JUDGMENT
Binod Kumar Roy, J.
1. This appeal, at the instance or the plaintiff, is directed against an order of remand of the suit.
2. The relevant facts are short.
3. The suit in question was filed for eviction under the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter to he referred to as ‘the Act”) of the respondent on allegations that he was inducted as tenant but he stopped payment of rent from April, 1983 and despite repeated demands, illegally refused to pay and thus he was habitual defaulter within the meaning of the Act and that the appellant himself requires the suit premises for running his shop as he has no other residential or commercial accommodation at Bcgusarai, besides his son is also unemployed.
4. The respondent filed a written statement praying to dismiss the suit asserting to the effect, inter alia, therein that unless the plaintiff values the suit properties at its market value, which is more than a lac of rupees; the suit cannot proceed; that it is beyond the jurisdiction of the Court; that the suit also cannot proceed without payment of proper Court-fee; that there is no relationship of landlord and tenant between the parties; that the holding in question never belong to the plaintiff or his family rather the defendant had acquired an indefeasible title by coming in uninterrupted possession since more than several 12 years.
5. The Court below framed following five issues, after reeast:
(i) Whether the defendant tenant has got title on over the rent claimed house as averred in his W.S.?
(ii) Whether there is relationship of landlord and tenant between the parties?
(iii) Whether the suit as framed maintainable?
(iv) Whether the plaintiff has got cause of action or right to sue?
(v) Is the suit barred under the provisions of waiver, estoppel, acquisence and limitation?
6. By the Judgment and decree dated 6-7-1985, the suit was decreed and the defendant was held liable for eviction after recording findings in favour of the appellant.
7. Against the judgment and decree aforementioned the respondent went up in appeal which by the impugned order was remitted back to the trial court directing taking further evidence and hear the parties on the question of valuation of the suit property and also to return the plaint if it is found that the valuation is beyond its pecuniary jurisdiction. The appellate court also directed the trial court to obtain ad valorem court-fee from the plaintiff and then, to decide the suit on its merit. In doing so the court of appeal relied upon a decision of this Court in Sheo Shankar Prasad v. Barhan Mistry, 1985 Pat LJR 358, after holding that from the pleadings, evidence and documents it is clear that a direct decision on the question of title of the parties is necessary to be decided and that Jamabandi in regard to the land in question has been directed to be created just before the filing of the suit in favour of the defendant.
8. Mrs. Sheema Ali Khan, learned counsel appearing for the appellant, submits that from the plaint and the issue framed by the trial court it is clear that the plaintiff never wanted adjudication of his title rather he wanted eviction under the provisions of the Act and accordingly the court below has erred in law in remitting back the case to the trial court completely misconceiving the legal position.
9. Mr. Surya Bhushan Prasad Singh, learned counsel appearingforthe respondent, on the other hand contends that the course adopted by the lower appellate court being based on Sheo Shankar Prasad’s case supra was correct and this appeal is liable to be dismissed. He also places reliance on, AIR 1982 SC 1213, 1985 BBCJ (HC) 696 : (AIR 1986 Patna 78) and 1989 Pat LJR (HC) 381.
10. In order to appreciate rival contentions of the parties, it is necessary to look into the plaint as it is a settled law that the jurisdiction of the court depends on the substance of the cause of action (bundle of facts) stated in the plaint (see Vasudev Gopalkrishna Tambwekar v. Board of Liquidators, AIR 1967 SC 369 & Raizada Topandas v. Gorakhram Gokulchand, AIR 1964 SC 1348). From the plaint it is clear that the suit was under the provisions of the Act and not a general suit in which the plaintiff wanted adjudication of his title from the court.
11. From the Written Statement it is clear that it was the defendant who asserted title in the suit properties on various grounds including acquisition of title by adverse possession.
12. Section 7(X1) of the Court-fees Act runs as follows:
“(xi) Between landlord and tenant — In the following suits between landlord and tenant :-
(a) For the delivery by a tenant of the counterpart of a lease,
(b) to enhance the rent of a tenant having a right of occupancy,
(c) for the delivery by a landlord of a lease,
(cc)for the recovery of immovable property from tenant, including a tenant holding over after the determination of a tenancy,
(d)to contest a notice of ejectment,
(e) to recover the occupancy of immovable property from which a tenant has been illegally ejected by the landlord, and (“and” omitted in U.P.)
(f) for abatement of rent–(g) for commutation of rent, and (h) for determination of rent–according to the amount of the rent of the immovable property to which the suit refers, payable for the year next before the date of presenting the plaint, (except in the case of suits falling under Clause (h) in which, according to twice the amount claimed by the plaintiff to be the annual rent– U.P.)
13. Section 8 of the Suits Valuation Act reads as follows:
“Court-fee value and jurisdictional value to be the same in certain suits — Where in suits other than those referred to in the Court-fees Act, 1870 (7 of 1870), Section 7, paras, (v), (vi) and (ix), and para, (x) Clause(d), court-fees are payable ad valorem under the Court-fees Act, 1870, the value as determinate for the computation of court-fees and the value for purposes of jurisdiction shall be the same.”
14. In Tata Iron & Steel Co. Ltd. v. Mrs. Gouribala Devi, 1988 Pat U R 292, a division bench of this Court, when a defendant denied the title of the plaintiff in an eviction suit filed under the provision of the Act and set up his own title on the basis of adverse possession, held that such a suit would be governed by Section 7(xi)(cc) of the Court-fees Act.
15. In the aforementioned view of the matter there cannot be any doubt that the instant suit was governed by Section 7(xi)(cc) of the Court-fees Act and that only one year rent was to be valued.
16. In Sheo Shankar Prasad’s case (1985 Pat LJR 358), it appears that by placing reliance on the judgment dated the 7th April, 1984 in Second Appeal No.467 of 1961, and of some other cases, it was observed that if the court goes into the question of title and incidentally but in a full fledged manner, the plaintiff should be asked to pay ad velorem court-fee which was not done. There appears to be a typographical mistake in mentioning the number of the second appeal. The correct number is Second Appeal No. 457 of 1981. From the judgment of Second Appeal No. 457 of 1981 it appears that at the second appellate stage the plaintiff, who was the appellant and whose suit was dismissed and the court of appeal below had refused to allow amendment of the pleading in regard to question of title, on a request made before this court, his prayer for amendment of the plaint introducing the question of title was allowed further permitting to plaintiff to pay ad valorem court-fee. This is apparent from paragraph 4 of the judgment. Paragraph 5 of the judgment refers to the judgment of S.A. No. 39 of 1980 disposed of on 14-4-1984. The relevant part of the judgment of Second Appeal No. 39 of 1980 runs as follows:
“6. I have gone through the judgment of the Court below, and it is manifest that before the court undertakes to decide the issue of title they should have permitted the plaint to be properly amended, and additional court-fee to be paid thereon. Learned counsel for the respondent contended that since this step was not taken the parties did not lead their evidence in full on the question of title. He has, therefore, rightly suggested that the matter should go to the trial court for this purpose.
7. Mr. Shree Nath Singh appearing on behalf of the appellant raised several grounds for setting aside the finding of fact. He said that several important pieces of evidence and circumstances considered by the trial court have been overlooked by the appellate court and the learned additional District Judge also committed errors of record. He also therefore prayed for setting aside the decision of the lower appellate court and for remanding the case for fresh consideration. He further suggested that the matter may be sent back to the lower appellate court instead of the trial court.
8. After going through the entire circumstances 1 am of the view that the suggestion made by Mr. Verma is appropriate, and the case ought to go back to the trial court with fresh opportunity to the parties to lead further evidence. Accordingly, the judgment of the lower court as well as the decision of the trial court are set aside, and the matter is remanded to the trial court. The parties will he entitled to further cross-examine the witnesses who have already been examined, and the court shall summon them to appear for fresh cross-examination, if a prayer is made to that effect. The court below will also allow the parties to lead any further evidence relevant to the question of title. But before taking any further steps the plaintiff will be permitted to suitably amend the plaint. The court below shall assess the amount of court-fee payable on the plaint on the basis that the plaintiff has sued for title. The second appeal is allowed in the above terms. There will be no order as to costs in the suit up to the present stage (i.e. the costs of all the three courts). The trial court will decide the question of payment of costs hereafter while disposing of the suit finally.”
It is thus clear that the aforementioned second appeal was also remitted at the instance of the plaintiff who wanted adjudication of his title.
17. Section 21(2) of the Code of Civil Procedure runs as follows :
“(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the court of first instance at the earlier possible opportunity, and in all cases where issues are settled, at or before such settlement and unless there has been a consequent failure of justice.”
From the perusal of the aforementioned provision it is clear that the question in regard to valuation has to be raised at the earliest opportunity and not at a later stage in appeal or a second appeal unless it caused prejudice to the defendant. In the suit in question it is clear that the question of its valuation was not even put in issue at the trial stage. Even the question of Court-fee was also not put in issue. In the aforementioned view of the matter, it was not permissible for the defendant (respondent herein) to raise the question of valuation of the suit in appeal.
18. The judgments of this Court in 1985 Pal LJR 358, S. A. No.457/81 (Sheikh Abdul Humid v. Sheikh Abdul Jabbar) and S.A.
No. 39 of 1980 (Ashok Kumar v. Jagarnath Hajam) are of no help to Mr. Singh as Section 21(2) of the Code of Civil Procedure was not considered therein besides from the facts it is clear that the plaintiff of these cases wanted an adjudication of his title in the suit under the Act itself.
19. Mr. Singh also places reliance on paragraphs 17 and 18 of a recent judgment of this Court in Champa Lal Sharma v. Smt. Sumita Maitra, 1989 Pal LJR (HC) 381. That case, if at all, is an authority for the proposition that in the event of the failure on the part of the plaintiff to prove the relationship of landlord and tenant the only course left open to him is to file a suit seeking declaration of his right, title and interest and to pray for a decree for recovery of possession of the suit premises on payment of ad valorem court-fee.
20. In Raghubar Dayal Prasad v. Ram-ekbal Sah, 1985 BBC) (HC) 696 : (AIR 1986 Patna 78) relied upon by Mr. Singh, a division bench held to the effect that if in a suit for eviction the plaintiff wants an adjudication in regard to his ownership of the suit premises in that event he shall have to pay court-fee on an ad voleram basis and that in view of Section 11 of the Suits Valuation Act and the decision of the Supreme Court in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, it would not be necessary for the lower appellate court to direct return of the plaint merely because the value of the suit would be beyond the pecuniary jurisdiction of the learned Munsif who tried it.
21. In fairness to Mr. Singh I also must refer to Devidas v. Mohan Lal, AIR 1982 SC 1213, relied upon by him. The said judgment is an authority for the proposition that in a suit for eviction simpliciter it is permissible for a tenant to challenge the validity of the sale deed executed in favour of a landlord alleging non-acquisition of any right, title or interest in the suit properties on the ground that in reality there was no sale and that the deed was merely a farzi transaction.
22. Relying upon the principle of law engrafted in Section 11 of the Suits Valuation Act and the decision of the Supreme Court in
Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, and following the division bench decision of our own High Court in Raghubar Dayal’s case (AIR 1986 Patna 78) supra 1 too hold that since there was no prejudice to the respondent the lower appellate court was under no obligation to return the plaint.
23. As already indicated it is a settled law that the jurisdiction of the court is decided on the basis of the allegations made in the plaint and not on the basis of the averments made in the written statement. In the aforementioned view of the matter also the plaintiff could not be compelled to change the nature of his simple suit for eviction under the provisions of the Act to a general suit for eviction. It was the defendant who had asserted title in himself and it was thus open for the plaintiff to lead evidence in rebuttal to show that the defendant had not any title.
24. It is also a settled law that creation of lamabandi does not create any title under Section 34 of the Evidence Act it has only a corroborative evidence. The Court of appeal below had erred in remitting back taking into account the fact of opening of Jamabandi in favour of the defendant.
25. For the reasons aforementioned, I am of the view that the court of appeal below has committed an apparent illegality in remitting back the case to the trial court with the liberties aforementioned.
26. In the result, this appeal is allowed and the impugned order of remand is set aside and the case is remitted back to the 3rd Additional District Judge who is directed to take up T.A. No. 18 of 1985 for its hearing 10 of 1986
and disposal in accordance with law. Since the suit in question was filed under the provisions of the Act and it has remained pending by now for six years, it would mete and proper to direct the parties to appear before the court of appeal below and accordingly, I direct them to appear on 5th February, 1990 and on that day the appellate court shall fix a date of hearing and proceed to dispose of the appeal.
27. In the peculiar facts and circumstances, there shall be no order as to cost. Let the records be sent down.