ORDER Naik, J.- 1. This is a second appeal by the defendants. 2. The suit of the plaintiff-respondent was for accounts of profits or for compensation for use and occupation by the defendants of what he alleged was the joint property of the parties. Initially, the claim was laid for the years 1955-56 to 1959-60 on the allegation that the plaintiff had been excluded by the defendants from joint possession of the suit property since about 1-5-1947, to the extent of his half share therein, and that though the plaintiff had demanded accounts of the profits several times, the defendants refused to render accounts or to pay his share of the profits. Later, on or about 1-7-1965, the plaint was amended to include accounts and profits for the period of the pendency of the suit, viz., for the years 1960-61 to 1964-65. 3. The trial Court decreed the claim of the plaintiff in the sum of Rs. 2,750 for the years 1955-56 to 1959-60. It disallowed the claim for the later years because, in its opinion, the suit must be decided on the cause of-action as existing on the date of the suit. Both the parties appealed. The learned District Judge allowed the appeal of the plaintiff and decreed compensation for all the years as claimed, viz., for the years 1955-56 to 1964-65. The appeal of the defendants was dismissed. 4. The suit property consists of cultivable land, a house and certain number of mango trees. 5. In this second appeal, various contentions were raised by the learned counsel for the defendants-appellants; but I need not discuss them in detail now, in view of the fact that the case is being remanded to the trial Court for a fresh trial. The main question that was debated before me was whether a suit by a co-sharer for accounts or for compensation against another co sharer lies; and if so, under what circumstances. After the point had been debated, both the parties agreed that as the law had been misconceived by the parties, it would be in the interest of justice that the case was remanded for a fresh trial so that the parties could, if so adviced, bring on record relevent evidence in support' of their respective contentions. After the point had been debated, both the parties agreed that as the law had been misconceived by the parties, it would be in the interest of justice that the case was remanded for a fresh trial so that the parties could, if so adviced, bring on record relevent evidence in support' of their respective contentions. Parties prayed that the Court may express its opinion on the abstract question of law as aforesaid so that the parties could be guided by it in laying their claims and in leading evidence in accordance with it. 6. The legal relationship between co-owners is not regulated by any statute. It is governed by judicial decisions and the principles laid down by judicial decisions are based on the principle of equity, justice and good conscience. 7. Under the common law, in England,- "If one tenant in common occupied, and took the whole profits, the other had no remedy against him whilst the tenancy in common continued, unless he was put out of possession, when he might have his ejectment, or unless he appointed the other to be his bailiff as to his undivided moiety, and the other accepted that appointment, when an action of account would lie, as against a bailiff of the owner of the entirety of an estate." (See Henderson v. Eason, (1849-51) 85 RR 628 at p. 641). This state of the law continued till the statute of Anne (4 Ann. c. 16) was passed, which by section 27 provided : "That an action of account may be brought and maintained by one joint tenant and tenant in common, hi, executors and administrators, against the other, for receiving more than comes to his just share or proportion, and against the executor and administrator of such joint tenant or tenant in common," The statute was held to apply only to cases - "Where the tenant in common receives money or something else, where another person gives or pays it, which the co-tenants are entitled to, simply by reason of their being tenants is common, and in proportion to their interests as such, and of which one receives and keeps more than his just-share according to that proportion." Its application to cases where one tenant in common has enjoyed more of the benefit of the subject, or made more by its occupation, than the other, was strongly resisted. Thus, in Henderson's case Parke, B., speaking for the Court said: "There are obviously many cases in which a tenant in common may occupy and enjoy the land or other subject of tenancy in common solely, and have all the advantage to be derived from it, and yet it would be most unjust to make him pay anything. For instance, if a dwelling-house, or barn, or room, is solely occupied by one tenant in common, without ousting the other, or a chattel is used by one co-tenant in common, nothing is received; and it would be most inequitable to hold that he thereby by the simple act of occupation or use, without any agreement, should be liable to pay a rent or anything in the nature of compensation to his co-tenants for that occupation or use to which to the full extent to which he enjoyed it he had a perfect right. It appears impossible to hold that such a case could be within the statute; and an opinion to that effect was expressed by Lord Cottenham in M' Mahon v. Burchell, 64 RR 211. Again, there are many cases where profits are made, and are actually taken, by one co-tenant, and yet it is impossible to say that he has received more than comes to his just share. For instance, one tenant employs his capital and industry in cultivating the whole of a piece of land, the subject of the tenancy, in a mode in which the money and labour expended greatly exceed the va1ue of the rent or compensation for the mere occupation of the land; in raising hops, for example, which is a very hazardous adventure. He takes the whole of the crops and is he to be accountable for any of the profits in such a case, when it is clear that, if the speculation had been a losing one altogether, he could not have called for a moiety of the losses, as be would have been enabled to do had it been so cultivated by the mutual agreement of the co-tenants? The risk of the cultivation, and the profits and loss, are his own; and what is just with respect to the very uncertain produce of the land, the fructus industriales, which are raised by the capital and industry of the occupier, and would not exist without it. The risk of the cultivation, and the profits and loss, are his own; and what is just with respect to the very uncertain produce of the land, the fructus industriales, which are raised by the capital and industry of the occupier, and would not exist without it. In taking all that produce he cannot be said to receive more than his just share and proportion to which he is entitled as a tenant in common. He receives in truth the return for his own labour and capital, to which his co-tenant has no right." 8. Similarly, in M' Mahon V. Burchell, 41 ER 889, it was held that mere occupation by one of several tenants in common of an estate, if unaccompanied by exclusion, did not make him liable for rent to his co-tenants. Again, in Jacobs v. Seward, (1871-2) LR 5 HL 464, where two persons were tenants in common of a field, the merely putting by one of them, a lock upon the gate (not shown to be kept locked) was not held to constitute an ouster so as to enable the co- tenant in common to maintain trespass. It was further held that in order to enable one tenant in common to maintain trover against another, there must not merely be a carrying away of it as will disable the party complaining from having the lawful use or benefit of the property, or there must be the destruction of it. In the words of the Lord Chancellor (Lord Hatherley),- "Now, as regards the question of trespass, it appears to be perfectly settled (there is really no controversy between the counsel in the case upon that part of the matter) that unless there be an actual ouster of one tenant in common by another, trespass will not lie by the one against the other so far as the land is concerned." *** *** *** "So long as a tenant in common is only exercising lawfully the rights be has as tenant in common, no action can lie against him by his co-tenant. Now it is perfectly lawful for a tenant in common to make hay, for somebody must make it, just as it is lawful for a tenant in common of a whale to make the blubber into oil. That is a perfectly legitimate purpose. Now it is perfectly lawful for a tenant in common to make hay, for somebody must make it, just as it is lawful for a tenant in common of a whale to make the blubber into oil. That is a perfectly legitimate purpose. It doe; not signify whether one or other of the tenants in common made use of it, it being made use of in an ordinary and legitimate way. No trover would, therefore, lie against the co-tenant in respect of his having done what he did. The cases in which trover would lie against a tenant in common are reducible to this. They are cases in which something has been done which has destroyed the common property, or where there has been a direct and positive exclusion of the co-tenant in common from the common property, he seeking to exercise his rights therein, and being denied the exercise of such rights." In Kennedy v. De Trafford, (1897) AC 180, it was held by the House of Lords that there was no fiduciary relation between tenants in common of real estate as such, nor could one tenant in common of real estate by leaving the management of the property in the hands of his co-tenant impose upon him an obligation of a fiduciary character. 9. The statute (4 Ann. c. 16 s. 27) has long been repealed; but the principle underlying it has been adopted as a part of the common law of England in Britain impose upon him an obligation of a fiduciary English common law. 10. In India also the principle of the English common law on the point bas been adopted by the Judges on grounds of justice, equity and good conscience. 11. It is well settled that a co-owner merely as a co-owner is not an agent for the other co-owners. [see Abu Shahid v. Abdul Haque, ILR (1940) 1 Cal. 110. But he may become an agent for the others by a contract, express or implied. 12. It is also wel1 settled that a co-owner is not a trustee of other co-owners, under the Indian Trusts Act, so that he does not hold any fiduciary position as regards the other co owners: [see Kanhaiyalal v. R. H. Skinner, ILR 54 All. 240. Superintendent of Stamps v. Chimanlal Lalbhai, ILR 47 Bom. 321 and K. Vishweswara v. K. Krishna Murthi, AIR 1957 AP 337 . 240. Superintendent of Stamps v. Chimanlal Lalbhai, ILR 47 Bom. 321 and K. Vishweswara v. K. Krishna Murthi, AIR 1957 AP 337 . But, where the provisions of section 90 or 94 of the Indian Trusts Act are attracted an obligation in the nature of a trust is created. 13. Co-owners hold property by several and distinct titles but by unity of possession. Actual physical possession is not indispensib1e, the requirement being of the right to possession of the common property. 14. As a corrolary to the aforesaid right, any co-owner, in the absense of any agreement to the contrary, ha, a right to enter upon the common property and take possession of the whole, subject to the equal right of the other co-owners with whose right of possession he has no right to interfere. 15. A co-owner's possession of the common property is not prima facie adverse against another co-owner, because such possession is considered as one on behalf of all the co-owners, except when there is clear proof of ouster or assertion of a hostile title. 16. As each co-owner is entitled to possess every bit of the common property and is not restricted to enjoyment according to his share so long as he does not deny to the other co-owners an equal right of possession and enjectment of the common property, he is under no obligation either to account for or to pay compensation to such co-sharers. The matter is different if there is objection from the other co-sharers and no amicable arrangement is arrived at. That would equally be the case where there is ouster or denial of the title of the other co-owners and an assertion of a hostile title in himself. 17. Mookerjee, J. in Mahesh Narain v. Nowbat Pathak, ILR 32 Cal. 837, in a lucid judgment, has carefully examined the question of the rights of a tenant in common to claim an account from the co-owner in possession of the common property and, speaking for the Division Bench on a review of the authorities, has ]aid down the following propositions as deducible from them: "(1) A tenant-in-common cannot be held liable to his co-tenant for damages for use and occupation of the joint property, unless there has been waste or an ouster of his co-tenants. (2) When a tenant in possession has prevented his co-tenants from obtaining from the premises such profits as they were capable of yielding, or has taken possession of the whole and used them as his own, and, thereby made a profit, he must account, either for the fair rental value or the profits, or be liable for mesne profits; for one tenant is bound to account to another only as his bailiff, under contract express or implied. (3) Where one tenant-in-common occupies the joint property, without any assertion of hostile or exclusive title on his part, and without claim on the part of his co-tenants to be admitted into possession, he is under no obligation to account, for he has a right to such occupancy." He quoted with approval the following statement of the law from Freeman on co-tenancy, section 258 : "As each co-tenant has at all times the right to enter upon and enjoy every part of the common estate, this right cannot be impaired by the fact that another of the co-tenants absents himself, or does not choose to c aim his right to an equal and common enjoyment; it would be inequitable to compel a co-tenant in possession to account for the profits realized out of skill, labour and business enterprise, when he has no right to can upon his co-tenant to contribute anything towards the production of these profits, nor to bear his proportion, when through bad years, failure of crops, or other unavoidable misfortunes, the use made of the estate resulted in a loss, instead of a profit, to the one in possession." 18. In Debendra Narayan Singha v. Narendra Narayan Singha, 23 Cal WN 900 at p. 902, another Division Bench of the Calcutta High Court, to which Mookerjee, J. was again a party, said: "Accordingly, each co-owner may, at all times, reasonably enjoy every part of the common property, that is, he is entitled to such enjoyment as will not interfere with the like rights of the co-owners. It necessarily follows that one co-owner has no rights to the executive possession and use of any particular portion of the joint properly; and if he exercises such rights and excludes his co-sharers from participation in the possession, he must account to his co-sharer for his interest in the part from which he is ousted, even though he takes no more than his just share. But the co-sharer out of possession cannot complain of the mere possession of the co-owner, so long as he refrains from setting up any claim to share in that possession. Hence, in order to give rise to a cause of action against the co-sharer, it must be proved that his act has amounted to ouster or disseisin. It is not easy to frame a formula which will cover all cases of ouster, but it may generally be stated that where there is an actual turning out or keeping excluded the party entitled to the possession, there is an ouster. Any resistance preventing a co-sharer from obtaining effective possession is an actual ouster. Such resistance must be clearly and affirmatively shown and is not presumed from equivocal facts which mayor may not have been designed to operate as an exclusion." 19. What constitutes 'ouster' will depend on the facts and circumstances of each case; but, as the same piece of land cannot be simultaneously occupied and enjoyed in its entirety by two persons, the so-called joint user of the property necessarily implies a division in space or a succession in time, an employment of a common agent or some other arrangement for common enjoyment; and consequently the evidence of merely exclusive occupation of the whole of the common property or a part of it without denial of the titles of the co-owners cannot imply an ouster. Various tests have been laid down to infer ouster; a old, according to Dwijendra Narain Roy v. Purendu Narain Roy, 11 Cal. LJ 189 at p. 196, one of the tests to be applied is whether the plaintiff who complains of the act of his co owner has sustained some substantial injury by reason of the act of which he complains. 20. LJ 189 at p. 196, one of the tests to be applied is whether the plaintiff who complains of the act of his co owner has sustained some substantial injury by reason of the act of which he complains. 20. The principles enunciated in Mahesh Narain v. Nowbat Pathak (supra) were approved by Kinkhede, A.J.C, in Bhagai v. Bheosen, 12 MPLC 295 = AIR 1925 Nag 240, where it was held that one co-sharer was not entitled to get mesne profits from his other co-sharers on account of their cultivating lands in excess of their shares when there is no proof of ouster. The principle was re-affirmed in Mst. Mohankwar v. Bhagatram, 19 MPLC 113=30 NLR 71. 21. In Abu Shahid v. Abdul Haque (supra) a Division Bench of the Court held : "There is no fiduciary relation between co-owners of a property as such vide Kennedy v. De Trafford, 1897 AC 180 and if one co-sharer realizes rents and profits, he does so in his capacity as an owner, for which no agency from the other proprietor is necessary. But for what he receives in excess of his share, he must be under an obligation to account to the other co-sharer.........If, however, there is actual ouster by one co-sharer of another, different considerations arise. The remedy of the co-sharer who is dispossessed must be to sue the other for joint possession and he can claim along with it compensation or mesne profit. A pure action of account would not be an appropriate remedy under such circumstances. This is also the law in England." 22. In Robert Watson and Co. v. Ram Chand Dutt, 17 IA 110, the suit by a co-sharer a tenant in common-was for a decree for joint possession, compensation and permanent injunction re-straining a co-sharer in possession of the joint property from cultivating it himself exclusive1y for his own benefit. The plaintiff co-sharer had endeavoured to sow oil-seeds and to prevent the Watson defendants from continuing the cultivation in which they were engaged and which had led to quarrels and even riots. The trial Court granted a decree, prayed for, in respect of 2/3rd of 14 annas share in the suit lands; but, on appeal, the High Court modified the decree to include the entire 14 annas share of the suit lands. The trial Court granted a decree, prayed for, in respect of 2/3rd of 14 annas share in the suit lands; but, on appeal, the High Court modified the decree to include the entire 14 annas share of the suit lands. Reversing both the decrees of the Courts below, the Judicial Committee holding that, under the circumstances of the case, the plaintiff was not entitled to a decree for joint possession nor for a decree of permanent injunction, said : "It seems to their Lordships that if there be two or more tenants in common, and one (A.) be in actual occupation of part of the estate, and is engaged in cultivating that part in a proper course of cultivation as if it were his separate property, and another tenant in common (B.) attempts to come upon the said part for the purpose carrying on operations there inconsistent with the course of cultivation in which A. is engaged, and the profitable use by him of the said part, and A, resists and prevents such entry, not in denial of B.’s title, but simply with the object of protecting himself in the profitable enjoyment of the land, such conduct on the part of A. would not entitle B. to a decree for joint possession. Their Lordships are further of opinion that the decree of the District Judge, so far as it orders an injunction to be issued, ought to be reversed. It appears to their Lordships that, in a case like the present, an injunction is not the proper remedy. In India a large proportion of the lands, including many very large estates, is held in undivided shares, and if one share-holder can restrain another from cultivating a portion of the estate in a proper and husband like manner, the whole estate may, by means of cross injunctions, have to remain altogether without cultivation until all the share-holders can agree upon a mode of cultivation to be adopted, or until a partition by metes and bounds can be effected-a work which, in ordinary course, in large estates would probably occupy a period including many seasons. In such a case, in a climate like that of India, land which had been brought into cultivation would probably become waste or jungle, and greatly deteriorate in value. In such a case, in a climate like that of India, land which had been brought into cultivation would probably become waste or jungle, and greatly deteriorate in value. In Bengal the Courts of justice, in cases where no specific rule exists, are to act according to justice, equity, and good conscience, and if, in a case of share-holders holding lands in common, it should be found that one share-holder is in the act of cultivating a portion of the lands which is not being actually used by another, it would scarecely be consistent with the rule above indicated to restrain him from proceeding with his work, or to allow any other share-holder to appropriate to himself the fruits of the other's labour or capital," It, however, affirmed the decree for compensation in respect of the exclusive use and benefit of the suit lands by the defendants. 23. Again, in Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy and others, 51 IA 293, where the suit by a co-sharer, tenant in common, was for a decree for partition and mesne profits against the defendant co-sharers in possession, who were denying the title of the plaintiff to the suit lands and consequently his right to their partition as well. Decreeing the suit for partition and for compensation, instead of for mesne profits, the Judicial Committee said: "Partition is the remedy which a co-owner has if he and the other co-owners cannot agree as to how the lands which they hold in common should be managed: see Robert Watson and Co. v. Ram Chand Dutt, 17 IA 110". They further negatived the plea of the defendants that the plaintiff had lost his title to the suit lands and held that the plaintiff was rightly given a decree for partition by the: Courts below; but as to the decree for mesne profits they substituted a decree for compensation for the exclusive use by the defendants of the suit lands till partition was effected and possession of the lands falling in partition to the share of the plaintiff had been delivered to him, as earlier held by the Board in Robert Watson and Co's case (supra). In so decreeing the claim of the plaintiff, the Board observed as follows: "Where lands in India are so held in common by co-sharers, each co-sharer is entitled to cultivate in his own interests in a proper and husband like manner any part of the lands which is not being cultivated by another of his co-sharers, but he is liable to pay to his co-sharers compensation in respect of such exclusive use of the lands. Such an exclusive use of lands held in common by a co-sharer is not an ouster of his co-sharers from their proprietary right as co-sharers in the lands. When co-sharers cannot agree how any lands held by them in common may be used, the remedy of any co-sharer who objects to the exclusive use by another co-sharer of lands held in common is to obtain a partition of the lands." Taken out of their context, the observations may appear to suggest that in all cases where a tenant in common cultivates in his own interests in a proper and husband like manner any part of the lands which is not being cultivated by another of his co-sharers, he is liable to pay to his co-sharers compensation in respect of such exclusive use of the lands which exclusive use of lands does not, under the circumstances of the case, amount to an ouster. But, as every case is an authority for what it actually decides, I do not think that the Judicial Committee meant to lay down any such broad proposition as is contained in the aforesaid extract of that judgment. On merits, the decision of the Board in both cases awarding compensation to the plaintiff was unexceptional on the facts and circumstances of the cases. Because, in the earlier case, the defendants had not only exclusively cultivated the suit lands which were the joint property of the co-sharers, as their own separate property, but had also resisted the plaintiff's entry upon such part of the lands though such act on their part was not in denial of the plaintiff's title to the suit lands but to protect such cultivation from wilful interference, by him and, in the latter case. the title of the plaintiff to the suit lands as also his right to their partition was denied by the defendant. 24. the title of the plaintiff to the suit lands as also his right to their partition was denied by the defendant. 24. Thus, we find that the Supreme Court in Jahuri Shah v. Jhunjhunwala, AIR 1967 SC 109 has laid down the law governing such cases in the following terms : "It is no doubt true that under the law every co-owner of undivided property is entitled to enjoy the whole of the property and is not liable to pay compensation to the other co-owners who have not chosen to enjoy the property. It is also true that liability to pay compensation arises against a co-owner who deliberately excludes the other co-owners from the enjoyment of the property. It does not, however, follow that the liability to pay compensation arises only in such a case and no other. Co owners are legally competent to come to any kind of arrangement for the enjoyment of their undivided property and are free to lay down any terms concerning the enjoyment of the property. There is no principle of law which would exclude them from providing in the agreement that those of them as are in actual occupation and enjoyment of the property shall pay to the other co-owners compensation. No authority was cited by learned counsel in support of his contention that ouster of a co-owner is a sine qua non for enabling him to claim compensation from the co-owner who is in occupation and enjoyment of common property." It, therefore, appears to me that if there is ouster, i.e., denial of title, the plaintiff co-sharer ought to sue for joint possession and mesne profits or for declaration of title as a co-owner, partition and mesne profits. If there is denial of possession without denial of title or right to possession, the plaintiff may sue for partition and compensation. A simple suit for accounts would not lie, when there is neither ouster nor denial of the right to possession. What is ouster would be a question to be determined on the facts of each case. When the right to possession as a co-owner is not denied but the right to actual physical possession is denied, the aggrieved co-owner may sue for accounts of the profits actually accrued due and appropriated by the co-owner in exclusive possession to his own use. 25. When the right to possession as a co-owner is not denied but the right to actual physical possession is denied, the aggrieved co-owner may sue for accounts of the profits actually accrued due and appropriated by the co-owner in exclusive possession to his own use. 25. In order to establish denial of actual physical possession, the plaintiff must prove that he had actually applied for or attempted to take possession but was resisted by the defendant. The mere fact that the defendant, without being asked, did not give him his proportion of the share of profits or refused to share the profits earned or produce cultivated by him is not enough, except in cases where the defendant is in receipt from third persons of rents and profits in excess of his legitimate share. Where the defendant co-owner is himself in exclusive possession of the common property without denying the plaintiff's title to it, without objection from the other co-owners or under an arrangement with them, he is not, in the absence of any agreement to the contrary, to share with the other co-owners the profits of his labour and investment, except in the case of waste or destruction. Thus, in respect of exclusive residence in the common house, the co-owner in such exclusive possession is not liable to account to the other co-owners because, being entitled to possession of every bit of the house, his possession is not wrongful vis-a-vis the other co-owners. The remedy of the other co-owners is to arrive at an arrangement by agreement of the parties or to seek a partition. 26. In the case of cultivable land, the co-owner in actual physical possession in proportion to or in excess of his share, without objection from the other co-owners, is not liable to account to them for the profitable use which he makes of the land by the expenditure of his labour and money. But, if the co-owner cultivates common lund in excess of his share, in spite, of protests from the other co-owners, he is liable to account to them for the actual profits in excess of his share. The principle is the same in the case of all fructus industriales. 27. But, if the co-owner cultivates common lund in excess of his share, in spite, of protests from the other co-owners, he is liable to account to them for the actual profits in excess of his share. The principle is the same in the case of all fructus industriales. 27. In case of fructus naturales, such as grass, which has grown without labour, or fruits of trees like mango, tamarind, etc., which require no attention in terms of labour or expenses, the co-owner appropriating all the produce to himself without objection from the other co-owners is not liable to the other co-owners to account, except in case where the produce has been sold to third persons and the defendant has received profits in respect of such produce in excess of his share. 28. Now remains the question whether the claim of the plaintiff in respect of compensation for the years 1960-61 to 1964-65 could be decreed. The suit of the plaintiff was filed on 30-7-1960 and the compensation then claimed by him was for the years 1955-56 to 1959-60. During the pendency of the suit, on or about 1-7-1965, he prayed for an amendment of the plaint and by this amendment he laid a claim for compensation for the years 1960-61 to 1964-65, which claim, though dismissed by the trial Court, has been decreed by the lower Appellate Court. 29. The question therefore, arises whether a plaintiff, who has a cause of action for compensation for five years prior to the institution of the suit, can, during the trial of the suit, add to his claim for compensation for years subsequent to the suit, the cause of action in respect of which accrued to him (using the pendency of the suit. 30. The general rule is that a suit is to be tried and decreed on the cause of action which existed and was available to the plaintiff on the date he filed his plaint. In the words of Mookerjee, J. in Rai Charan v. Biswa Nath, 20 Cal, LJ 107 at p.108,- "The rule was recognised in Radhay Koer v. Ajodhya Das, 7 Cal. LJ 262 that a suit must be tried in all its stages on the cause of action as it existed at the date of its commencement. In the words of Mookerjee, J. in Rai Charan v. Biswa Nath, 20 Cal, LJ 107 at p.108,- "The rule was recognised in Radhay Koer v. Ajodhya Das, 7 Cal. LJ 262 that a suit must be tried in all its stages on the cause of action as it existed at the date of its commencement. This is in accord with the observation of Lord Kingsdown in Annudmoyee v. Sheeb Chunder, 9 Moore's IA 287, at P. 301, that in appeal the question is whether the decision of the primary Court is correct on the facts as they stood when the judgment was rendered, and that no subsequent event or devolution of interest can affect that question, because to give effect to them should justice require it, would be the office, not of an appeal but of some supplementary proceeding." In Doorga Prosad v. Secretary of State, 72 IA 114, their Lordships of the Judicial Committee of the Privy Council said that they where of opinion that the relief claimed in that suit must be confined to matters existing at the date when the suit was instituted. 31. To the aforesaid general rule exceptions have been recognised and one such exception is that a Court may take notice of events which have happened since the institution of the suit and afford relief to the parties on the basis of the altered conditions. According to Raicharan's case (supra),- "This doctrine is of an exceptional character and is applied in cases where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate, or, that it is necessary to base the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties." See also Ram Ratan Sahu v. Bishun Chand, 11 CWN 732. Mandli Prasad v. Ramcharanlal, 35 MPLC 42= ILR 1947 Nag. 848 and Chhote Khan v. Mohammad Obedulla khan, ILR 1953 Nag. 702 (FB). 32. Obviously, the plaintiff' case cannot be brought under the aforesaid principle. 33. It is, however, urged that the trial Court could permit the plaintiff to amend the plaint and add to the claim already made claims which had arisen during the pendency of the suit. 34. 848 and Chhote Khan v. Mohammad Obedulla khan, ILR 1953 Nag. 702 (FB). 32. Obviously, the plaintiff' case cannot be brought under the aforesaid principle. 33. It is, however, urged that the trial Court could permit the plaintiff to amend the plaint and add to the claim already made claims which had arisen during the pendency of the suit. 34. The powers of the Court to allow amendments are contained in rule 17 of Order VI of the Code of Civil Procedure, which provides as follows: "The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendment shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties." 35. It was pointed out by Mukharji, J. in Nrisingh Prosad v. Steel Products Ltd. AIR 1953 Cal. 15 that the 'real controversy' test is the basic test which governs the Court's unchartered powers of amendment of the pleadings, and that no amendment should be allowed when the amendment does not satisfy this cardinal test. 36. It is on account of this principle that Courts do not permit amendments substituting new cause of action, in place of the cause of action on which the suit was filed nor the addition of a new and distinct cause of action which was not available to the plaintiff at the commencement of the suit; 37. But, as a cause of action may entitle a plaintiff to several reliefs which may be claimed by him, Courts in suitable cases, where subsequent events necessitate such a course, permit a plaintiff to add a new cause of action which has arisen subsequent to the filing of the suit but which entitled him to the one or the other relief already claimed by him in the suit, or to claim new or additional reliefs in respect of the cause of action on which the suit had been filed. But, in all such cases, it would be observed that the 'real controveny' test is satisfied. 38. But, in all such cases, it would be observed that the 'real controveny' test is satisfied. 38. In the instant case, the 'real controversy' is regarding the claim for compensation for five years prior to the filing of the suit and the claim for the five years subsequent to the filing of the suit was never in controversy between the parties on the basis of the suit as originally filed. Nor was this latter claim germane to any of the reliefs claimed in the suit, nor could this claim be said to be an additional relief in respect of the cause of action which was available to the plaintiff when the suit was instituted. 39. In Eshelby v. Federated European Bank Ltd., (1932) 1 KB 254, the question arose whether the official referee had jurisdiction to allow an amendment of the statement of claim which had arisen after the date when the action was begun. Swift, J. of the Divisional Court, after stating that the Court bad, under R. S. C., Order xxviii, F. 1 (which is in the same terms as our Order 6, R. 17, C. P. C.); ample power to make such amendments as were necessary for the real rights of the parties to be determined, said : "But here the learned official referee seems to me to have gone much further than amending the proceedings. He has allowed the plaintiff to bring into this action an entirely fresh cause of action, arising after this action had been started. In Tottenham Local Board of Health v. Lea Conservancy Board, 2 TLR 410, an action brought to restrain the Lea Conservancy Board from stopping the outlet of the effluents from the sewage works of the plaintiff Board into the River Lea. It was sought to amend the statement of claim by stating facts relating to some proposed new works, and adding an alternative claim for injunction to restrain the Lea. Conservancy Board from interfering until it should be ascertained whether the proposed new works were efficient; Pearson. J. refused the application, and from that there was an appeal. Cotton, L. J. said he would give no opinion whether the Court had power to allow the proposed amendment, but that if there were powers he thought it ought not to be exercised in the circumstances of that case. J. refused the application, and from that there was an appeal. Cotton, L. J. said he would give no opinion whether the Court had power to allow the proposed amendment, but that if there were powers he thought it ought not to be exercised in the circumstances of that case. Bowen, L. J. said that it was not necessary to decide the point, but he had a very strong opinion that the amendment could not be allowed, inasmuch as it related to a cause of action which did not exist at the time when the writ was issued. Fry, L. J. did not express any opinion upon the matter at all. So far as I know, Bowen; L. J.'s remarks in that case are the only authority which is to be found in this country, with the exception of an observation of Sir George Jessel in a case to which I will immediately allude, upon the point whether or not a writ can be amended so as to include a cause of action which was not in existence at the time when the writ was issued. I can find nothing in the Rules which justifies such an amendment. To bring in such a cause of action does not seem to me to be amending the proceedings at all; it admits a new cause of action, and one which could not have been sued upon at the time the writ was issued. An Irish case, Creed v. Creed, (1913) TLR 48, 50, seems directly to decide that such an amendment cannot be made. The head note is that 'A.B. believing that-X. died intestate, took out administration intestate to him, and commenced an action as such administrator against C.D./C.D., who had been aware that X. left a will, appointing him executor, declared that fact for the first time in his defence, and thereupon A. B, took out administration with the will annexed (C.D. having renounced) and sought to amend the pleadings accordingly. Held: that A.B.'s application must be refused, as at the date of the issue of the writ she had no title to sue. Held: that A.B.'s application must be refused, as at the date of the issue of the writ she had no title to sue. Barton, J. said: 'I am of opinion that this summons should be dismissed with costs, as the plaintiff's letters of administration were void ab initio; and she had no title to sue when the action was brought.' Here there was no right on the part of the plaintiff in this action to sue for that second instalment when the action was brought, and Creed v. Creed (supra) is helpful in the absence of any express rule on the matter in our own Courts or in our own Rules of procedure, as showing that such a cause of action cannot be added to the writ here." When the matter was taken to the Court of Appeal in Eshelby v. Federated European Bank Ltd., (1932) I KB 423 at p. 429; the aforesaid finding was not challenged; Scrutton; L. J. said: "When the writ was issued only the first instalment was due, but when the case came on for hearing the second instalment had fallen due. The Official Referee allowed the plaintiff to amend the writ by adding to his claim the second instalment. This was, I think, contrary to the universal practice." 40. In Subbiah v. Shanmugam, AIR 1928 Mad. 245 , the question whether intalments falling due after the filing of the suit could be decreed, was answered by Aiyangar, J. saying— "The suit must always be regarded as having relation only to the legal obligations which had accrued previous to the institution of the suit and this suit should be so regarded. Any decree passed by the Court of appeal in modification of the decree by the Court of first instance should only have been with regard to the liabilities on the date of the institution of the suit. Anyhow, the matter is not before me. Mr. Chandrashekhara Aiyar for the plaintiff-appellant has asked that I might now similarly pass a decree in favour of the plaintiff for the instalments that have fallen due subsequent to the date of the decision by the lower Appellate Court. I must refuse to do so. Anyhow, the matter is not before me. Mr. Chandrashekhara Aiyar for the plaintiff-appellant has asked that I might now similarly pass a decree in favour of the plaintiff for the instalments that have fallen due subsequent to the date of the decision by the lower Appellate Court. I must refuse to do so. It would lead to very serious consequences if actions instituted by the plaintiffs should be regarded to be not on the date of the institution, but with reference to the date on which the Court of appeal or second appeal comes actually to decide the point. Many things might have been done by and between the parties in the meantime and many events might have happened all of which might have a bearing on the determination of the question." 41. No apposite case was cited by the learned counsel for the appellants which had taken the view that claims on distinct causes of action arising sub-sequent to the filing of the suit, which do not satisfy the 'real controversy' test, could be introduced by way of an amendment under rule 17 of Order VI of the Code of Civil Procedure; and, in my opinion, neither on principle nor on authority could such an amendment be allowed. 42. In India Electric Works Ltd. v. B. S. Mantosh, AIR 1956 Cal. 148 , Sarkar, J. (as he then was), speaking for the Division Bench while negativing the contention that the plaintiff was entitled to a decree for compensation for the period after the date of institution of the suit until recovery of possession, said : "The suit was a pure money suit and not a suit for recovery of possession of immovable property and for mesne profits under Order 20, rule 12, Civil Procedure code. In such a suit a preliminary decree may be passed for possession and for assessment, but in a pure suit for recovery of money, no decree can be passed for recovery of compensation after the date of the suit upto the date of the decree or after the date of the decree until recovery of possession. This part of the decree should, therefore, be set aside." 43. This part of the decree should, therefore, be set aside." 43. Great reliance was placed by the learned counsel for the plaintiff respondent on the following observations of Mitra, J. in Satish Chandra v. State of West Bengal, AIR 1960 Cal 278 at p. 282 : "Ordinarily the decree in a suit should accord with the rights of the parties as they stand at the date of its institution. But where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate, or that it is necessary to have the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties. It is incombent upon a Court to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made. Leave to amend may be granted under Order 6, rule 17 of the Code of Civil Procedure for this purpose: vide Mulla's Code of Civil Procedure, 12th Edition, page 612. Having regard to the Supreme Court's views expressed in Abdul Majid's case, AIR 1954 Sc 245 , it seems to me that if I come to the conclusion that the order of dismissal should be declared void or ultra vires, there is no difficulty in passing a decree for arrears of salary not only up to the date of institution of the suit but also for periods subsequent thereto." But, in my opinion, so far as the latter part of the observations, which can be said to support the plaintiff-respondent's contention, are concerned, they were obiter in so far as the learned Judge had dismissed the suit and no occasion arose for him to decree any arrears of salary in respect of periods subsequent to the institution of the suit. I am further of opinion that latter part of the aforesaid observations, apart from being obiter, are not correct and would require re-consideration. 44. In the result, the claim of the plaintiff-respondent for compensation in respect the period 1960-61 to 1964-65 is hereby dismissed as it could not have been decreed on the suit as originally laid by an amendment of the plaint. 44. In the result, the claim of the plaintiff-respondent for compensation in respect the period 1960-61 to 1964-65 is hereby dismissed as it could not have been decreed on the suit as originally laid by an amendment of the plaint. As for the claim for compensation for the years 1955-56 to 1959-60, the judgments and decrees of the Courts below are set aside and the case is remanded to the trial Court for giving the parties a fresh opportunity to plead facts and to prove them by such evidence as they may be advised to lead, with advertence to what I have said above. The amendments of the plaint claiming compensation for the years 1960-61 to 1964-65 is also set aside. 45. Costs shall abide the result.