In a suit for ejectment on the ground of tenancy, if the plaintiff pleads title and the parties lead evidence in that regard, a decree for possession on the basis of the title can be passed.

RAJENDRA NATH MITTAL, J.

1. This letters patent appeal has been filed by two of the defendants against the judgment of the learned single Judge, dated 14th May, 1976.

2. Briefly, the facts are that the shop in dispute was sold by Mohinder Singh defendant to Rakesh Kumar plaintiff for a sum of Rs. 5,200 by a registered sale deed, dated 23rd November, 1958. The shop was on a monthly rent of Rs. 40 with M/s. Om Parkash Ghansham Dass, defendant No. 1. Om Parkash Ghansham Dass and Pawan Kumar respondents and Ram Niwas appellant are the proprietors of the firm. After the purchase the plaintiff served a notice on the tenant-firm informing it that he had purchased the shop and asking it to pay the damages and vacate the same. The firm claimed that Smt. Mohinder Kaur was the owner of the property under whom it was holding the shop as a tenant and consequently the question of vacating it or making payment of rent to him did not arise. The plaintiff, therefore, instituted a suit for ejectment and recovery of Rs. 1,386/10/8 by way of damages.

3. The suit was contested by the firm and its proprietors. They controverted the allegations of the plaintiff and denied that the plaintiff had become the owner of the shop by purchase from Mohinder Singh. They further pleaded that the suit was filed on the basis of tenancy and, therefore, no decree for possession could be passed in favour of the plaintiff on the basis of ownership.

4. It was held by the trial Court that the plaintiff failed to prove the tenancy as alleged by him, rather the firm was a tenant under Mohinder Kaur. It further held that Mohinder Singh was not an exclusive owner of the shop and, therefore, he could not transfer it to the plaintiff. The suit was, therefore, dismissed by it. The learned District Judge, in appeal, upheld the findings of the trial Court and confirmed its decree. The plaintiff came to this Court in second appeal. The learned single Judge affirmed the finding of the District Judge that the plaintiff failed to prove that the firm was a tenant under Mohinder Singh. He, however, came to the conclusion that Mohinder Singh was entitled to sell the property and, therefore, a valid title was acquired by the plaintiff. He then held that an overall reading of the plaint showed that the suit was for possession on the basis of title and that even otherwise there was no bar to grant a decree for possession on the basis of title as the plaintiff had made necessary averments in the plaint in that regard. Consequently, he accepted the appeal and decreed the suit of the plaintiff. The firm and Ram Niwas, one of its proprietors, have filed this letters patent appeal.

5. The main question which arises for decision is that if in a suit for ejectment on the ground of tenancy, the plaintiff pleads title and the parties lead evidence in that regard, can a decree for possession on the basis of the title be passed. According to the learned counsel for the appellants, it cannot be done. It is well-settled that if the parties knew that a point arises in a case and they produce evidence on it, though it does not find place in the pleadings and no specific issue has been framed on it, the Court can still adjudicate thereon. None of the parties can be allowed to say that the Court cannot decide the matter because it was not raised in the pleadings. The matter is not res integra. A similar question arose before the Privy Council in Rani Chandra Kunwar V/s. Narpat Singh, (1906) 34 Ind App 27. In that case, the defendants at the time of trial raised a contention that the plaintiff had been given away in adoption and was, therefore, not entitled to inherit. This plea was neither taken in the written statement nor an issue had been framed thereon. The contention was raised before the Privy Council by the plaintiff that in view of the pleadings, the question of adoption could not be gone into. It was held by Lord Atkinson that as both the parties had gone to trial on the question of ado