The possession of a mortgagee of an occupancy holding, the transfer whereof was forbidden by law, is merely permissive in nature and cannot mature into ownership or occupancy rights, unless he repudiates the title of the mortgagor and re-occupies the same under a different right, title, and status.

JUDGMENT : This is a second appeal by the defendant arising out of a suit for possession of two plots Nos. 203 and 209 situated in village Raipur, Pargana Kewai in the district of Allahabad. Briefly stated the plaintiff's case was that one Raghunandan Singh was an occupancy tenant of the two plots in suit and had mortgaged the same for Rs. 50/- with Bindra, father of the defendant-appellant about thirty years ago i.e., in or about the year 1921 and that Bindra aforesaid was first in possession of the mortgaged plots and after his death the defendant has continued in permissive possession. The plaintiff's case further was that though the mortgage of an occupancy holding was void yet the plaintiff was entitled to recover possession of the land on payment of the debt of Rs. 50/- to the defendant. The defendant contested the suit, inter alia, on the ground that the mortgage set up by the plaintiff did not exist and was only imaginary, that the defendant was in possession of the property as a mortgagee for 60 years under a different mortgage deed dated Phagun Badi 10, Samwat 1929 (1883) Ex. P. 9 for Rs. 99/- executed by the said Raghunandan Singh in favour of the defendant's father, it was further pleaded that after the expiry of 60 years, the defendant's possession became adverse, which, had matured into fulfledged occupancy rights after the efflux of another 12 years; as such the suit was barred by limitation.

2. The trial Court held that the mortgage set up by the plaintiff was not proved and, therefore, dismissed the suit on this ground alone. It did not go into the question of limitation pleaded by the defendant. Being aggrieved against the aforesaid decree of the trial Court, the plaintiff preferred an appeal, which was allowed by the Court below, decreeing the plaintiff's suit for possession on payment of Rs. 99/- to the defendant on the ground that although the plaintiff had failed to prove his case as set up in the plaint, yet he was entitled to a decree on the case as set up by the defendant; hence this appeal by the defendant.

3. The learned Advocate General appearing on behalf of the defendant appellant has, in the first place, urged that the court below acted illegally and beyond its jurisdiction in decreeing the suit on the pleas which had not been set up by the plaintiff in the plaint. It is true that normally the plaintiff has to lay foundation in the plaint for the relief sought by him and the Court would not decree the suit if the plaintiff had failed to establish his case, as set forth in his pleadings. If he wants a relief on an alternative plea which is inconsistent with his pleadings, the proper course for him is to get the plaint duly amended, so that the defendant may have good notice thereof and may not be taken by surprise. However, if a definite case has been set up by the defendant in his pleadings and the plaintiff subsequently accepts the same, the Court would be justified in decreeing the suit in terms of the defendant's case if the plaintiff is found to be entitled to a decree even on that basis, in such a case it is not necessary for the plaintiff to get his plaint amended or to institute a fresh suit for the relief allowable to him on the basis of the case set up in the written statement. In support of his contention Mr. G.P. Bhargava, learned counsel for the plaintiff-respondent has invited my attention to the case of Jai Nandan Tewari v. Umrao Koeri, AIR 1929 All 305 wherein Ashworth, J. observed :

"When in the case of usufructuary mortgage a plaintiff sues on the allegation that the property was mortgaged under two mortgages of which he gives the terms from hearsay and the defendant mortgagee admits that he holds the property as mortgagee but under 12 mortgagees, the Court is entitled to allow the plaintiff to succeed upon the admission of the defendant........ even though his plaint set forth mortgages different in number and in other respects."

Unfortunately Ashworth, J. had not ascribed