JUDGMENT 1. THIS appeal is from the decision of Ramendra Mohan Datta, J. decreeing the suit of the plaintiff-respondent which was brought against the defendant-appellant on the allegations following : on or about June 8, 1948 the plaintiff deposited with the defendant No. 1, the West Bengal Provincial Co-operative Bank Ltd., at Calcutta within the Ordinary Original Civil Jurisdiction of this Court two pieces of 3% Government Promissory, First Development, Loan 1970-75 bearing Nos. CA 01875s and CA 015382 of the face value of Rs. 25,000/- each belonging to the plaintiff for the purpose of keeping the same in safe custody, collecting dividend thereon and returning the same to the plaintiff when required to do so. By a letter dated January 29,1951, the plaintiff asked for the return, of the said 2 pieces of Government Promissory Notes but the defendant No. 1 unlawfully contended that the said Government promissory Notes belonged to the defendant No. 2, Bagerhat co-operative. Weaving Union Ltd. Inspite of the plaintiff's demand as aforesaid, the defendant No. 1 refused to return the said Government Promissory Notes and to pay the interest thereon to the plaintiff. In the circumstances aforesaid, the plaintiff asked for a declaration that he was the owner of the two Government promissory Notes, for the return of those promissory Notes or in the alternative payment of the value thereof to the plaintiff. The plaintiff also claimed interest due on the said Government Promissory Notes. 2. THE defendant No. 1 alone contested the suit. The deference disclosed by the written statement is as follows : at all material times the plaintiff was and did act as sub-agent of the defendant No. 2. In or about June, 1948, the defendant No. 2 was in debited to the defendant No. 1 in respect of a large sum of money. On or about June 8,1948 the plaintiff as. the duly authorized agent of and on behalf of the defendant No. 2 deposited with the defendant No. 12 pieces of 3% Government Promissory Notes mentioned in the plaint and made over a letter written by the plaintiff on the same late standing, inter aha that the said Government Promissory Notes belonged to the defendant No. 2 and that those Notes were to be kept in safe custody with defendant No. 1 for realisation of interest and for crediting the same to the account of the defendant no. 2. 2. A copy of the said letter was annexed to the written statement and marked with letter "a". The defendant No. 1 in acknowledgement of the said deposit of 2 pieces of Government promissory Notes by the plaintiff for and on behalf of the defendant No. 2 granted a receipt to the plaintiff dated June 8 1948 a copy whereof was also annexed to the written statement and marked with letter "b''. At the time of the aforesaid deposit of the Government Promissory Notes they were endorsed in favour of the defendant No. 1 and they were later renewed in due course in the name of defendant No. 1. Interest due on the Notes, had been realised from time to time and kept in the Suspense Account pending adjustment of the dues of the defendant No. 1 from the defendant No. 2. It is denied that the said Government Promissory Notes belonged to or were the property of the plaintiff or that they were deposited by the plaintiff on the terms alleged by the plaintiff. The defendant No. 1 was also entitled to a lien on the said Government Promissory Notes in respect of the balance of its dues from the defendant No. 2 and claimed the right to retain them till payment thereof. The defendant No. 2 wrongfully failed and neglected to pay its dues to the defendant No. 1. The plaintiff was not accordingly entitled to the return of the said Government Promissory Notes, in any event, the plaintiff while making the deposit intentionally held himself out as a duly authorized agent of the defendant No. 2 the defendant No. 1 having been induced to accept the said Government Promissory Notes from the plaintiff on that footing believing the said representation of the plaintiff to be true and having altered its position accordingly the plaintiff was stopped from, making any claim whatsoever with regard to those Notes. The defendant. No. 1 also denied other allegations contained in the plaint and prayed for the dismissal of the suit. The learned trial Judge found fiat at all material times the said Government Promissory Notes belonged to the plaintiff and not to the defendant No. 2. He also found that the said Government Promissory Notes were deposited by the plaintiff as "bailer" with the defendant No. 1 as "bailer" on the terms stated in paragraph 1 of the plaint. The learned trial Judge found fiat at all material times the said Government Promissory Notes belonged to the plaintiff and not to the defendant No. 2. He also found that the said Government Promissory Notes were deposited by the plaintiff as "bailer" with the defendant No. 1 as "bailer" on the terms stated in paragraph 1 of the plaint. The learned trial Judge's other findings are that the plaintiff did not hold himself out as the duly authorized agent of the defendant No. 2 while depositing the said Notes with the defendant No. 1, that the plaintiff was not stopped from making any claim with regard to the said Government Promissory Notes and that the defendant No. 1 was neither entitled to any lien as claimed on the said Government Promissory Notes nor was it entitled to deny the right, title and interest of the plaintiff therein. 3. IN this view of the matter, the learned trial Judge decreed the suit directing the return of the Government Promissory Notes bearing Nos. CA 037407 and CA 037408 which were obtained on renewal of the aforesaid two Government Promissory Notes. Under (he decree pasted the defendant No. "j was also to pay to the plaintiff all interest realised by it and also costs of the suit. 4. DR. S. Das appearing for the appellant contended that the. Issue No, 1 which is to this effect : "did the Government Promissory Notes mentioned in paragraph 1 belong to the plaintiff ?" should have been decided against the plaintiff on the materials, on record. He further contended that the materials on record satisfactorily proved that the Government Promissory Notes concerned belonged to defendant No. 2. The plaintiff claimed the two Government Promissory Notes concerned to be his. This is the central theme of the plaintiff's entire case and the fare of the suit would mainly depend on the answer to the said issue No. 1. Admittedly, at the time when the two Government Promissory Notes were made over to the defendant No. 1 there was the forwarding letter (part of Ext. A) accompanying those two Government Promissory Noses. That letter is a material documents and is set out hereunder in ex-tense : calcutta, the 7th Jure 1948. To the Manager, bengal Prov. Co-oper Bank Ltd, Dear Sir, i am sending the G P. Note belonging to the Bagerhat Co-operative weaving Union as noted below. A) accompanying those two Government Promissory Noses. That letter is a material documents and is set out hereunder in ex-tense : calcutta, the 7th Jure 1948. To the Manager, bengal Prov. Co-oper Bank Ltd, Dear Sir, i am sending the G P. Note belonging to the Bagerhat Co-operative weaving Union as noted below. Those may be kept in safe custody with you and or realisation of its interest which please credit to the account of Bagerhat Co-operative Weaving Union Ltd. Thanking you, yours faithfully. Sailendra Nath Ghose Sub-Agent Bagerhat Co-operative Weaving Union Lid, 3% Govt. of India Promissory Notes. No. CA 018758 Rs. 25,000/-No. CA 015382 Rs. 25,000/-2 pcs. face value Rs. 50,000/-Sd/- Illegible. In acknowledgement of the said two Government Promissory Notes, the defendant No. 1 issued - receipt (part of Ext A) which is also set out hereunder : "received from Sri Sailendra Nath Ghose, Sub-Agent 2 G. P. Notes belonging to the Bagerhat Co-operative Weaving Union Ltd. of face value of rupees fifty thousand as noted below to be kept in safe custody and collection of interest". 3 p.c. Government of India 1st Development Loan 070-75 Promissory Notes -No. CA 018758rs. 25,000/- No. CA 015382rs. 25,000/-For the West Bengal Provincial Co-operative Brink Ltd. Sd/- Illegible. Manager. Sd. Illegible Cashier. Seal the West Bengal Prov. Co-operative Bank Ltd. 3/2. Dalhousi Sqr. East. Calcutta. 5. ADMITTEDLY, the said two documents, namely the letter accompanying the two Government Promissory Notes and the receipt there for, were then executed respectively by Sailendra Nath Ghose, Sub-Agent Bagerhat Co-operative Weaving Union Ltd. and on behalf of the West Bengal Provincial Co-operative Bank Ltd., by M. Datta its cashier and Nripati Kar its manager. The existence and the execution of these documents were not challenged by either of the contesting parties. But curiously enough, in the plaint there is no reference to those two documents while those two documents were annexed to the written statement and were marked respectively as Annexure "a" and Annexure "b". Further, the case that was sought to be made cut by the plaintiff in course of the recording of evidence found no place in the plaint itself. In course of the trial evidence was sought to be adduced on behalf of the plaintiff for the purpose of proving the fact that the plaintiff was advised by Nripati Kar the Manager of the defendant No. 1. In course of the trial evidence was sought to be adduced on behalf of the plaintiff for the purpose of proving the fact that the plaintiff was advised by Nripati Kar the Manager of the defendant No. 1. the Bank to keep the Government Promissory Notes in the account of Bagerhat Co-operative Weaving Union Ltd., that as those Notes stood in the name of the plaintiff it was suggested by said Nripati Kar that the receipt should be written that way, and that a draft was given to him (the plaintiff) and he signed the letter and delivered the Government Promissory Notes endorsed by him as they stood in. his name. The said forwarding letter, the plaintiff stated in, answer to Question No. 13 was written as drafted by said Nripati Kar but he (the plaintiff) could not remember in whose handwriting it was. This part of the plaintiffs case though very material did not find place in his pleadings. That the plaint was wholly silent about the said forwarding letter and the receipt was also very material. It is in evidence that the plaintiff was an M.A., B. L. and an enrolled Advocate, a Sub-Agent of the defendant No. 2 carrying on business on its behalf a money-lender and a Director of the Bank. It is not believable that a person like the plaintiff would depend on Nripati Kar the Manager of the defendant Bank for drafting the said forwarding letter. Further it is not believable that he would make over such a letter as that after signing the same to the defendant no. 1 particularly when it was clearly stated in that letter that the said two Promissory Notes belonged to the Bagerhat Co-operative Weaving Union. Further it is significant to note that forwarding letter shows that it was signed by the plaintiff as Sub-Agent of Bagerhat Co-operative Weaving Union the defendant No. 2. It is further significant to note that as the case referred to above which was sought to be made out during trial was not there in the plaint there was no issue framed regarding that. The plaintiff did not even include the said forwarding letter and the receipt in the list of documents to be relied upon by the plaintiff. The receipt and any copy of the forwarding letter were neither annexed to the plaint nor produced therein. The plaintiff did not even include the said forwarding letter and the receipt in the list of documents to be relied upon by the plaintiff. The receipt and any copy of the forwarding letter were neither annexed to the plaint nor produced therein. This omission was clearly a deliberate one for those two documents if produced would clearly indicate that the two concerned Government Promissory Notes belonged to the defendant No. 2. Further there was even no attempt made to get the plaint amended for the purpose of including the said case of the plaintiff which was sought to be proved during the recording of evidence. After the said two documents were disclosed in the written statement the proper course for the plaintiff was to get his plaint amended particularly because the plaintiff did not dispute the existence and execution of those documents. The case disclosed in the plaint did not include the case that what with contained in the said letter and the receipt was not correct. Further when Ms. Dutt and Sen the Solicitors on behalf of the plaintiff wrote (letter dated January 29 1951) to the defendant No. 1 asking the latter to return the Government Promissory Notes they said nothing regarding the forwarding letter and the receipt referred to above. Further when in answer to the letter dated January 29 1951 addressed by the said M/s. Dutt and Sen to the defendant No. 1 Nripati Kar the Manager off defendant No. 1 apprised M/s. Dutt and Sen of the fact that from the records of the Bank it appeared that the securities under reference were not being held by the Bank on behalf of Sailendra Nath Ghosh and that they were described as belonging to that Bagerhat Co-operative Weaving Union Ltd. M/s. Dutt and Sen in their letter dated March 2/3rd, 1951 did not speak of any such advice as the one referred to above and alleged to have been given by Nripati Kar to the plaintiff at the time when the Government Promissory Notes were made over to the Bank. On the other hand, it was asserted that the receipt clearly showed that the Notes in question were obtained by the Bank from the plaintiff. The Solicitors spoke of incorrect entries made in the books of the Bank. On the other hand, it was asserted that the receipt clearly showed that the Notes in question were obtained by the Bank from the plaintiff. The Solicitors spoke of incorrect entries made in the books of the Bank. In the circumstances afore said, the only inescapable conclusion that this Court can arrive at is that the case regarding tendering of advice by Nripati Kar, the drafting of the letter by Nripati Kar and the plaintiff signing the letter without following its true import was all an afterthought and such a story as was later sought to he introduced for the purpose of showing that what was stated in the letter and the receipt was incorrect in the circumstances discussed above, wholly un acceptable. 6. THE said forwarding letter and the receipt were very material documents as they would prove the delivery of the Government Promissory Notes to the defendant No. 1, the Bank, and the acknowledgement of this receipt by the Bank Why were those documents not even mentioned in the plaint? they were deliberately suppressed by the plaintiff, for, they would unmistakably indicate that the notes belonged to the defendant No. 2 and they were ledged with defendant No. 1 by the plaintiff on behalf of defendant No. 2. Even after those documents were disclosed in the written statement there was no attempt made on behalf of the Plaintiff to have the plaint amended for purposes of incorporating therein the most vital fact disclosing the circumstances under which they were executed. The omission, in the circumstances of the case is very significant and affect' the plaint case vitally. We have already pointed out that the case that was introduced in course of the recording of evidence was not made out in the plaint. If any evidence is adduced with a view to making out a case which was not disclosed in the plaint and particularly in the absence of any issue such evidence ought not to be relied upon, for, that would be doing injustice to the other party who would be taken by surprise. If any evidence is adduced with a view to making out a case which was not disclosed in the plaint and particularly in the absence of any issue such evidence ought not to be relied upon, for, that would be doing injustice to the other party who would be taken by surprise. In Shri venkataramana Devarua v. State of mysore and others A.I.R. 1958 S.C. 255, the law on this point has been very succinctly and clearly laid down in these words : "the object of requiring a party to put forward his pleas In the pleadings is to enable the opposite party to controvert them and to adduce evidence in support of his case and it would be neither legal nor just to refer to evidence adduced with reference to a matter which was not actually in issue and on the basis of that evidence to come to a finding on a matter which was not in issue, and decide the rights of parties on the basis of that finding. 7. THE Court cannot, therefore decide a case which is not pleaded. In the present case, there was no case made out in the plaint that the said letter and receipt contained incorrect statement. 8. THUS the said forwarding letter and the receipt are two admitted documents and the forwarding letter contains a clear admission on the part of the plaintiff that the two concerned Government Promissory Notes belonged to the defendant No. 2. We have already pointed out that in view of the fact that there was no case made out in the plaint to the effect that the contents of the said letter and receipt were erroneous, at the trial the plaintiff should not have been permitted to prove the case that was at the trial stage of the case sought to be made out by the plaintiff. As there was nothing in the pleading and there was no issue framed in this regard such evidence ought not to have been permitted to be adduced. Further even if it be conceded, though we find it difficult to so concede, that even in the circumstances aforesaid it was open to the plaintiff to adduce such evidence, from the discussions aforesaid it will appear that the plaintiff lamentably failed to establish that the contents of the said letter and the receipt were erroneous. Further even if it be conceded, though we find it difficult to so concede, that even in the circumstances aforesaid it was open to the plaintiff to adduce such evidence, from the discussions aforesaid it will appear that the plaintiff lamentably failed to establish that the contents of the said letter and the receipt were erroneous. The alleged circumstances in which the said letter and the receipt were executed could not be proved. Accordingly, the Court below should have proceeded on the basis of clear admission contained in those two documents. If the concerned Government Promissory Notes stood in the name of the plaintiff, he could have opened an account in his own name and deposited the Notes with the Bank. There is no convincing explanation as to why the plaintiff did not do so. Answers to questions Nos. 118, 119 and 120 put to the plaintiff in course of his cross-examination are material in this regard. On the other hand, it will appear from what Nripati Kar, the witness examined on behalf of the defendant No. 1, stated in answer to question Nos. 67, 68 and 69 that an account was opened on that day by the plaintiff as Sub-Agent of Bagerhat Union on behalf of the defendant No. 2. It appears from the plaintiffs answer to Question No. 81 that there were books of account at Khulna which would prove the acquisition of the Government promissory Notes by the plaintiff and also the arrangement made by the Bank regarding the deposit of the said Notes. Those books of account were not produced at the trial and the explanation offered for non-production of the books of account was wholly unconvincing. It will appear from plaintiffs answer to Question No. 9 that he continued his stay sometime at Khulna, that he used to come "and go back and that with the introduction of the passport system he left Pakistan once for all i.e. in 1950 or 1951. But this answer was proved to be wholly incorrect by what the plaintiff said in answer to Question No. 175. But this answer was proved to be wholly incorrect by what the plaintiff said in answer to Question No. 175. The plaintiff was asked as to why after having addressed the Solicitors' letter on March 2, 1951 to the Bank regarding the Government Promissory Notes, the plaintiff did wait from March 1951 till May 20, 1953 for filing the present suit and the plaintiff stated that at that critical moment there was no sufficient time because he was frequently going to Khulna and coming to Calcutta and that naturally therefore be had to wait for some time. If between the time when in 1951 the Solicitors' letter was addressed to the defendant No. 1 and the date of the filing of the suit sometime in 1953 the plaintiff did frequently visit Khulna where, according to his statement the books of account were lying, there is no reason why those books of account which according to him would have conclusively proved his purchase of the concerned Government Promissory Notes and also the fact of his ownership of those Promissory Notes, were not brought to Calcutta from Khulna during the plaintiff's frequently visits to Khulna since the time of his writing to defendant No. 1 through his Solicitors claiming the concerned Government Promissory Notes. In this regard, it is significant to note that the said receipt was admittedly with him and he produced the same before his Solicitors. That receipt contains the clear statement that the Promissory Notes did belong to the defendant No. 2 which was also in conformity with the contents of the said forwarding letter. The case that was sought to be made out during the recording of evidence is that the plaintiff himself originally purchased the concerned Government promissory Notes. If that were so it could have been easily proved by production of the books of account which according to the plaintiff were there. In stead of producing those books of account the plaintiff through his oral testimony tries to prove his purchase of the said Government Promissory Notes. His answers to Questions Nos. 63 to 76 would clearly show that he lamentably failed to prove his alleged purchase of 'the said Notes. In stead of producing those books of account the plaintiff through his oral testimony tries to prove his purchase of the said Government Promissory Notes. His answers to Questions Nos. 63 to 76 would clearly show that he lamentably failed to prove his alleged purchase of 'the said Notes. In answer to the question as to how and when did he acquire those Government Promissory Notes the witness stated that he purchased it by cash money possibly from the Reserve Bank of India ; Imperial Bank, long ago. He further stated that at Calcutta he had no record to show that he actually purchased those Notes, as according to him, all his papers and books were in Khulna. He further stated that he purchased the said Notes possibly in 1939 or 1940. But it will appear from the materials on record that those Notes were issued in 1945. In answer to the question as to where from he purchased the Notes he said "possibly from the Strand Road Branch" and again in answer to the question as to wherefrom he purchased the Notes his answer was : "possibly from the Imperial Bank, I cannot remember". The plaintiff could not also state what, was the price paid for those two Promissory Notes at the time of their purchase. He also could not remember what was the market price at the time of their purchase. In the aforesaid state of evidence the only conclusion that the Court may arrive at is that the plaintiff failed to prove the alleged purchase of the Notes by him. As the said forwarding letter and the receipt clearly indicate that the concerned Notes belonged to the defendant No. 2 the onus lay heavily on the plaintiff to prove his case that they did belong to him. As the said forwarding letter and the receipt clearly indicate that the concerned Notes belonged to the defendant No. 2 the onus lay heavily on the plaintiff to prove his case that they did belong to him. It is significant to note that even though in 1948 the two Notes were made over to the Bank on behalf of the defendant No. 2 for safe custody and for realisation of interests and for crediting the interest to the account of the defendant No. 2 and even though the plaintiff's case is that they did belong to him there is clear evidence to the effect that till the time when the plaintiff asked for the return of the Notes there was no enquiry made about the realisation of interest and no attempt was made for recovering the interest from defendant No. 1. Further the plaintiff did not produce any material to show how prior to the making over of the Notes to the defendant No. 1 interests on those Notes were realised. When the plaintiff's case is that he was originally the purchaser, he should have called for the correct Register from the Reserve Bank of India. But that was not done it will appear from the answer given by Sunil Kumar Kar who has been in the employment of the Reserve Bank of India since 1953 and was examined on behalf of the plaintiff that there is a book for registering of the Government Promissory Notes and a Register is maintained for that purpose. If the plaintiff was the original purchaser that register should have been called for and it would have been easier to prove that he was the original purchaser of the Notes in question. But this was not done and the Court would be justified in drawing adverse inference that if such register was produced that would have gone against the plaintiff's case that he was the original purchaser. The defense case is that the defendant No. 2 was the original purchaser for, the defendant No. 2 did no appear and counsel and it is not expected that the Manager of defendant No. 1 would now if the defendant No. 2 were the original purchaser or it subsequently acquired the Promissory Notes. The defense case is that the defendant No. 2 was the original purchaser for, the defendant No. 2 did no appear and counsel and it is not expected that the Manager of defendant No. 1 would now if the defendant No. 2 were the original purchaser or it subsequently acquired the Promissory Notes. The learned trial Judge made, on the basis of answer given by said Nripati Kar to Question No. 172, some remarks that this answer clearly suggested that he had no independent recollection. It is to be noted that Mr. Kar who was at the time of the unlaced transaction the Manager of the defendant No. 1 retired sometime in 1965 and he was deposing in 1968. Obviously, he was depending on his re-collection. The answers given by him to question No. 172 ought to be considered along with answers given by him to Questions No. 173 an 174. We should take note of the fact that it is not the ease of the plaintiff mat he signed the forwarding letter dated June 7, 1948 (part of Ext. A) without understanding its contents in the circumstances aforesaid, we and it difficult to accept the learned trial judge's finding that the contents of the later dated June 7, 1948 and the receipt dated June 8, 1948 referred to above were incorrect. In view of the discussions and our findings aforesaid we cannot but hold that the issue No. 1 framed by the trial Court to the effect "did the G.P. Notes mentioned in paragraph 1 of the plaint belong to the plaintiff ? Should have been answered in the negative. We also take the same view with regard to issue No. 2 which is to this effect "were the said g. P. Notes deposited by the plaintiff with the defendant No. 1 on the terms alleged in paragraph 1 of the plaint ?" 9. AS the plaintiff failed to prove his case that the Government Promissory notes belonged to him and the question, the learned trial Judge rightly pointed out, was the main question for consideration in the suit, the Issues Nos. 3, 4 and 5 need not be gone into. 10. AS the plaintiff failed to prove his case that the Government Promissory notes belonged to him and the question, the learned trial Judge rightly pointed out, was the main question for consideration in the suit, the Issues Nos. 3, 4 and 5 need not be gone into. 10. HAVING regard to our findings aforesaid we cannot but answer the Issue No. 6 to the effect: "is the defendant entitled to deny right, title and interest of the plaintiff, if any, in the two Government Promissory Notes in suit : In the affirmative, for, when the plaintiff seeks to recover from, the Defendant No. 1 the two Government Promissory Notes which according to the defense case belonged to the defendant No. 2 and were deposited with the defendant No. 1 by the plaintiff as Sub-Agent of the defendant No. 2 and on its behalf the defendant should have a right to deny the right, title and interest of the plaintiff in those two G. P. Notes. In the circumstances aforesaid the suit ought to fail and the appeal should succeed. The appeal is accordingly allowed and the judgment and decree of the trial Court are set aside". In the circumstances we direct that the two Government Promissory Notes as deposited in the suit pursuant to the order dated 31st July 1968 and lying with the Registrar, O. S., the appellant is at liberty to withdraw from the learned Registrar, The appellant is entitled to costs of this appeal assessed at 6 G. ms. Let the decree in the appeal be drawn up expeditiously. Appeal allowed with costs.