The main legal point established in the judgment is the interpretation and application of Order VI, Rule 17 of the Code of Civil Procedure, 1908, regarding the amendment sought by the plaintiff and the sufficiency of evidence in the admission made in the written statement of the defendants.

Napier, J.

1. The appeal arises out of a suit by the plaintiff to redeem a kanom. That was the original from of the suit although it is true that in his plaint he claimed to also recover the land on -the strength of title.

2. The defendants pleaded that they were Anubhavam tenants to the knowledge of the plaintiff.

3. In the course of the trial the plaintiff applied to, the District Munsif for leave to amend his plaint by accepting the position that the defendants were Anubhavam tenants and claiming his right to recover the property on the ground that his title as jenmi has been denied by the defendant, which denial operated as forfeiture.

4. The first court had, declined to grant the amendment. On appeal, the Subordinate Judge allowed the amendment but he allowed it on very narrow grounds which are to be found at the bottom of page 28. He said By the amendment sought to be made, plaintiff only wanted to make his position clean There was no change in the nature of the suit. Even without any specific allegation about forfeiture in the plaint the plaintiff would have been entitled to argue that in the strength of his title he was entitled to get a decree for possession inasmuch as the defendants have forfeited their right to hold the properties" In my opinion this is not a correct description of the nature of the amendment sought by the plaintiff. I do not think he only sought to make clear his orginal position. I am satisfied that finding that he could not prove his kanom he sought leave to bring the suit on the true footing that defendants were Anubhavam tenants.

5. In the order in which he gave leave to amend, the lower appellate Court however refused leave to call any further evidence, and in disposing of the appeal, the lower appellate court has found that he had not proved every thing that is necessary for the purpose of establishing his right to forfeit. What was necessary has been laid down by a Bench of this Court, to which I was a party and it is the judgment in that ease on which the Subordinate Judge relies. That was the decision in Kemalooti v. Muhamed (1917) I.L.R. 41 Mad. 629 : 34 M.L.J. 170. The requirement laid down in that case which the lower appellate court has found not to be satisfied, is stated in the headnote to be. that the denial must be made to the knowledge of the landlord. This decision has been attacked by learned Counsel on the ground that it was something new, and, that no case has ever laid down that before. I believe that it is true: that that the proposition had never been stated so definitely before and that was the reason why my learned brother; and 1 thought it necessary to state the whole law and all the requirements carefully, It ha? however been followed in a judgment of another Bench. That is a case reported in Raman Nair v. Mariyamma (1919) 11 L.W. 513 : 43 M. 480 Seshagiri Iyer, J. said, "It is well understood in this Presidency that the denial must be brought home to the knowledge of the landlord and it must be unequivocal and clear, and added that in Kema-looti v. Muhamed (1917) I.L.R. Mad. 629 : 34 M.L.J. 170 and in another ease this principle was distinctly stated. In my opinion, this must, as the learned Judges say, be now taken to be undisputed law in this country."

6. That being so, we have to consider whether there had been such a communication as to come within the statute. In the lower appellate court the vakil for the appellant relied on a certain document, Ex. J, which was a grant of jenrn right of two items of this estate by the person who now claims to be only an Anubhavam tonant. That this does operate as ka unequivocal denial cannot be denied: but when it came to the necessity of showing that this had been brought to the notice of the landholder prior to the suit, the appellant was unable to do this.

7. That the requirements must all be satisfied before the institution of the suit is definitely stated in a judgment of their Lordships of the Privy Council in Maharajah,