was proved that he had purchased the land as lakhiraj from his alleged vendor; and the Subordinate Judge held that the possession of the plaintiff and of his vendor together extended to twelve years or more; and that that possession was adverse to the defendant. He was therefore of opinion that the plaintiff had established a title by adverse possession and was entitled to recover the land.
3. On second appeal Baboo Guru Dass Banerjee, for the defendant-appellant before us, raised the question whether the plaintiff was entitled ho succeed upon a title of adverse possession when he had not set up that title in his plaint and when no issue had been laid down in respect of it in the first Court. The petition of second appeal does not specifically raise this que3tion, but one of the grounds taken in that petition was that inasmuch as the plaintiff failed to prove the lakhiraj title set up by him, his suit ought to have been dismissed. We have allowed the appellant therefore to deduce from that ground of appeal the contention which Baboo Guru Dass Banerjee has urged. In support of his contention he has cited the cases of Bijoya Debia v. Bydonath Deb 24 W.R. 444, Shiro Kumari Debi v. Govind Shaw Tanti 2 C. 418 and Joytara Dassee v. Mahomed Mobaruck 8 C. 975. Those cases support the view that the plaintiff cannot succeed upon a title which he has not set up; but there is a distinction between two of those cases and the present case. In those two cases the suit was for a declaration of title, and the Court there very properly held that, unless the plaintiff proved the title in respect of which ha asked for a declaration, he could not obtain such declaration. The present case is not for a declaration of title, but for possession upon proof that the plaintiff is entitled to have the lard. The eases which have been cited by Baboo Karuna Sindhu Mukerjee for the respondent support the view that the plaintiff may succeed in obtaining possession on proof of a good title, though that title be not specifically set up. The most that 1 should have been inclined to do in the present case would be to order a remand if I thought that the defendant-appellant had been prejudiced or taken by surprise in this matter. But I find that, having lost his case in the first Court by reason of his having failed to prove his lakhiraj title, and by reason of his not being, in the opinion of the Munsif, entitled to a decree on the ground of adverse possession for twelve years because no issue on this point had been raised, the plaintiff, on appeal to the Subordinate Judge, distinctly raised the question and so gave notice to the defendan that he intended to rely upon his title by adverse possession. Had the defendant considered himself prejudiced in this respect he could then have applied to the lower appellate Court for an opportunity to go into evidence on the point ; but be did not do so, and the case was apparently argued out from that point of view and terminated in a decree in favour of the plaintiff. Then, as has been observed, no specific objection was taken in the petition of second appeal to the trial of this issue in the lower appellate Court. I think, there-fore, it cannot be said that the defendant has really been prejudiced by the course adopted in the lower appellate Court. And being of opinion that the Subordinate Judge was entitled, upon finding facts which established the plaintiff’s title, to give him a decree, I do not think that we ought to interfere in this Court.
4. The appeal is dismissed with costs.
Norris, J.
5. I should like to add just a word. This was an action of ejectment. The plaintiff based his title upon the allegation that the land which he sought to recover was his lakhiraj land. It is not quite clear, but I take it that he failed to prove that title. In the progress of the case, however, he proved a title which entitled him to a decree for ejectment.
6. It is urged that he ought not to be allowed to obtain a decree upon the strength of a title, which, though he has proved, he did not, as a matter of fact, set up in his plaint; and in support of that contention Dr. Guru Dase Banerjee has cited three cases. Two of those cases, as pointed out by my learned colleague, are clearly distinguishable from the present case. The cases of Bijoya Debia v. Bydonath Deb 24 W.R. 444 and Shiro Kurnari Debt v. Govind Shaw Tanti 2 C. 418 were cases where the suit was for a declaratory decree. It is plain, it is common sense, that a man ought not to be allowed to obtain a declaratory decree except in respect of the very title which he asserts and upon which he goes to trial. The case of Joytara Dassee v. Mahomed Mobaruck 8 C. 975 is no doubt at first sight an authority in Dr. Guru Dass Banerjee’s favour. But I think, when one comes to examine it, it is really not at all antagonistic to the view which we are prepared to take in the present case. That was a case on appeal from an original decree in which the plaintiff had succeeded, and a decree had been given him in the first Court upon the strength of a title which he had not set up; and Mr. Justice Field, who delivered the judgment of the Court, says: “Cases must be tried and determined secundum allegata et probata, and it is contrary to this principle, and may be fraught with injustice, to decide a cause upon a point not raised in the pleadings nor embodied in an issue, and to which in consequence the attention of the parties was not directed at the trial so as to enable them to produce all the evidence relevant thereto, which was available to them.” In the present case the plaintiff’s suit was dismissed in the first Court. He appealed, and in his grounds of appeal to the lower appellate Court he distinctly gave notice to the other side that he would rely upon a title which had been proved in the course of the trial, namely, a title by adverse possession. It was open then to the defendant either to say “I object to this point being taken because it was not raised in the pleadings” or, “if this point is gone into, I ought to have an opportunity of adducing evidence with regard to it.” If that opportunity had been asked and denied I should unhesitatingly have been inclined to remand this case ; but that opportunity was not sought by the defendant, and I cannot therefore bring myself to think that he has been at all damnified or that his rights have been prejudicially interfered with, by the course adopted by the lower appellate Court.
7. Upon this ground I agree in dismissing the appeal with costs.
