Mullick, J.:— The question in this case is whether an order made by the Subordinate Judge of Bhagatput on the 28th July, 1927 is to be set aside.

2. The plaintiffs are the sons of Rani Padmabati, the widow of Raja Padmanand Singh of Benaili. This lady executed a Will on the 24th September, 1908 of which probate was granted by the High Court of Calcutta to defendant No. 1, Babu Jagarnath Prasad, and to certain other persons. The plaintiffs admit that claiming under a truat declared by the Will and also a trust deed executed on the 19th April, 1912, the first party defendants have taken possession of the entire properties left by the Rani and they bring the present suit for a declaration that the Rani had no disposing power-over the properties in question and that no trust deed was executed and they pray for recovery of possession with mesne profits and in the alternative for the construction of the Will and the trust deed and for the rendition of accounts, the removal of the trustees for misappropriation and for the appointment of new trustees.

3. The first 12 issues relate to the title of the plaintiffs and their right to recover possession and they are admittedly quite distinct and based on a different cause of action from issue No. 13 which ran as follows:—

“Are the trustees or any of them liable to removal for misappropriation and misconduct?” On the 28th July, 1924 the Subordinate Judge decided to try issues Nos. 1 to 11 first. Issue No. 12 concerna mesne profits and admittedly it cannot be conveniently tried till after the decision of issues Nos. 1 to 11; but with regard to issue No. 13, which arises out of an altogether different cause of action, namely, breach of trust and is based on facts wholly inconsistent with those material to issues Nos. 1 to 11, it is contended that the plaintiffs should not be allowed to proceed to trial and that they should be called upon to elect so that the defendant may know what case he has to meet.

4. It is true that a plaintiff may join as many causes of action as he pleases subject to (1) the provisions of O. 2, r. 4 of the CPC and (2) the general rule that though he may base his claim on alternative and even inconsistent titles, he should not in any event be allowed to claim on alternative titles which arise out of inconsistent facts. Although the Judicature Act in England has widened the rules of pleading and now enables parties to claim relief in the alternative upon setting out inconsistent facts, the trend of judicial decisions in India seems to limit the scope of the Code and to forbid a plaintiff, certainly where the facts are presumably within his knowledge, to plead inconsistent facts and to require him to elect, so that the defendant may know what cause he has to meet; and similarly a defendant may mot plead inconsistent facts unless he is;a stranger to the transaction and the true state of facts is not within his personal knowledge. So it has been held by the Judicial Committee of the Privy Council in Makomad Buksh Khan v. Hossaini Bibi(1) that a plaintiff could not be allowed to plead that a hibanama was forgery and also at the same time that it was executed under undue influence. In Iyyappa v. Ramalakshmamma(2) their Lordships of the Madras High Court held that it was not open to a plaintiff to plead that a deed of sale was a forgery and at the same time that it was void for want of consideration. So again in Ningappa v. Shivappa(3) the Bombay High Court held that inconsistent assertions of fact cannot be permitted in pleadings but on the same casis of facts two distinct titles may be put forth. On the other hand, a dissenting note was struck in Jino v. Manon(4) where the decision of the Privy Council in Mahomad Buksh Khan's case was sought to be distinguished and it was held that a plea that a bond was a forgery could be joined with a plea that it was null and void for want of actual consideration. But in Abdul Ali Abdul Hussain v. Miakhan Abdul Hussain(5) the earlier view was re-asserted and it was held that a Muhammadan plaintiff could not be allowed to plead that he was entitled to the property in suit as heir of his father to the exclusion of his mother and also at the same time that he had inherited it from his daughter who had acquired a good title from his mother. I think, therefore, that the Subordinate Judge would have been well advised in this case not to have allowed a joinder of causes of action.

5. But the defendants not having taken any steps to move higher authority to have issue no is struck out, what is the Subordinate Judge's proper course now?

6. It is contended that by deciding to postpone the trial of issue No. 13 till the other issues have been finally decided, the Subordinate Judge subjects the plaintiffs to the risk of losing valuable testimony which it is highly desirable to perpetuate. It is suggested that the final disposal of the other issues may take 7 or 8 years and that by that time the trustees and material witnesses may be dead and much of the evidence of breach of trust may disappear. It is argued that when a Court postpones the trial of an issue indefinitely it is committing material irregularity in the exercise of jurisdiction and therefore Section 115 of the CPC, applies.

7. It is also contended that as there is likely to be a substantial denial of the right of fair trial Section 107 of the Government of India Act also applies.

8. I doubt whether S. 115 applies to the case, for the Court was competent to exercise his own discretion as to the order in which he would take up the issues and if he was satisfied that issue No. 13 would embarrass the trial of the other issues, he had jurisdiction to postpone its trial.

9. But I think that if the effect of his order is an almost certain loss of material evidence, then the apprehension of a denial of the right of fair trial arises and we are competent to interfere in the exercise of our powers of superintendence.

10. The Court is competent to postpone the trial of issues of fact if the case can be decided on issues of law only. But there is no authority under the Code for postponing the trial of an issue of fact except on the ground of embarrassment. As already stated above, the issue should not have been allowed to be raised and there is reason for fearing that the trial will be greatly prolonged, if the facts as to the alleged breach of trust are investigated and accounts are to be taken; and it is pointed out by the defendants that the plaintiffs have waited nearly 12 years since the death of the Rani to bring this suit and that the trustees have been in possession without any objection during this period. In my opinion these objections come too late. Having regard to the time which has elapsed since the issues were framed, I think it is now too late to put the parties into the position which they would have been occupying if the Subordinate Judge had taken the proper course in the first instance by refusing to frame the issues. As the defendants have in effect assented to the trial of the issue, I think the Subordinate Judge must try it as soon as the trial of issues Nos. 1 to 11 has been concluded by him.

11. I would, therefore, allow the application with costs, hearing fee three gold mohurs.

12. Ross, J.:— The plaintiffs claimed recovery of land with mesne profits from the defendants on the allegation that they were the heirs of the last owner who had no power to dispose of the property by Will or deed and that the deed of trust said to have been executed by her was invalid. In the alternative they prayed that if the trust was good the trustees should reader accounts and should be removed for breach of trust.

13. Sixteen issues were framed, of which the thirteenth issue was: Are the trustees or any of them liable to removal for misappropriation and misconduct? On the application of the defendants, the trustees, the learned Subordinate Judge has ordered that the thirteenth issue should be tried after the other issues have been disposed of. From the tenor of his order it would appear that the intention is that a separate judgment; should be delivered on the other issue and that the trial of the thirteenth issue should be postponed until the earlier issues have been decided, if necessary, on appeal. In making this order the learned Subordinate Judge relies upon Or. 2, r. 6 of the CPC and his order is virtually an order of the separate trial of the thirteenth issue.

14. Now Cr. 14, r. 2 of the Code gives the Court power, where issues both of law and of fact arise in the same suit, to postpone the settlement of the issues of fact until after the issues of law have been determined, if the Court is of opinion that the case or any part of it may be disposed of on the issues of law first. There is no such power to separate the issues of fact. The plaintiff may rely on several different rights alternatively though they may be inconsistent. Or. 2, r. 4 requires the with certain exceptions, the leave of the Court should be given for joinder of other causes of action with a suit for recovery of immovable property. Assuming that the present case does not fall within these exceptions and that the leave of the Court was required and had not been obtained, yet I think that was a mere irregularity which can be waived and must be taken to have been waived in the present case by reason of r. 7 of Or. 2. This view was taken by the Court of Appeal in Lloyd v. Great Western Dairies Company(6) where Fletcher Moulton, L.J, said: “The effect of Or. 18, r. 2, which cores ponds to Or. 2, r. 4 of the CPC is that no cause of action, with certain strictly limited exceptions, can be joined with an action for the recovery of land, unless by leave of the Court or a Judge. This provision appears to have been made for the protection of defendants, and a defendant can therefore, by his conduct waive the performance of the condition because it is a condition imposed for his benefit. In the present case it is not contested that the acquiescence in the proceedings for some months by the defendants would amount to a waiver, if it were possible for them to waive the objection. I am of opinion that it was possible to waive the objections, and that the defendants did do so.” This initial irregularity has therefore ceased to have any effect and the case must be treated as if it was a case in which leave to join these causes of action had been given. It is therefore unreasonable and indeed illegal that the trial of one of the causes of action should be postponed indefinitely. A plaintiff is entitled to a trial of the issues of fact which he raises, and the Court has no authority to refuse to try these issues if the suit is properly framed and in any case, the consideration that if the litigation arising out of the earlier issue is prolonged by appeal, as it must be, the plaintiffs as well as the defendants will lose testimony which is now available for the decision of the thirteenth issue, must be decisive. I, therefore, agree that this application should be allowed with costs.

15. Application allowed.