Full Judgment
Srinivasa Aiyangar, J.
1. The only point taken by the learned vakil for the appellant in this case has reference to the possibility of the plaintiff's action being regarded by the Court not as one based on title acquired by adverse possession as was sought to be done in the alternative in both the lower Courts but on a third ground altogether, namely, that the plaintiff, while being lawfully in possession of the property has been deprived of that possession by a wrongful act of defendant. I do not for a moment wish to say that such a suit may not be maintainable apart altogether from the provisions of Section 9, Specific Relief Act. No doubt, if the suit had been instituted under the provisions of that section it would not be open to the defendant to set up any question of title to the property, and all that the Court would be called upon to enquire into and decide would be whether or not the dispossession was due to a wrongful act of the defendant. But if the claim was intended to be sustained on the mere ground that the plaintiff was in lawful possession of the property and he was dispossessed of the same by the defendant committing an act of trespass, it seems to me that it is incumbent on the plaintiff to set up such a case. If no such case is set up and if the plaintiff comes into Court merely setting up title in himself either under documents of title or acquired by adverse possession, then conceivably the defendant is not bound to set up any title to the property in himself and may if he so wishes, sit tight on the mere fact of possession of the property and put the plaintiff to proof of the one or the other ,of the alternative titles set up. In such a case if the plaintiff should fail to establish either of the two alternative titles he fails and will be nonsuited.
2. If, however, a plaintiff should intend to rely on the mere fact of his having been in lawful possession of the property and allege that such lawful possession, he was deprived of by the wrongful act of the defendant, the well-understood rules of pleading would require that the plaintiff should set up such a case, because in such a case it would be open to the defendant to go further and set up or seek to set up his own superior title to the property and, if such title should be found, the Court would be bound to nonsuit the plaintiff even though, previous to the act of trespass, the plaintiff might be found to have been in lawful possession of the property; in other words, before a plaintiff in such a case could be allowed to set up a claim to relief by way of delivery of possession of the property on the mere ground of previous lawful possession of the property, he must afford an opportunity to the defendant, if so advised, to set up a title to the property superior to the one set up by the plaintiff himself. That appears to have been clearly not done in this case.
3. The learned vakil for the appellant admitted frankly that no such case was outlined in the plaint and it was he who, on perusing the records in this case thought of the possibility of the plaintiff' s case being so regarded. The point does not also appear to have been taken in either of the Courts below. If such a cause of action should be allowed to be set up, it may be--and I do not think it necessary to express any final opinion in the matter-that the Court would be required to enquire into and find as a fact whether the act by which the defendant got into possession of the property was really a wrongful act or an act of trespass because, unless it were a wrongful act, such a cause of action would not be available to the plaintiff. I am clearly of opinion that, allowing the plaintiff at this stage to set up a new case which was not referred to in the plaint or taken in either of the lower Courts would really work great injustice by reason of the defendant-respondent not having been afforded an opportunity to meet such a case or plead to it. The second appeal must, therefore, be dismissed. As the respondent does not appear, it will be dismissed without costs.