Evidence on matters not forming part of the issues should be disregarded, and parties should raise relevant issues from the outset.

Macnair, A J C—This appeal arises out of a Suit for mesne profits. The plaintiff-appellant in this Court urges that three items of consent money and the value of certain manure should have been included in the profits. The learned judge of first appeal states that he does hot discuss the arguments relating to consent money as the plaintiff should have been aware of transfers and should have made a plea about the consent money from the outset. Now, this is a suit for accounts. The plaintiff in his plaint had merely to ask the defendant to render an account, and this is what he did. The defendant put in an account. Then the plaintiff, on 2nd March 1925, made objections. He stated: The amount of Sewai income given by the defendant is denied. Plaintiff files a schedule for the years in suit.

2. The issue framed on this point was: What was the Sewai income during the year in suit.

3. Although I should prefer Judges to mention the to which an issue referred, there could have been no doubt regarding the scope of this issue. Both parties have put in an account : presumably the plaintiff included all items admitted by the defendant : the issue referred to those sums which the plaintiff claimed and the defendant denied. In the course of evidence witnesses deposed to receipt of the entirely new items which from the subject of this appeal, and certain of these items were held to be proved by the first Court.

4. I agree with the lower appellate Court that suits cannot be tried in this way. Where there are definite pleadings and a definite issue on those pleadings is framed, the finding must be confined to matters raised in the issue. It is of course open to the parties to ask that fresh pleadings should be allowed and additional issues struck. But if they, although represented by counsel, produce evidence on matters which do not form part of the issues, this evidence should be disregarded. There was not even, in the-lower appellate Court, a prayer to allow to amend the pleadings. Such a prayer is made to me, but I refuse to allow these items to be put in issue at this stage. The appeal, so far as regards the consent money, therefore, fails.

5. The other item refers to the value of manure collected from the Gowthan. I do not think the clause in the wajib-ul-arz, that anyone may collect manure from waste land, can be applied to a Gowthan. Gowthan is the place where cattle are collected in the morning before they are taken to graze on the waste land or elsewhere. Naturally much cowdung is deposited on the limited space, and for the purpose of making rules regarding the right to the manure the Gowthan is very different from the waste lands on which the cattle pasture. It would clearly be absurd to direct that the manure in the Gowthan could be taken by anyone who pleased for it is admitted that this manure, which can be removed with ease, has considerable value.

6. But, apart from the question whether the plaintiff had a legal right to collect the manure, it is clear that he was allowed to collect it because of his position as managing shareholder. He cannot refuse to account for the profits he received on the ground that, though he took the manure in his capacity of managing cosharer, he had no legal right to do so.

7. The trial Judge held that the income from this source was Rs. 400 a year. This finding was challenged in appeal, but there is no finding by the lower appellate Court. It appears proper that I should determine the issue of fact under Section 103, Civil P.C. I do not lay great stress on the fact that the defendant has not given a complete account of the value of the manure received and the expenses incurred in collecting it. Such an account would be extremely troublesome to keep, and no inference can be drawn from the fact that it has not been kept. Similarly, it is difficult to place much reliance on the estimates given by the plaintiff's witnesses of the amount of manure which the defendant removes from the Gowthan in a year.