1. This is an appeal by the defendants in a suit for recovery of possession of land with mesne profits, on declaration of title thereto. The Court of first instance found against the plaintiffs and dismissed the suit. Upon appeal the Subordinate Judge has reversed that decision and decreed the suit. In the present appeal, the only substantial question of law which has been argued on behalf of the defendants is that as the interest of the plaintiffs in the property claimed was sold pendente lite in execution of a decree for arrears of rent and was purchased by the landlords, decree-holders, on the 19th November 1909, the suit should have been dismissed. The contention in substance is that a decree for recovery of possession cannot properly be made in favour of persons who,.at the time the decree is made, are found to have lost all interest in the property claimed by them. In our opinion there is no foundation for this position.
2. The rule was recognized in Radhay Koer v. Ajodhya Das . [1908] 7 C.L.J 262. that a suit must be tried in all its stages on the cause of action as it existed at the date of its commencement. This is in accord with the observation of Lord Kingsdown in Anundomoyee v. Sheeb Chunder . [1861-63] 9 M.I.A 287 that in appeal the question is, whether the decision of the primary Court is correct on the facts as they stood when the judgment was rendered and that no subsequent event or devolution of interest can affect that question, because to give effect to them, should justice require it would be the office, not of an appeal, but of some supplementary proceeding. As illustrations of the general rule, reference may be made to the cases of Govinda v. Perumdevi . [1889] 12 Mad. 136.; Ramanadan Chetti v. Pulikutti Servai . [1898] 21 Mad. 288; Wamanrao v. Rustomji . [1897] 21 Bom. 701.; and Raja of Venkatagiri v. Mokku Narasaya . [1910] 7 I.C 202. But to this ordinary rule, exceptions have been recognized on grounds fully explained in the case of Ram Ratan Sahu v. Mohant Sahu . [1907] 6 C.L.J 74. The decisions in Sakharam v. Hari Krishna8; Sangili v. Mookan . [1893] 16 Mad. 350; Ahmadjee v. Mahamadjee . [1899] 1 Bom. L.R 218.; Rustumji v. Purushotamdas . [1901] 25 Bom. 606; Balkishan v. Kishan Lal . [1889] 11 All. 148; Hazari Mull v. Janaki Prasad . [1907] 6 C.L.J 92.; Ramyad Sahu v. Bindeswari Kumar Upadhya . [1907] 6 C.L.J 102.; Udit Chobey v. Rashika Prosad Upadhya . [1907] 6 C.L.J 662.; Hedlot Khasia v. Ka-Ran Khasiani . [1912] 13 I.C 377. and Banwari Lal v. Sheo Sarikar Misser . [1909] 1 I.C 670. show that a Court may take notice of events which have happened since the institution of the suit and afford relief to the parties on the basis of the altered conditions.
3. This doctrine is of an exceptional character and is applied in cases where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate, or that it is necessary to base the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties. A similar view has been taken in. England in Quilter v. Mapleson . [1882] 9 Q.B.D 672 and Attorney-General v. Birmingham, Tame and Rea District Drainage Board . [1912] A.C 788, where the principle was recognized that on appeal such a judgment may be given as ought to be given if the case came at that time before the Court of first instance: cf. O. 41, R. 33 of the CPC. 1908.
4. The case before us obviously does not fall within the exeception. The plaintiffs claim to be owners of the disputed property and the allegation is that the defendants have dispossessed them wrongfully. This has been investigated and found to be substantially true by the Subordinate Judge. But the defendants contend that as during the pendency of the litigation in the Court of first instance, there has been a devolution of interest, the plaintiffs are no longer competent to maintain the suit. It cannot be disputed that in respect of mesne profits from the date of dispossession, the claim of the plaintiffs has not been affected by the sale of their interest in the land. That portion of the claim at any rate, must be investigated, and before a decree for mesne profits can be made in favour of the plaintiffs, the question of their title to the land also must be determined. The defendants are consequently restricted to the contention that although the title of the plaintiffs to the land at the date of the suit may be established, relief should not be granted to them by way of recovery of possession, and that such relief can legitimately be awarded only to persons who have succeeded to the interest of the plaintiffs. For this proposition no authority has been cited. On the other hand the argument, tested from the point of view of principle as well as convenience, seems obviously unreasonable. Under R. 10, O. 22 of the CPC, 1908, when there has been a devolution of interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against persons to or upon whom such interest has come or devolved. This entitles the person who has acquired an interest in the subject-matter of the litigation by an assignment or creation or devolution of interest pendente lite, to apply to the Court for leave to continue the suit.
5. But it does not follow that it is obligatory upon him to do so. If he does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record, and yet, as pointed out by their Lordships of the Judicial Committee in Moti Lal v. Karab-ud-Din . [1898] 25 Cal. 179, he will be bound by the result of the litigation even though he is not represented at the hearing. But the legislature has not further provided that in the event of devolution of interest during the pendency, of suit, if the person who has acquired title does not obtain leave of the Court to carry on the suit, the suit would stand dismissed. It is also plain that if the person who has acquired an interest by devolution, obtains leave to carry on the suit, the suit in his hands is not a new suit, for, as Lord Kingsdown said in Prannath v. Bookea Begum . [1851-59] 7 M.I.A 323, a cause of action is not prolonged by mere transfer of the title. It is the old suit carried on at his instance and he is bound by all proceedings up to the stage when he obtains leave to carry on the proceedings: Rajaram Bhagwat v. Jibai . [1885] 9 Bom 151.; In the matter of the petition of Sarat Chandra Singh23. If this view were not maintained, what would be the result? The suit commended by the plaintiff stands dismissed. The person who has acquired the right, title and interest of the plaintiff commences a fresh suit. His cause of action is the original cause of action upon which plaintiff 1 commenced his suit. It may consequently happen that while the plea of limitation would have been of no avail in answer to the claim of the original plaintiff, it may be very effective as an answer to the subsequent suit. It may also be asked, if the contention of the appellants were to prevail, what would happen in the event of a devolution of the interest of the defendants. Would the suit be heard ex parte, because the interest of the defendants had passed to a stranger to the litigation, or would the suit stand dismissed because it was at that stage a suit against a person who had no interest in the litigation?
6. If the coutention of the appellant were upheld, there, would obviously be endless litigation and the substantial rights of litigants might be completely defeated. It is also worthy of note that at the stage when the objection is taken, neither the Court nor the parties may be in a position to decide that there has been a final and operative devolution of interest. For instance if the devolution of interest is due to an execution sale of the right, title and interest of the plaintiff, the validity of that sale may be challenged and the proceedings consequent thereon may be protracted. Would the original suit be dismissed on the assumption that the sale was valid and operative? If this course were pursued, what would happen if it ultimately transpired that the sale was inoperative and that there had been no effective devolution of interest? No doubt cases are conceivable, where the Court may have to stay the trial of the suit by reason of a devolution of the interest of one of the parties in favour of his opponent. For instance, if the interest claimed by the plaintiffs have been purchased by the defendants, the latter may fairly ask that the suit be stayed till the question of the validity of the sale in their favour has been finally determined. But except in cases of this peculiar character, it is plain that the trial of the suit should not be arrested merely by reason of the devolution of the interest of the plaintiffs. The successor-in-interest may, if he chooses, obtain leave of the Court under O. 22, R. 10, but if he does not do so, the original plaintiffs are entitled to continue the suit and their successors will be bound by the result of the litigation. The consequence will be that the plaintiffs, if successful, will obtain a decree which will enure to the benefit of their successor.
7. The result is that the decree of the Subordinate Judge is confirmed and this appeal dismissed with costs.
V.B/R.K
8. Appeal dismissed.