A plaintiff cannot be granted a decree for redemption on the ground of adverse possession if such a plea was not raised in the pleadings or in the issues framed by the trial court.

Ramaswami, J.

1. The question to be determined in this appeal is whether the pltf. ought to be granted a decree for redemption with respect to an area of 19 bighas & odd located in Mohiudinpore Khasiawan of which the defts. are said to have taken usufructuary mtge.

2. The pltf. brought the suit on the allegation that in Jeth 1320 Fasli Banke Bihari Singh had given the land by an oral ijara for a sum of Rs. 216 to four sets of defts., viz., defts. 1 to 5, defts. 6 to 10, defts. 11 to 14 & defts. 15 to 21. The pltf. alleged that as successor-in-interest of Banke Bihari Singh he repaid the ijara money to the defts. & after redeeming the mtge. obtained possession of the land. There was a subsequent dispute Under Section. 144, Cr. P. C. between the parties & the Subdivisional Mag. issued a warning notice against; the pltf. The pltf. asserted that on 20-8-1941 the defts. dispossessed him from the land illegally. The pltf. therefore asked (1) for

"a declaration that the defts. came in possession by virtue of the ijara of Jeth 1320 fasli & the said ijara was redeemed on 12th Jeth 1348 fasli by the pltf. & the possession of defts. thereafter was illegal, (2) that a decree for possession may be passed in favour of the pltf. against the defts. (3) that a decree for mesne profits be granted from date of dispossession till the date of the suit & thereafter till the recovery of possession by the pltf."

The main ground of, defence was that the defts. had not taken any oral ijara but they had purchased the land by an unregistered sale deed from Banke Bihari Singh. There was an alternative plea that even if the case of oral ijara was true such oral ijara was void & inoperative & the defts. were in adverse possession for the statutory period & had acquired absolute title to the land.

3. The Subordinate Judge held that the oral ijara was invalid, that the defts. had been in ad- verse possession of the land for over 12 years & had acquired absolute title. He disbelieved the defts. case that Rambabu, the maternal uncle of Bankey Bihari Singh, had executed any unregistered sale deed in their favour. The Subordinate Judge disbelieved the story of the pltf. that he had repaid the ijara money on 12th Jeth 1348, that he had obtained possession of the land or that the defts. had dispossessed him on 20-8-1941. On these findings, the Subordinate Judge dismissed the suit. The decree of the learned Subordinate Judge has been affirmed by the Dist. J. in appeal.

4. When the second appeal first came for hearing it was argued by Mr. Lalnarain Sinha on behalf of the pltf. that possession of the defts. as mtgees since 1320 fasli could in no way extinguish the title of the mtgor. when he sued for possession after repayment of the mtge. money. Impressed by this argument, the H.C. remanded the case to the Dist. J. for a finding whether the defts. were in possession of the properties as mtgees or as purchasers. The H. C. ordered that the unregistered sale deed relied upon by the defts. should be taken into evidence for the collateral purpose of showing the nature of the possession asserted.

5. The Dist. J. thereafter examined the evidence & recorded the finding that the defendants were in possession as mtgees. of the land, that they continued to be in possession as mtgee. from 1320 Fasli till the year 1941 when they asserted for the first time their rights as purchasers of the land.

6. When the appeal was heard after remand, Sinha & Rai JJ. refd. the whole appeal for decision by a larger bench since they doubted the authority of the ruling in Bhukhan Mian V/s. Radhika Kumari Debi, 19 P. L. T. 489.

7. Before the F. B. two questions were mainly argued (1) whether it is open to the pltf. to claim a decree for redemption despite the fact that the plea of adverse possession was not distinctly raised in the plaint & it has not formed the subject-matter of an issue before the Subordinate Judge, & (2) whether the pltf. could be granted such a decree on the ground tha