A trespasser in possession of premises cannot be ejected otherwise than in due course of law.

B.S.Yadav, J.

1. This judgment will dispose of the above titled appeal, as well as appeal No. 1326 of 1976, titled Inderjit v. Banwari Lal and others as both arise out of the same suit. Reference to the parties will be made as arraigned in the present appeal.

2. The facts leading to these appeals are that Tirath Ram alias Ram Tirath appellant No. 1 had obtained an ejectment order against Sant Ram respondent No. 2 in respect of the premises in dispute under the provisions of the East Punjab Urban Rent Restriction Act, 1949 . Thereupon Inderjit respondent No. 1 filed this suit for permanent injunction restraining Tirath Ram from dispossessing him from the premises in dispute in execution of the said order. His plea was that he was a tenant in the suit premises under Banwari Lal appellant No. 2. It may be mentioned here that Tirath Ram is son of Banwari Lal. The suit was contested by Tirath Ram and Banwari Lal. They reiterated that Sant Ram was a tenant in the premises in dispute under Tirath Ram. The learned trial Court held that Inderjit was in possession of the premises in dispute since 1968 and was paying Rs. 38/- p.m. as rent to Banwari Lal, but still there was no relationship of landlord and tenant between them and the status of the former in the premises in dispute was that of a trespasser. It was further held that even a trespasser could not be ejected from the premises in his possession otherwise than in due course of law. Accordingly, it granted a decree for permanent injunction restraining Tirath Ram from dispossessing Inderjit from the suit premises forcibly or in execution of the order of the Rent Controller or in any other way otherwise than in due course of law. Feeling aggrieved against that judgment and decree, Tirath Ram and Banwari Lal filed an appeal. Inderjit filed a separate appeal against the finding that he was a trespasser in the suit premises. Both these appeals were heard by the learned Senior Subordinate Judge (with Enhanced Appellate Powers), Ludhiana. He did not find any force in the two appeals and dismissed the same. Against those decrees, Tirath Ram and Banwari Lal have filed the present appeal, while Inderjit has filed the other appeal.

3. The main argument of the learned counsel for the appellants in this appeal was that Inderjit had come to the Court on a specific plea that he was a tenant in the suit premises under Banwari Lal and as that plea was not substantiated, his suit was to be dismissed and he was not to be granted the relief treating him as a trespasser. He has also relied upon M/s Trojan & Co. v. R.M. N.N. Nagappa Chettiar, AIR 1953 SC 235 to show that the decision of a case cannot be based on the grounds outside the pleadings of the parties and it is the case pleaded that has to be found. I am of the opinion that the said ruling has no application to the present case. In that case the plaintiff had pleaded that certain transaction was not authorised by him and that it had been made in contravention of his instructions. He had claimed compensation on the ground of breach of instructions. He did not in the alternative make any claim on the ground of failure of consideration. At the hearing it was elicited from him that he either instructed the defendants to purchase the shares or at any rate ratified the purchase which the defendants had made on his behalf. It was urged before the appellate Bench of the Madras High Court that having pleaded one thing and having led evidence in respect of that claim, and later on having been forced to admit in the witness box that the true state of things was different, the plaintiff had disentitled himself to the relief as regards the transaction and was not granted relief he had not asked for. The High Court negatived that contention on the ground that though a claim for damages in respect of a particular transaction might fail that was no bar to make a direction that the defendants should pay the money actually due in respect of that particu