JUDGMENT Chakravartti, J. - This appeal is by the Plaintiff who lost in both the Courts below. His suit was one for declaration of title to two plots of land, viz., Plot No. 892 and the western portion of Plot No. 895, for recovery of possession of portions of them and for confirmation of possession as to the rest. The raiyati to which the lands appertain originally belonged to one Imanuddin and on his death the lands of the raiyati came to be distributed between his heirs who or whose successors are Defendants Nos. 7 to 19. The Plaintiff's case, more fully stated, was based upon almost a maze of alleged exchanges. He claimed to have obtained the plots in suit from Defendants Nos. 8-10 in exchange for portions of Plots Nos. 821 and 823 which he had given to them. Plot No. 895 does not stand in the name of Defendants Nos. 8-10 or their father Asimuddin, Defendant No. 7, but in the name of Karimbux, Defendant No. 11. The Plaintiff alleged that Asimuddin had obtained it from Karim under an exchange? As to how Plots Nos. 892 and 895 came to be dealt with by Defendants Nos. 8-10 when their father Asimuddin was alive, the Plaintiff set up a Heba by which Asimuddin was alleged to have given away the lands to Defendants Nos. 8-10. As to his own title to the lauds which he claimed to have given to Defendants Nos. 8 to 10, under the exchange, the Plaintiff alleged a compromise between him and Defendants Nos. 14 to 19, the heirs of Abdul Kader, in a proceeding for setting aside a sale. He claimed to have raised the level of the lands by drawing earth from Plot No. 893 and this plot again he claimed to have obtained under an exchange between him and Defendants Nos. 12 and 13, the heirs of another co-sharer, Abdul Majid. 2. Having recited the history of his title in the manner above indicated, the Plaintiff proceeded to state that there had been a deed of exchange but it had not been registered by Defendants Nos. 8 to 10 on one pretext or another. He had however taken possession and was in possession till he was dispossessed from a portion of the lauds by Defendants Nos. 1-5 who had put up a number of huts. 8 to 10 on one pretext or another. He had however taken possession and was in possession till he was dispossessed from a portion of the lauds by Defendants Nos. 1-5 who had put up a number of huts. These Defendants had executed kabuliyats in favour of Defendant No. 7 and claimed to have obtained a settlement from him. On the above allegations the Plaintiff asserted that he had acquired a title by adverse possession and prayed, inter alia, that such title might be declared, a decree for possession might be made in respect of the area from which he had been dispossessed, his possession in respect of the rest might be confirmed, Defendants Nos. 1-5 might be directed to remove their structures and they might be injuncted against erecting any further huts. The deed of exchange is dated the 29th of January, 1939. 3. The Defendants were a great many in number. Defendants Nos. 8-10 were the persons from whom the Plaintiff claimed to have obtained the lands under an exchange. Defendant No. 11 was Karim Bux in whose name Plot No. 895 stood in the record-of-rights and who was alleged to have given the plot to Asimuddin under an exchange. Asimuddin, the father of Defendants Nos. 8-10, was Defendant No. 7. Defendants Nos. 12 and 13 were persons from whom the Plaintiff claimed to have obtained Plot No. 893. And, Defendants Nos. 14-19 were persons from whom the Plaintiff claimed to have obtained the portions of Plots Nos. 821 and 823 which, according to him, he had given to Defendants Nos. 8-10. 4. All the alleged exchanges were denied by the parties respectively concerned. As regards the exchange with Defendants Nos. 8-10, the latter stated that no such exchange had ever taken place and the deed set up by the Plaintiff was a piece of forgery. The Plaintiff had never taken or been in possession of the lands in suit. As regards the Hebanama, Defendants Nos. 8-10 asserted that even if it included Plot No. 895, the deed was a fictitious document, having been executed for the purpose of defeating creditors. 5. The last point has ceased to be of importance. Defendant No. 7 died during the pendency of the suit and his only heirs, as the record shows, are Defendants Nos. 8-10. 8-10 asserted that even if it included Plot No. 895, the deed was a fictitious document, having been executed for the purpose of defeating creditors. 5. The last point has ceased to be of importance. Defendant No. 7 died during the pendency of the suit and his only heirs, as the record shows, are Defendants Nos. 8-10. If the latter did execute an exchange, their interest in the property will pass, whether they received it from their father under a gift or by inheritance, provided it belonged to the father. 6. The trial Court dismissed the Plaintiff's suit. It held that there had been no talk or transaction of exchange as alleged; that the deed of exchange set up in the case had not been executed by Defendants Nos. 8-10; that the deed, Ex. 1, was "an invalid document for want of registration"; that it was not admissible in evidence; that the Plaintiff had never been in possession of the suit lands; and that even if he had been, having no title and having been dispossessed, he had no remedy. 7. Thereupon the Plaintiff preferred an appeal. At the first hearing of that appeal, the lower Appellate Court directed three additional items of evidence to be taken in and the findings of fact to be reconsidered in the light of the evidence so supplemented. When the matter went down on remand, it was dealt with by a successor of the learned Munsif who had originally tried the suit. He recorded a short order, dated the 4th September, 1941, in which he stated that it was a matter of some delicacy for him to revise findings of fact arrived at by his predecessor. Thereafter he contented himself with merely saying that the fresh evidence did not affect the findings arrived at on the other evidence. 8. The appeal to the lower Appellate Court then came to be re-heard and it was heard by a successor of the learned Judge who had directed the remand. The judgment he delivered is the judgment under appeal. The learned Judge first set out what he described as the "background" of the case and in that portion of his judgment he recited the subsidiary transactions alleged by the Plaintiff, with occasional remarks as to their probability or improbability. The judgment he delivered is the judgment under appeal. The learned Judge first set out what he described as the "background" of the case and in that portion of his judgment he recited the subsidiary transactions alleged by the Plaintiff, with occasional remarks as to their probability or improbability. Coming next to the exchange relating to the plots in suit, the learned Judge made a somewhat fuller attempt to compare the probabilities on the two sides but the result he reached was that "the truth may lie either way." He proceeded however to refer to the fact that, contrary to the usual practice, the stamp used for the deed of exchange did not bear the signature or thumb impression of the purchasers and that circumstance, he stated, strengthened his suspicions. "Accordingly," he concluded, "I think I should agree with the findings of the learned Munsif." The learned Judge further held that the unregistered deed of exchange could not be "admitted in evidence for proof of title or maintaining a suit for recovery of khas possession." Accordingly he dismissed the appeal. 9. Thereupon the present second appeal was preferred by the Plaintiff. On his behalf it was urged by Dr. Sen Gupta, first, that there were no proper findings of fact by the lower Appellate Court and secondly, that the Courts below were wrong in holding that the deed of exchange, Ex. 1, was not admissible in evidence. In the last place he contended that the Plaintiff should be allowed to amend his plaint and convert his suit into one for specific performance. 10. As regards the first point, I cannot say that the Plaintiff had no cause for complaint against the judgment of the learned Judge and if the case depended on the issues of fact, I would have to consider whether the case ought not to be remanded for proper findings on those issues. It is true that the documents admitted as additional evidence were of little or no importance, nor can it be said that the failure of the trial Court to deal with the case properly on remand caused, by itself, any prejudice to the Plaintiff, since the whole evidence was before the learned Judge and the whole matter open to him as the final Court of fact. But the learned fudge's own finding is infirm to a degree. But the learned fudge's own finding is infirm to a degree. So far as he gives his own opinion on the evidence, he says that either case may equally be true and then, most abruptly, he accepts the findings of the trial Court for a reason which it is difficult to regard as sufficient. The Plaintiff was entitled to a proper consideration of the evidence by the lower Appellate Court and its own definite findings thereon; and if his claim stood or fell by the facts, I would have to consider carefully whether he had had it. But in my view the Plaintiff fails on a ground of law and no useful purpose will be served by ordering a remand. 11. The lands dealt with by the deed of exchange are admittedly raiyati lands, governed by the Bengal Tenancy Act: their value is stated in the deed to be Rs. 80. Admittedly, the deed was not registered, but the Plaintiff's allegation is that he obtained possession even as Defendants Nos. 8-10 did of the lands given to them. 12. On the above facts, Dr. Sen Gupta's first contention was that the deed was outside the mischief of secs. 17and 49 of the Registration Act and therefore there was no bar in law to its passing title or to its being admissible in evidence. He pointed out that sec. 17 was out of the way, since the property was valued less than Rs. 100: and that sec. 49 was out of the way too, since that section only hit documents required to be registered under the Registration Act or the Transfer of Property Act. The present deed was required to be registered not under either of those Acts but under the Bengal Tenancy Act which found no mention in sec. 49. Accordingly, so it was contended, the bar imposed by sec. 49 did not apply. 13. The reply of Mr. Hamidul Huq who appeared on behalf of the Defendant-Respondents was that since there had been an instrument in writing, it required registration under sec. 54 of the Transfer of Property Act, read with sec. 118, although the value of the subject-matter might be less than Rs. 100 and although the lands might be agricultural lands. From the operation of those sections, he pointed out, agricultural lands were not excluded. Accordingly, he contended, the bar of sec. 49 applied. 14. 54 of the Transfer of Property Act, read with sec. 118, although the value of the subject-matter might be less than Rs. 100 and although the lands might be agricultural lands. From the operation of those sections, he pointed out, agricultural lands were not excluded. Accordingly, he contended, the bar of sec. 49 applied. 14. The answer of Dr. Sen Gupta was that there had also been delivery of possession and if there had been, the sale was effective without the instrument and it did not require registration since title passed not by it, but otherwise. 15. In my view, the deed in the present case could not affect title or be received in evidence of the transaction of exchange. As regards its affecting title, I think that assuming sec. 54 of the Transfer of Property Act did not apply, the deed was still invalid and inoperative as a deed of exchange by reason of the provisions of sec.26Cof the Bengal Tenancy Act which is expressed in absolute terms. That section provides, to quote only the material portion, "that every transfer shall be made by a registered instrument" which means that a transfer may not be made otherwise and any purported transfer, made otherwise, is not a transfer at all. Title will not move till a written instrument incorporating the transfer has been registered. Sec. 26B makes it clear that transfer includes an exchange and transfer by exchange is expressly mentioned in sec. 26F (1) (b). Even apart from sec. 54 of the Transfer of Property Act and sec. 49 (a) of the Registration Act, sec.26F of the Bengal Tenancy Act is, in my view, alone sufficient to prevent the deed in the present case from passing or affecting title. 16. Coming next to the question of the deed being admissible in evidence, it is necessary to bear in mind the suit in which and the purpose for which the document is sought to be used. The present suit is one based on title, alleged to have been already acquired. It is not a suit for specific performance. No question of the nature of possession arises, since as to a part of the land the Plaintiff is not in possession and as to the rest, bare possession, without title, would not avail the plaintiff, as explained below, even if such possession be a fact which the Defendants deny. It is not a suit for specific performance. No question of the nature of possession arises, since as to a part of the land the Plaintiff is not in possession and as to the rest, bare possession, without title, would not avail the plaintiff, as explained below, even if such possession be a fact which the Defendants deny. Nor again is there any collateral transaction to prove. For a collateral transaction cannot be the very transaction which is ineffective for want of a registered instrument but must be a transaction other than one creating title and to prove such a transaction would be to no purpose in a suit like the present one. It is therefore pertinent to enquire for what purpose or as proof of what the document might be sought to be put in or be admissible, if it could not affect or be used to prove title. 17. As far as I could understand Dr. Sen Gupta, his contention was that notwithstanding that the deed might not have been registered and might not be operative to pass or prove title, his client was entitled to maintain a suit like the present one on the equities resulting from the acts done in pursuance of the contract embodied in the deed and in proof of that contract he would be entitled to put in the document and it would be useful for him to do so. It seemed to me somewhat extraordinary that this contention should have been advanced after Ariff's case L.R. 58 IndAp 91: s.c. 35 C.W.N. 550 (1931), but Dr. Sen Gupta contended that by that decision equitable relief had not been altogether barred. I am unable to accept his contention. In my view, as regards transfers of property governed in India by statute, the decision of the Judicial Committee in the case of Ariff v. Jadunath L.R. 58 IndAp 91: s.c. 35 C.W.N. 550 (1931) excludes altogether the equity of part performance as much in the case of a Plaintiff as in the case of a Defendant. Certain portions of the judgment of their Lordships may require further elucidation. Certain portions of the judgment of their Lordships may require further elucidation. For example, if there could be no mistaken belief on the part of Jadunath for the reason that there was a verbal contract, it may be enquired if or how there was such belief in the circumstances discussed in Maddison v. Alderson 8 A.C. 467 (1883) or in the case of Ramsden v. Dyson L.R. 1 H.L. 129 (1865). But the effect of the decision in Ariff's case L.R. 58 IndAp 91: s.c. 35 C.W.N. 550 (1931) is perfectly clear. It is that the English doctrine of part performance cannot be applied in India with such a result as to create without a registered instrument an interest which a statute says can only be created by such an instrument. The equity of part performance, as is explained in the decision, is applied in England only to dispense with the production of a written memorandum without which, however, the contract is not void, or voidable; it cannot be applied in India to relieve against a statute where a statute requires a registered instrument and where without registration the contract is void and the deed invalid. The contract, without a memorandum, not being invalid in England but only not provable at law, equity intervenes to authorise the acceptance of acts done in pursuance of the contract as proof of the contract; the effect is not to validate what is otherwise invalid under a statute. In India, however, want of registration cuts at the root of the deed and no equity resulting from acts done can create or support a contract where no contract exists in law. If that be the principle laid down by the Judicial Committee, as I understand it to be, it is in my opinion not possible to say that any margin of equity is still left on which a Plaintiff can found a claim of title any more than a Defendant his defence, although acts in the nature of part performance may have taken place. 18. 18. Indeed, if equity resulting from part performance were alone sufficient to maintain a party in possession in the absence of legal title, it would not have been held in the case of Ariff v. Jadunath L.R. 58 IndAp 91: s.c. 35 C.W.N. 550 (1931) or the later cases of Currimbhoy, v. Greet L.R. 60 IndAp 297: s.c. 37 C.W.N. 265 (1932)and Pir Bux v. Sardar Mahomed Tahar L.R. 61 IndAp 388: s.c. 39 C.W.N. 34 (1934) that the Defendant could resist the Plaintiff's claim only if he brought a suit for specific performance, obtained a stay of the Plaintiff's suit and ultimately succeeded in his own. In India, specific performance is a legal remedy, but apart from that, the judicial Committee did not hold in either of the above cases that the Defendant could simply rely on the equity of Walsh v. Lonsdale 21 Ch. D. 9 (1882) and resist the Plaintiff's claim if he was within time for specific performance, even though he brought no action. What was laid down was that the Defendant must convert his personal right under the agreement into an interest in land by obtaining through specific performance a registered instrument. If that is the position of the Defendant, I cannot see how the position of a Plaintiff can be different or more favourable, it is true that in England the equity of performance is available both to a Plaintiff and a Defendant but it is impossible to hold that the Judicial Committee have taken away only the Defendant's equity but not the Plaintiff's. 19. Dr. Sen Gupta referred to the following passage in the judgment in Ariff's case L.R. 58 IndAp 91: s.c. 35 C.W.N. 550 (1931) : nor do they understand them (i.e., the dicta in Musa's case L.R. 42 IndAp 1: s.c. 19 C.W.N. 250 (1914) to mean that equity can override the provisions of a Statute and where no registered instrument exists (and no registrable document can be procured) confer upon a person a right which the statute enacts shall the conferred only by a registered instrument and he contended that where a registered document could still be procured, as in the present case where specific performance was not barred at the date of the suit, equity also would confer a right which the statute required a registered instrument to confer. I do not read this passage in that sense. I do not read this passage in that sense. In my view, so to read it would be to subject it to a false conversion and impose on it a meaning opposed to the whole tenor of the judgment. It is laid down in the judgment, without any qualification or ambiguity, that where the statute requires a registered instrument to create title, equity can not substitute something else for the instrument, nor support a claimant's possession till he has actually obtained one. 20. It remains to mention that Dr. Sen Gupta also referred to the doctrine of equitable estoppel. As regards that doctrine, the Judicial Committee pointed out in Ariff's case L.R. 58 IndAp 91: s.c. 35 C.W.N. 550 (1931) that there was nothing like it in Lord Kingsdown's judgment in Ramsdcn v. Dyson L.R. 1 H.L. 129 (1865) which had by some been supposed to be its source and that, in any event it would not apply unless there was some statement of fact grounding an estoppel. It is not easy to see how in the present case any estoppel would avail the Plaintiff against a statute. At any rate, there is no allegation of any contract outside the deed and none of any statement of fact as in the case of Forbes v. Ralli L.R. 52 IndAp 178: s.c. 30 C.W.N. 49 (1925). 21. I may mention that long before the true legal position was explained in Ariff's case L.R. 58 IndAp 91: s.c. 35 C.W.N. 550 (1931), it was held by this Court in a case relating to an unregistered deed of exchange that estoppel arising out of the doctrine of part performance could not create title in a person, if otherwise he had none, and that if he sought, as Plaintiff, to recover possession on the strength of his title, he could not succeed where there had been no transfer by a registered deed, if the same was required by a statute. See the case of Kalipada Basu v. Fort Gloster Jute Manufacturing Co. 31 C.W.N. 348 (1926). Since Ariff's case L.R. 58 IndAp 91: s.c. 35 C.W.N. 550 (1931), the position has been placed beyond misunderstanding or ambiguity by the short judgment of Lord Macmillan in the case of Pir Bux v. Sardar Mahomed Tahar L.R. 61 IndAp 388: s.c. 39 C.W.N. 34 (1934). 22. I am therefore of opinion that Dr. 31 C.W.N. 348 (1926). Since Ariff's case L.R. 58 IndAp 91: s.c. 35 C.W.N. 550 (1931), the position has been placed beyond misunderstanding or ambiguity by the short judgment of Lord Macmillan in the case of Pir Bux v. Sardar Mahomed Tahar L.R. 61 IndAp 388: s.c. 39 C.W.N. 34 (1934). 22. I am therefore of opinion that Dr. Sen Gupta's contention on this part of the case is not correct. It is not correct to say that where specific performance is not barred, the equity of part performance is still available in India to support a claim based on title, even though no registered instrument of transfer, as required by law, has been obtained; nor that there is any contract of transfer which can be proved in such a suit by the unregistered instrument. I have discussed Dr. Sen Gupta's contention at some length, perhaps unnecessarily. It could be met by the short answer that if a suit for specific performance was not barred, he could bring one and would not require the equity of part performance or any other equity. 23. Turning next to the provision of law under which the deed could be admissible in evidence, there is a more fundamental difficulty in Dr. Sen Gupta's way. His own argument was that the deed was unaffected by sec. 49 inasmuch as it was not required to be registered by either the Registration Act or the Transfer of Property Act. If that argument be correct, it is plain that the same consideration which excluded the deed from the mischief of the main provision of sec. 49 would equally exclude it from the benefit of the proviso. The proviso, like the main section, applies only to documents required to be registered by the two Acts which, according to Dr. Sen Gupta, did not apply to the deed. The deed would not therefore be admissible by virtue of the proviso to sec. 49 and if it be admissible at all, the sanction must be found elsewhere. One can think of sec. 91 of the Evidence Act, but under that section the deed would prove only the terms of the contract which had been reduced to writing. That contract, in the present case, is not a contract for sale but a contract of sale and such a contract being invalid for want of registration, by virtue of the provisions of sec. 91 of the Evidence Act, but under that section the deed would prove only the terms of the contract which had been reduced to writing. That contract, in the present case, is not a contract for sale but a contract of sale and such a contract being invalid for want of registration, by virtue of the provisions of sec. 26C of the Bengal Tenancy Act, it would be useless to prove it in a suit based on title. 24. There is a conflict of judicial opinion as to whether an instrument of transfer, relating to property valued at less than Rs. 100 would require registration under sec. 54 of the Transfer of Property Act, if there was delivery of possession as well. My own view is that where there is no evidence of any separate and antecedent oral contract and the deed, on a true construction, is found to constitute the transfer and alone to contain its terms, then despite delivery of possession, the transfer is not a transfer by delivery but a transfer by deed and the latter, to be operative, must be registered. Such is the present case and I am inclined to think that the deed required registration under sec. 54 of the Transfer of Property Act, though Dr. Sen Gupta contended to the contrary, entailing the result already stated. If within sec. 54, the deed would be admissible under the proviso to sec. 49 of the Registration Act for the purposes there mentioned. Those purposes however are, where there is no suit for specific performance, only proof of part performance in aid of a plea under sec. 53A of the Transfer of Property Act, which is available only to a Defendant and proof of a collateral transaction of which there is none in the present case. In the present suit, therefore, the deed could not be admissible to prove anything for the Plaintiff. 25. Dr. Sen Gupta in the last place contended that even if his client could not succeed in the suit as laid, he ought to be allowed to amend his plaint and convert his suit into one for specific performance. All the necessary facts, he contended, had already been pleaded and the prayer for possession, which was the chief prayer in the present suit, might properly remain and go with a prayer for specific performance. 26. All the necessary facts, he contended, had already been pleaded and the prayer for possession, which was the chief prayer in the present suit, might properly remain and go with a prayer for specific performance. 26. I am unable to accede to this prayer for several reasons. It is quite true that Courts are and ought to be not strict but liberal in the matter of allowing amendments, since they exist to decide the rights of the parties and not to punish them for the mistakes they make in the conduct of their cases. Yet, on the wide powers of allowing amendment two limitations are now well established. One is that an amendment can in no case be allowed which would have the effect of substituting one distinct cause of action for another or changing the subject-matter of the suit the other is that an amendment ought not ordinarily to be allowed which would take away from the Defendant a legal right which had accrued to him by lapse of time. An amendment of the nature asked for in the present case, if allowed at this date, would offend against both the principles. There are other objections as well. 27. Before, I deal with them, I may refer to one difficulty which on his own argument would be in Dr. Sen Gupta's way even in a suit for specific performance. He contended, as stated above, that the deed of exchange was not registrable under either the Registration Act or the Transfer of Property Act and it has been pointed out that thereby he was excluding the deed from the benefit of the proviso to sec. 49 of the Registration Act as well. It was held by this Court in the case of Sanjib v. Santosh ILR 49 Cal. 507: s.c. 26 C.W.N. 329 (1921) that a document which was inadmissible in evidence as an instrument of transfer for want of registration could not be used as evidence of a contract in a suit for specific performance, even though possession had been taken under the instrument. 507: s.c. 26 C.W.N. 329 (1921) that a document which was inadmissible in evidence as an instrument of transfer for want of registration could not be used as evidence of a contract in a suit for specific performance, even though possession had been taken under the instrument. That decision was cited with approval by the Judicial Committee in the case of Skinner v. Skinner L.R. 56 IndAp 363: s.c. 33 C.W.N. 1150 (1929) where their Lordships observed that to allow such a document to be used as a foundation for a suit for specific performance appeared to them to be little more than an evasion of the statute. The decision in Skinner v. Skinner L.R. 56 IndAp 363: s.c. 33 C.W.N. 1150 (1929) has been met by the proviso to sec. 49 but if a document, compulsively registrable, be outside the proviso, as on Dr. Sen Gupta's argument the present document must be, then it would still be hit by the decision and would not be admissible even in a suit for specific performance. It would make no difference that the statute evaded in the present case would be not the Registration Act but the Bengal Tenancy Act. There is no independent evidence of an agreement--at least I was referred to none such as Rankin, C.J., in Sanjib's case ILR 49 Cal. 507: s.c. 26 C.W.N. 329 (1921) found in Mahomed Musa's case L.R. 42 IndAp 1: s.c. 19 C.W.N. 250 (1914) and on which ground he distinguished the latter. But however that may be, the prayer for an amendment may now be considered on its merits. 28. The structure and contents of the plaint are such that if a prayer for specific performance of the contract of exchange is now to be introduced, almost the whole body of the averments will have to be struck out and new averments of an entirely different character substituted. The plaint does not base title on the exchange at all: at any rate, it regards the exchange, such as it was, as a completed transaction, long left behind. It does not allege that anything in respect of the exchange is due or expected to be performed. The plaint does not base title on the exchange at all: at any rate, it regards the exchange, such as it was, as a completed transaction, long left behind. It does not allege that anything in respect of the exchange is due or expected to be performed. What it does is that it refers to the execution of a deed of exchange, recites its non-registration within the time limited by law, mentions that possession was nevertheless delivered by both parties and then proceeds to state that the Plaintiff had acquired title by the adverse possession of himself and his predecessors. Title by adverse possession is the only title set up in the plaint and that is the title of which a declaration is asked for. The whole plaint proceeds on the basis that inspite of non-registration of the deed, each party had done its part with respect to the exchange, possession had been taken by the Plaintiff and enjoyed for some time and then, subsequently that possession had been invaded by certain third parties who claimed title under a settlement from Defendants Nos. 8-10. It is those third parties who are the primary Defendants, grouped and named as such, and it is against them that relief is principally sought, not with reference to the exchange at all, but with reference to title otherwise acquired and possession long ago taken. There is indeed a prayer for recovery of possession and it is true that with a prayer for specific performance a prayer for possession may properly be joined. But the possession prayed for in the plaint is not possession in execution or performance of the contract but restoration of possession which had duly been taken and which had since been lost by an act of third parties. It is impossible that such a prayer for possession should go with a prayer for specific performance. Again, the cause of action is stated to be not any default of Defendants Nos. 8-10 with respect to the exchange but subsequent dispossession by the primary Defendants from a portion of the land and threat by them of further dispossession. 29. It will be seen at once from the above summary of the plaint that averments which will have to be made in aid and support of a prayer of specific performance must necessarily be utterly inconsistent with those now existing. 29. It will be seen at once from the above summary of the plaint that averments which will have to be made in aid and support of a prayer of specific performance must necessarily be utterly inconsistent with those now existing. They could not possibly stand together. The cause of action too will be not only an entirely new and different one but also one completely opposed to the assertions now to be found in the plaint. The whole character of the suit will be altered. 30. Next, the amendment will deprive Defendants Nos. 8-10 of a valuable right which has accrued to them. By efflux of time the contract has lapsed and the Defendants have earned an immunity from its compulsory performance. The liability of their lands to pass to the Plaintiff under the agreement has disappeared. In those circumstances, it cannot be right, in the absence of any countervailing consideration to take away from the Defendants their valuable immunity by allowing a belated amendment. It was contended that at the date of the suit specific performance was not barred. That is true; but both in Currimbhoy v. Creet L.R. 60 IndAp 297: s.c. 37 C.W.N. 265, (1932) and Pir Bux v. Sardar Mahomed Tahar L.R. 61 IndAp 388: s.c. 39 C.W.N. 34 (1934) the Judicial Committee, ruled, with reference to the Defendant, that the relevant point of time was not the date of the suit or that of the written statement but the time when the question fell to be considered. Their Lordships held that although the contract might have been enforceable at the date the suit for ejectment was brought or even at the date when it was pleaded in the written statement, still if the Defendant had not brought a suit for specific performance before such remedy became barred, he had no longer any remedy and must suffer ejectment. There can be no reason why a Plaintiff should, as a matter of law, be in a different position or why he should be shown more favour by being allowed to get round the bar of limitation to the prejudice of the Defendant through an amendment. 31. A third reason why an amendment cannot be allowed is the confused and composite character of the suit. Defendants Nos. 8-10 and those claiming under them are not the only parties. 31. A third reason why an amendment cannot be allowed is the confused and composite character of the suit. Defendants Nos. 8-10 and those claiming under them are not the only parties. There is Defendant No. 11, a person with an alleged prior title but who asserts an existing one, against whom also a declaration of title is sought. There are others still, a miscellaneous body impleaded on allegations of various exchanges, who have nothing to do with the material contract. It is wholly impossible to see how those other allegations and other parties can remain in a suit for specific performance against Defendants Nos. 8-10 or 1-10 and if they were removed, how the suit would still remain the same in substance or at all. 32. I invited Dr. Sen Gupta and his learned Junior to say if there was any recorded instance where a suit for possession based on title had been allowed by an amendment to be converted into a suit for specific performance. They were unable to refer me to any. 33. For the reasons set forth above I am of opinion that it is not permissible in law to allow the amendment prayed for. Even if it were permissible as a matter of law, it would not be proper to allow it. The suit has been pending as a suit based on title for six years and an amendment which will have the effect of transforming the claim into a new claim and the pleadings into new pleadings cannot be allowed in disregard of the serious effect it will have on the position of the Defendants. The power of allowing an amendment is certainly a salutary power and one to be exercised liberally; but as has been said, it cannot be so exercised as to permit a Plaintiff to turn his suit into a gamble at the expense of the Defendant. 34. I am therefore unable to accede to the prayer that the Plaintiff should be allowed to amend his plaint and convert the suit into one for specific performance. On his present plaint, he is bound to fail in any event, even if he obtained possession. The case of adverse possession, it may be stated, was not even sought to be proved at the trial. 35. The result is that the appeal fails and is dismissed with costs. Leave to appeal under Ch. On his present plaint, he is bound to fail in any event, even if he obtained possession. The case of adverse possession, it may be stated, was not even sought to be proved at the trial. 35. The result is that the appeal fails and is dismissed with costs. Leave to appeal under Ch. 15 of the Letters Patent has been asked for. It is granted.