1. The dispute in both the cases giving rise to these appeals relates to a common property. It consists of two holdings bearing Nos. 48 and 60 within the jurisdiction of the present Patna Municipal Corporation. Originally both these holdings were the property of one Bandhu Mahto. Bandhu Mahto had four sons (1) Fakira Mahto, (2) Chowa Mahto, (3) Gaja Mahto and (4) Mewa Mahto. Some fifty years back before the institution of the present suits, there was a partition effected in the family of Bandhu Mahto between Fakira Mahto and Chowa Mahto on one side and Gaja Mahto and Mewa Mahto on the other. That means, as between Fakira Mahto and Chowa Mahto on one side and Gaja Mahto and Mewa Mahto on the other, there was no severance of status inter se. In the course of that partition the two holdings in suits are admitted to have fallen to the joint share of Fakira Mahto and Chowa Mahto. So far, therefore, there is no dispute between the parties. But subsequently there was a registered deed of sale executed on 24-11-1909 in respect of these holdings both by Fakira and Chowa in favour of Mewa Mahto and it is this deed of sale which is mainly responsible for the present litigation between the parties.

2. It appears that thereafter, but of course before 1931, Fakira died issueless and on his death all the properties jointly owned by Fakira and Chowa came exclusively to the latter by survivorship. According to Chowa and his son Naubat Lal, the aforesaid deed of sale dated 24-11-1909 was a sham and farzi transaction and, therefore, it did not convey and tide to Mewa. In the meantime, Mewa died sometime before 1928 leaving behind him his sole surviving son Ramnarain as his heir and successor. This Ramnarain was married to Bhagwatia to whom he had, on the death of his father, sold these holdings in suit under a registered deed of sale dated 18-12-1928.

3. Therefore, in 1931 there was a suit brought by Chowa and his son Naubat Lal both against Ramnarain and his wife Bhagwatia for a declaration that the aforesaid deed of sale dated 24-11-1909 was a sham and farzi transaction and that the same did not convey any title to Mewa Mahto or to his heir and successor. Therein there was also a prayer made for recovery of possession. It was numbered as Title Suit No. 15 of 1931. The trial court on contest dismissed that suit on 24-4-1933. In the meantime Chowa Mahto died. Therefore, against that judgment there was an appeal taken by Naubat Lal alone which was numbered as Title Appeal No. 77 of 1933. While that appeal was still pending for disposal, there was, according to Naubat Lal, a compromise arrived at between all the parties and in support thereof a petition was also filed on behalf of all of them on 27-10-1933. Accordingly thereafter on 13-11-1933 the appeal was disposed of in terms of the compromise petition and the suit which was originally dismissed at the trial was thereafter decreed.

4. In the meantime during the pendancy of this litigation, a number of transfers had already been effected in respect of these two holdings firstly by Bhagwatia and thereafter on her death by Ramnarain as her heir and successor. The first transaction made by Bhagwatia was on 21-4-1932. It was a simple mortgage in favour of on Antu Singh. Thereafter on 1-4-1933 she executed a rehan deed in favour of one Ramautar and thereunder the previous mortgage under the document dated 21-4-1932 was satisfied. Subsequently Ramautar on 16-2-1936 assigned this rehan deed to one Khadera Hajam. These transactions were, however, obviously hit by the rule of lis pendens. Therefore, if the aforesaid deed of sale dated 24-11-1909 was a sham and farzi transaction and did not convey any title to Mewa Mahto, as was ultimately held by the compromise decree given in the aforesaid Title Appeal No. 77 of 1933, neither the predessor-in-interest of Ramnarayan nor the transferees under the aforesaid mortgage document dated 21-4-1932 and the rehan deed dated 1-4-193B got any tide in the holdings in suit.

5. But the case of Bamnarayan seems to be that his wife Mosst. Bhagwatia was not a party to the aforesaid compromise embodied in the petition dated 13-11-1933 and she did not sign the petition. As such, the decree passed in the aforesaid Title Appeal No. 77 of 1933 was not binding on he and, therefore, the tide which was vested in her of the basis of the aforesaid deeds of sale dated 2-4-11-1909 and 18-12-1928 was not affected by that compromise decree. Accordingly on her death which was effected some time in 1957, her the in the two holdings was rightly inherited by him as her husband as she died issueless. Thereafter on 21-8-1958, it appears, he sold that tide which then consisted of bare equity of redemption to one Nandlal.

6. On the basis of these facts, therefore, now two suits have been instituted, one by Nandlal the transferee under the deed of sale dated 21-8-1958, which has been numbered as Title Suit No. 254 of 1958, and the other by Naubat Lal, which; has been numbered as Title Suit No. 225 of 1958. In Title Suit No. 254 of 1958 brought by Nandlal, the persons impleaded as defendants are (1) Khadera Hajam, (2) Ramautar and (3) Ramnarayan while; the persons Impleaded as defendants to Title Suit No. 225 of 1958 brought by Naubat Lal are (1) Nandlal, the plaintiff of Tide Suit No. 254 of 1958, (2) Ramnarayan Lal, (3) Ramautar and (4) Khadera Hajam. By then, however, as is obvious from the facts stated above, Ramnarayan and Ramautar had ceased to have any interest in the holdings in suit. Therefore, the controversy in these two suits was substantially left confined to three persons (1) Naubatlal, the plaintiff of Tide Suit No. 225 of 1958 (2) Nandlal, the plaintiff of Title Suit No. 254 of 1958, and (3) one common defendant of these two suits, namely, Khadera Hajam.

7. The main interest claimed by Khadera Hajam, as is evident from his document dated 16-2-1936, is that of a mortgage originally created by the document dated 1-4-1933. As against that the interest claimed by Naubatlal is that of an owner not subject to any incumbrance while that claimed by Nandlal is that of a holder of the equity of redemption in respect of these two holdings. Therefore, originally Tide Suit No. 225 of 1958 brought by Naubatlal was for bare declaration of title and confirmation of possession, or, in the alternative, for recovery of possession. Subsequently, however, at the appellate stage the plaint of that title suit was got amended and thereby an alternative relief was also added thereto which was in these terms:

“Or in any event the plaintiff may be declared by the Court to be a mortgagor in respect of the said property vis-a-vis the defendant No. 4 (Khadera Hajam) and a decree for redemption be passed in favour of the plaintiff against the defendant No. 4 (Khadera Hajam) according to law.”

8. As against that the relief sought in the other Tide Suit No. 254 of 1958 brought by Nandlal Mahto, who has been impleaded as defendant No. 1 in Title Suit No. 225 of 1958, was only one, namely, the redemption of the mortgage dated 1-4-1933 which was thereafter on 16-2-1936 assigned to Khadera Hajam. Both these suits have been made analogous and all along tried together.

9. Now in the light of the aforesaid facts the main questions that arose for consideration in these two suits at the trial were two:—

(1) Whether Mosst. Bhagwatia was a party to the compromise as embodied in the compromise petition dated 13-11-1933 and effected in the aforesaid Tide Appeal No. 77 of 1933 and as such whether the decree passed therein was binding on her as also on her husband Ramnarayan as her heir aid successor. In other words, whether thereby the tide of Naubatlal, as claimed by him therein was validly affirmed as against all the parties thereto.

(2) Whether there was any mortgage existing in favour of Khadera Hajam in respect of the two holdings on the dates the two suits were brought in Court.

10. The trial Court on hearing the parties came to the following main conclusions:

(1) that the compromise petition (Ex. 2) is a genuine document and that there was a compromise as a matter of fact, and a compromise decree was prepared in the appellate stage and that Naubat got valid title to the holding in question on the basis of that compromise.”

(2) that “the compromise decree though valid, was never acted upon and Naubat never came in possession of the house in suit on the basis of that decree and that hence he has lost his title, if any, and he has got no right now to seek a declaration of the same and to get possession of the suit house.”

(3) that “Khadera Hajam still continues to be a mortgagee under Ram Narayan and, therefore, under his transferee.”

11. Accordingly the trial Court decreed Title Suit No. 254 of 1958, brought by Nandlal Mahto and dismissed Title Suit No. 225 of 1958 brought by Naubat Lal. Against that decree there were two title appeals bearing No. 203 of 1960 and No. 277 of 1960 filed by Naubat Lal and Khadera Hajam, respectively, one against the decree passed in Title Suit No. 225 of 1958 and the other against the decree passed in Title Suit No. 254 of 1958. The lower appellate Court on the question of the validity of the aforesaid compromise has affirmed the finding of the trial Court and has held that—

“…. the compromise petition (Ex. 2) is a legal, valid and genuine document having been signed both by Ramnarain and Bhagwatia, that there was in fact a compromise as a result of which the said compromise petition had been filed in Title Appeal and that the compromise decree (Ex. 7) is legally operative and binding upon the parties.”

12. But on the question of subsisting title as claimed by Naubatlal, it has reversed the finding of the trial Court and has held that—

“Khadera Hajam must have come in possession with the permission of Naubatlal obviously as a tenant under him as is the distinct case of Naubatlal on the point. This circumstance, therefore, speaks volumes in favour of Naubat Lal in regard to the manner and nature of possession of Khadera Hajam over the suit house.”

13. Thus the claim of Naubatlal as to both title and recovery of possession has been allowed by the lower appellate Court but it has been made subject to the mortgage interest of Khadera Hajam.

14. As to the mortgage interest of Khadera Hajam, the exact finding given by it is in these words:

“….the mortgage bond (Ex. B/1) executed by Mosst. Bhagwatia in favour of Ramautar on 1-4-1933 as also the subsequent deed of assignment of the same (Ex. B/2) by Ramautar in favour of Khadera Hajam are neither illegal nor void instruments and all that can be said in their regard is that they are voidable transactions capable of being avoided or ignored by Naubatlal alone who had obviously been affected by such transfers….”

“Taking, therefore, the worst view of the case and the most favourable in favour of Khadera Hajam, all that can be said is that Khadera Hajam has been in possession of the suit holding by asserting himself to be an assignee mortgagee thereof since 1936 and in that view of the matter Khadera Hajam cannot be said to have acquired by the law of prescription any other title to the suit holding except that of mortgagee and that the same acquisition of title by prescription shall be against nobody else than the rightful paramount tide holder, namely, Naubatlal….”

“Naubatlal would thus seem to be perfectly entitled to get a decree for redemption of the said mortgage, namely, the transactions evidenced by Exs. B/1 and B/2.”

15. Accordingly the lower appellate Court has substantially reversed the judgment of the trial Court. In other words, it has dismissed Title Suit No. 254 of 1958 brought by Nandlal Mahto and has decreed Title Suit No. 225 of 1958 brought by Naubatlal. Therefore, now these two second appeals bearing Nos. 471 of 1962 and 423 of 1962 have been both brought by Nandlal Mahto, the former against the decree passed in Title Appeal No. 217 of 1960 and the latter against the decree passed in Title Appeal No. 203 of 1960.

16. In other words, now there is no appeal filed in this Court by Khadera Hajam Thus the controversy now is substantially left confined only to the conflicting claims of Nandlal Mahto on one side and that of Naubatlal on the other as to their respective claims about the equity of redemption.

17. Before, however, I proceed to take up these two second appeals, I may state here one more ancillary fact as the same has been referred to in the course of argument with certain amount of stress by Mr. Chatterji appearing in this Court for the appellant Nandlal Mahto. It appears that there was certain decree obtained by one Dhanulal against Naubatlal and that decree was put in execution in Execution Case No. 1544 of 1936. In the course of that execution, it seems, the holding or holdings in dispute were got attached by the decree-holder Dhanulal. Against that attachment there was a claim case filed under O. 21, R. 58 of the Code of Civil Procedure by Khadera Hajam which was numbered as Miscellaneous Case No. 146 of 1937. The executing Court on hearing the parties allowed that application by the order dated 11-1-1938 and set aside the order of attachment as prayed for by Khadera Hajam. Against that order of the claim case there was a title suit brought by Dhanulal both against judgment-debtor Naubatlal and the claimant Khadera Hajam. It was numbered as Title Suit No. 247 of 1938. This part of the case has been referred to by the Court below in paragraph 14 of the judgment under appeal. The relevant portion of that paragraph is in these words:

“It, therefore, appears to me that the contest put up by Khadera in the S.C.C execution case was at the instance of Naubat himself who tried to somehow or other save the property from being sold in execution of the said decree but it appears that when the decree-holder pursued the matter further by instituting a regular title suit against the order passed in the Misc. Case, Naubatlal realised the weakness and that is why a compromise seems to have been arrived at, only that the payment of the decretal dues was made by Khadera Hajam himself.”

18. Thus, it appears that ultimately the aforesaid Execution Case No. 1544 of 1936 was struck off on satisfaction.

19. Now for the present I leave this matter here and come back to the two appeals pending before me. Mr. K.D Chatterji in support of these two appeals has advanced four contentions:

(1) that the Court below has wrongly found that Mosst. Bhagwatia was a party to the compromise effected in Title Appeal No. 77 of 1933 and as such the decree passed therein was binding both on her as also on her husband Ramnarayan;

(2) that the Court below has erred in law in holding that on the facts of this case the acquisition of title by prescription by Khadera Hajam “shall be against nobody else than the rightful paramount title holder, namely, Naubatlal”;

(3) that the Court below has erred in law in allowing the amendment of the plaint of Title Suit No. 225 of 1958 brought by Naubatlal, thereby permitting him to add the aforesaid alternative reliefs; and

(4) that the Court below should have held that the order passed in the aforesaid Miscellaneous Case No. 146 of 1937 has the effect of operating as res judicata in the present litigation on the question of title as against Naubatlal.

20. The first point raised by Mr. Chatterji relates to the binding effect of the compromise decree passed in the aforesaid Title Appeal No. 77 of 1933. The main submission made by Mr. Chatterji in this connection is that there was no execution made on the aforesaid compromise petition dated 13-11-1933 by Mosst. Bhagwatia and that her husband Ramnarayan had no authority to endorse that compromise petition on her behalf. Therefore, that compromise petition as also the decree passed on its basis had no binding effect on her nor after her death on her husband Ramnarayan as her heir and successor.

21. In support of this contention reliance has been placed by learned counsel on the decisions in Sheonandan Prasad Singh v. Abdul Fateh Mohammad Reza, ILR 14 Pat 545 : (AIR 1935 PC 119) and Umed Singh v. Mt. Bhoori, AIR 1931 Lah 628. The former deals with the question of implied authority of an advocate in the matter of making compromise in a case and the latter deals with the rule of construction as to a compromise which gives rise to a decree. In ILR 14 Pat 545 : (AIR 1935 PC 119) their Lordships of the Privy Council dealing with the question of implied authority of an advocate in the matter of making compromise in any case has observed as follows:

“At the hearing of this application it seems to have been agreed that the case should be determined by reference only to the implied authority of the advocate to make the compromise. In the petition for leave to appeal to His Majesty in Council it is stated that counsel for the mortgagee gave up the actual authority of the karpardaz to effect the compromise; but whether this is so or not it seems plain that the case should proceed on the footing that no actual authority in the karpardaz was established. On his footing their Lordships have no difficulty in coming to the conclusion that the compromise cannot be supported by reference only to the implied authority of the advocates. As was laid down by tills Board in Sourendra Nath Mitra v. Tarubala Dasi, 57 Ind App 133 : (AIR 1930 PC 158), counsel in India have the same implied authority to compromise an action as have counsel in the English Courts. But if such authority is invoked to support an agreement of compromise the circumstances must be carefully examined. In the, first instance the authority is an actual authority implied from the employment as counsel. It may, however, be withdrawn or limited by the client in such a case the actual authority is destroyed or restricted; and the other party if in ignorance of the limitation could only rely upon ostensible authority. In this particular class of contract, however, the possibility of successfully alleging ostensible authority has been much restricted by the authorities, such as, Ncale v. Gordon Lannox, (1902) AC 465 and Shepherd v. Robinson, (1919) 1 KB 474, which make it plain that if in fact counsel has had his authority withdrawn or restricted the Courts will not, feel bound to enforce a compromise made by him contrary to the restriction even though the lack of actual authority is not known to the other party.”

22. Now it is true that in the present cases the trial Court did observe that—

“On evidence it is not proved beyond doubt that Bhagwatia had filed a power in favour of Kamla Singh in the appellate stage.”

23. But this observation seems to have been reversed impliedly by the lower appellate Court. Further the lower appellate Court has very much relied on the fact that though the compromise petition was not signed by Bhagwatia herself but it had the endorsement made by her husband Ramnarayan. Accordingly it has given finding in favour of the validity of the compromise on two grounds (1) that the “course of conduct of Ramnarayan goes to show that he had been signing the document on behalf of Bhagwatia. Ramnarayan admitted this fact also in his cross-examination. Hence there is no doubt that Ramnarayan was representing by his conduct, to have authority to sign for Bhagwatia and if he is shown to have done it in respect of Ex. 2, there is nothing to be surprised, and (2) that in any case it was signed at least by the advocate who appeared for Mosst. Bhagwatia in the appellate court.

24. Therefore, in my opinion, on the facts of this case, the aforesaid authority cited by Mr. Chatterji in ILR 14 Pat 545 : (AIR 1935 PC 119) has no bearing. Here, as pointed out by the court below, there was a clear authority in the husband Ramnarayan to sign the document on behalf of his wife Mosst. Bhagwatia. Then the decision in the other authority in Umed Singh v. Mt. Bhoori, AIR 1931 Lah 628 was based on the conclusion as given therein to the effect that “Mt. Bhoori was not a party to the compromise it not having been shown that she was represented by Lala Sardha Ram or that Khazan Singh her agent was authorised to compromise on her behalf.” Here the finding as come to by the court below is just the opposite. Therefore, this authority too cannot be of any avail to Mr. Chatterji on the facts of this case.

25. Further here it is the admitted case of the parties that on the basis of the compromise petition there was a decree passed by the appellate court. In that view of the matter, therefore, what has now really to be scrutinised on the facts of this case is whether that decree was obtained by fraud or deception, or, in other words, whether the compromise which was the basis of the decree passed therein was obtained by fraud or deception and at the back of Mosst. Bhagwatia. Now Order 23 Rule 3 of the Code of Civil Procedure, which lays down procedure for effecting compromise in a pending suit, inter alia, provides that—

“Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise…. the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit.”

26. That being so, under section 114 of the Evidence Act the presumption is that at the time when the compromise decree was passed, the court was satisfied that a valid compromise was arrived at therein between all the parties thereto. As such, the onus was on Nandlal Mahto to prove that the fact was otherwise or that the compromise was arrived at fraudulently and at the back of Mosst. Bhagwatia. Unfortunately there is in these cases no allegation of fraud made on behalf of Nandlal Mahto nor there is any finding to that effect.

27. On the contrary, there is evidence given on behalf of Naubatlal in support of his case that it was done with the full knowledge and consent of her husband Ramnarayan and that he had in proof thereof put his signature on it. In normal course, therefore, if there was any fraud made by Ramnarayan against his wife, there should have been at least an allegation made to that effect in the plaint of Nandlal Mahto and if there was no fraud played by Ramnarayan then in due course the factum of compromise must have been conveyed by him to his wife Bhagwatia.

28. In view of these facts and circumstances, therefore, it is difficult to accept the contention of Mr. Chatterji that Mosst. Bhagwatia was not a party to the compromise or that she had no knowledge about it or that there was any fraud played against her. In my opinion, therefore, the court below has rightly disposed of this point in favour of Naubatlal. In support of this view, reference, I think, has been rightly made on behalf of Naubatlal to the decisions in Gadadhar Dhir Samanta v. Rani Labanyabati Dei, 202 Ind Cas 373 (PC) and Surjughsharan Lal v. Dukhit Mahto, 17 Cal WN 496. They fully lend support to the view just come to by me.

29. The second submission made by Mr. Chatterji relates to the claim made by Nandlal Mahto that the title, if any, that Naubatlal had got as a result of the decree passed on the basis of the compromise petition was subsequently lost by reason of the fact that decree was never given effect to with the result that Naubatlal even after that decree never got possession of these holdings either directly or constructively. In support of this contention reliance has been placed by Mr. Chatterji mainly on the circumstance that the claim made by Naubatlal to the effect that Khadera Hajam originally entered into the land as his tenant does not seem to have been accepted by the lower appellate court inasmuch as the decree, which it has ultimately given to Naubatlal is one for redemption, that is to say, on the footing that Khadera Hajam has been in possession of the holdings in dispute as a mortgagee and not a tenant.

30. Secondly in this connection my attention has also been drawn to the assertion made by Khadera Hajam in his aforesaid claim case No. 146 of 1937. It is true that in the claim case there was an assertion made by Khadera Hajam to the effect that he was a mortgagee under Mosst. Bhagwatia and not Naubatlal. But in my opinion, either this fact that there was an assertion made by Khadera Hajam in the aforesaid Miscellaneous Case No. 146 of 1937 that he was in possession of the property as a mortgagee and not as a tenant or the fact that the decree ultimately given to Naubatlal by the lower appellate court is one for redemption against Khadera Hajam cannot by itself negative the claim of Naubatlal, as found even by the court below, that originally long before his document dated 16-2-1936, whereby the mortgage dated 1-4-1933 was assigned to him Khadera Hajam had already entered on the land as his tenant. According to Naubatlal, the entry of Khadera Hajam on the holdings as a tenant was made long before 1936 and the claim that he made about his possession as a mortgagee was raised for the first time in the year 1936 when it is said his name was entered in the Municipality as such. Now the court below has accepted this claim of Naubatlal that Khadera Hajam originally entered on the land as a tenant of Naubatlal long before 1936. Therefore, any subsequent assertion by him as a mortgagee of Bhagwatia will not be any evidence of possession of Mosst. Bhagwatia adverse to that of Naubatlal.

31. Thirdly, the right, if any, which Khadera Hajam prescribed as a result of his adverse claim was one in his own favour as a mortgagee. No amount of assertion by Khadera Hajam in favour of his adverse claim could enure to the benefit of Nandlal in the matter of his securing any adverse title therein as mortgagor. It is conceded even by Mr. Chatterji that there is no other material on the record to prove that Nandlal Mahto at any point of time since the aforesaid compromise effected on 13-11-1933, claimed or asserted in respect of this property any title, hostile or adverse, to that of the true owner. In my opinion, therefore, the finding given by the lower appellate court against Nandlal on the question of adverse title as claimed by him cannot be held to have been arrived at by the court below either wrongly or illegally.

32. The third submission made by Mr. Chatterji is that the court below has erred in law in allowing the amendment of the plaint of Naubatlal. In support of this contention reliance has been placed by learned counsel on the decisions in Kameshwar Prasad Singh… v. Meghan Garain & Others…, AIR 1951 Pat 137 (FB), Ma Shwe Mya v. Maung Mo Hnaung, 48 Ind App 214 : (AIR 1922 PC 249); Jagdish Pandey v. Rameshwar Chaubev, AIR 1960 Pat 54; Munna Lal v. Maiku Lal, AIR 1914 All 484 and Dilawar Hussain v. Subhan Khan, AIR 1931 Oudh 375. In my opinion, none of these authorities has any bearing on the facts of these cases. The true rule as to amendment of pleadings is, if I may say so with all respect, correctly laid down in Subbiah Nadar v. Champaka Pillai, AIR 1961 Mad 413 which is in its own turn based on the decision of the Privy Council in AIR 1922 PC 249. Therein Ramchandra Iyer, J., as stated in the placitum, has observed:

“Under O. 6, R. 17, a court can allow all such amendments as might be necessary for the purpose of determining the real question in controversy between the parties. The question is whether the cause of action has been changed by a proposed amendment and whether the subject matter of the suit has been changed. In such a case what one should see is not whether the suit of one character has been changed into one of another character, but whether the cause of action and the subject matter of the suit would be changed by the amendment if allowed.

33. Where the cause of action was the same both ??? the prayer for ejectment as well as for that for redemption and the subject matter also was the same.

34. Held that the conversion of the suit in ejectment into one for redemption by amendment of plaint could be allowed.”

35. In the present case it is not disputed that there is no variation made either in the cause of action or the subject-matter of the suit as a result of the amendment of the plaint which was allowed by the court below. Further, I think, in view of what has been pleaded in defence by Khadera Hajam himself and in view of the finding given by the court below to the effect that he has acquired in these holdings the right of a mortgagee by adverse possession, there was nothing illegal on the part of the court below to allow the amendment relating to the alternative relief as sought therein. The legality of the order also gets full support from what has been expressed by their Lordships of the Supreme Court in Firm Sriniwas Ram Kumar v. Mahabir Prasad, AIR 1951 SC 177. Therein as is stated in the placitum, it has been observed that

“A plaintiff may rely upon different rights alternatively and there is nothing in the Code of Civil Procedure to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the Ct. to give him relief on that basis. The rule undoubtedly is that the Ct. cannot grant relief to the pltf. on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing impeder in giving the plaintiff a decree upon the case which the defendant himself makes. A demand; of the plaintiff based on the defendants own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant it may not be proper to drive the plaintiff to a separate suit.”

36. Lastly, it may be pointed out here that the person who alone could validly raise any grievance against this amendment was Khadera Hajam, who, if at all, was adversely affected thereby. But Khadera; Hajam has not come in appeal to this Court. In that view of the matter also, therefore, now there is no scope for any point being raised against it on behalf of Nandlal Mahto. In my opinion, therefore, there was no illegality committed by the court below in allowing the amendment of the plaint as prayed for by Naubatlal.

37. Lastly, it has been submitted by Mr. Chatterji that the decision given in the aforesaid Miscellaneous Case No. 146 of 1937 operates now as res judicata against Naubatial on the question of title and in support of this contention reliance has been placed by learned counsel on the decision in Sm. Rupai Devi v. Bamdeb Das*, 1953 BLJR 5 : (AIR 1953 Pat 199). I think there is no substahce in this contention too. It is well established in law that as a rule there is no res judicata between co-defendants unless it is found that the point involving res judicata has to be necessarily decided in that suit between them.

38. In the aforesaid Miscellaneous Case No. 146 of 1937 Khadera Hajam alone was the claimant against the attachment made in respect of the two holdings in suit. No doubt Naubatlal was also impleaded therein as a judgment-debtor but he never participated in that proceeding. Secondly Khadera Hajam was in no sense in that proceedings contesting the claim of the decree-holder as the representative of Nandlal; on the contrary, all the assertions that he made therein were advanced on his behalf with a view to protect his own interest though it is a different matter that in the course of that assertion there was also a statement made that his mortgagor was Nandlal may it be either at the instance of Nandlal or at the instance of the judgment-debtor himself. But that by itself, even if it was at the instance of Nandlal can be no proof of any adverse title of Nandlal as a mortgagor.

39. Lastly it has to be noted that after all the objection that was raised therein was not stuck to by Khadera Hajam up to the end but was ultimately given up in the tide suit that followed the miscellaneous proceedings and the same was thereafter disposed of on full satisfaction of the decree in terms of the compromise arrived at therein. That being so, there is now on merit no adjudication left on the record as to the correctness or otherwise of the assertion made therein by Khadera Hajam that his mortgagor was Nandlal. Therefore, this last contention made on behalf of the appellant has also to be rejected. For these reasons, I hold that the appeal is without substance. It is accordingly dismissed but in the circumstances of the case there will be no order for costs.

LH/HGP/D.V.C

40. Appeal dismissed.