JUDGMENT
Kasliwal, J.
1. Learned single Judge by order dated July 12, 1985 has referred this case to the Full Bench for decision of the following issues :
1. Whether in a suit based on the relationship between the landlord and tenant, making prayer for eviction on the grounds set forth under Section 13 of the Rajasthan Premises (Control of Rent and Eviction), Act, 1955, a decree for possession can be granted in favour of the plaintiff on the basis of his title?
2. Whether when the present issue is framed mentioning the allegation of the title of the plaintiff also, the defendant asserts his own title and denied the plaintiffs and both the parties led evidence, can it be said that no prejudice is caused to the defendant if the decree for possession is based on proof of the title of the plaintiff?
2. The facts of the case are that Gopal Lal plaintiff respondent filed a suit against Smt. Pushpa Sharma defendant appellant for ejectment of certain residential premises situated in Jaipur City. The suit was based on the ground of default in the payment of rent for more than six months, material alteration in the premises and for reasonable and bona fide necessity of the plaintiff. The defendant in the written statement denied the tenancy as well as the ownership of the plaintiff. The defendant also set up a plea that she was herself the owner of the suit premises. The defendant denied almost all the allegations made in the plaint. The trial Court on the basis of the pleadings of the parties framed as many as 9 issues but we are concerned only with issues Nos. 1 and 8 which read as under :
1. “Whether the plaintiff is the owner of suit premises and the defendant has taken from him the premises shown in para No. 1 of the plaint on rent for Rs. 50/- p.m. on 1-7-72?” (P)
8. Whether the suit is not maintainable and the plaintiff is not able to get the possession of the premises in suit without filing a suit for declaration and possession and paying proper Court Fees? (D)
3. Both the parties led oral and documentary evidence and thereafter the learned Munsif while deciding issue No. 1 held that the defendant was not the tenant of the plaintiff. The Trial Court also held that the plaintiff was the owner of the suit property. Learned Munsif did not consider it necessary to decide other issues as the defendant was not found to be the tenant of the plaintiff. The learned Munsif under issue No. 8 found that no prejudice had been caused to the defendant and therefore the suit can be decreed on the basis of title. Thus on the basis of the finding that the plaintiff had established his ownership of the suit premises, the suit of the plaintiff for possession of the suit property was decreed.
4. Aggrieved by the judgment and decree of the learned Munsif, both the parties filed appeals before the learned District Judge. Learned District Judge by his common judgment dated 28-2-78 disposed of both the appeals. The appeal filed by the defendant was dismissed, while the appeal filed by the plain tiff was allowed in part and it was held that the plaintiff was also entitled to a decree of mesne profits at Rs. 30/- p.m. from 1-7-72 to the date of handing over possession of the suit property to the plaintiff.
5. The defendant then filed a second appeal in the High Court and the learned single Judge referred the case to the Full Bench for deciding the abovementioned issues of law and to decide the entire appeal.
6. The controversy raised in the case is that when a suit is filed for eviction on the basis of relationship of landlord and tenant on the grounds provided under Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, (hereinafter referred to as the Act), can a decree for possession be granted on the basis of ownership and title of the plaintiff, when relationship of landlord and tenant is not held established between the parties?
7. Mr. R. M. Lodha, learned Counsel for the defendant appellant submitted that in a suit for ejectment based on the relationship of landlord and tenant, the question of title cannot be gone into. It was further submitted that even if any issue regarding ownership and title of the suit property is framed, the inquiry in that issue should only be restricted so far it was relevant for deciding the relationship of landlord and tenant It was further submitted that the suit for possession based on ownership and tide is totally different from a suit based on the relationship of landlord and tenant. It has been argued by Mr. Lodha that if the present suit is converted into a title suit, the defendant suffers a serious prejudice because she is deprived of setting up a case of adverse possession, or, that suit was not triable by the learned Munsif, or, that the court fees paid were insufficient and all such other pleas which would have been available to the defendant to contest a suit for possession based on tide. It was further submitted by Mr. Lodha that the suit in substance was filed on the basis of tenancy and the grounds of ejectment were based on Section 13 of the Act, and in these circumstances the plaintiff cannot be permitted to set up a new case based on ownership and title. Mr. Lodha in support of his above contentions placed reliance on Govinda Kumar Sur v. Mohini Mohan Sen, AIR 1930 Cal 42, S. K. M. Sivasubramania Nadar v. S. S. K. Subramania Nadar, AIR 1932 Mad 409, Ms. Abdullah v. Saleha Bi, AIR 1953 Hyderabad 234, Sibsagar Municipal Board, Sibsagar v. Dayal Chandra Barthakur, AIR 1971 Assanr 155. Lekhraj Siddi v. Sawan Singh, 1971 Ren CR 742 : (AIR 1971 Madh Pra 172), and Badri Prasad v. Ganesh Prasad, 1977 Ren CJ 569 : (AIR 1977 SC 2047).
8. On the other hand Mr. S. K. Keshote appeared on behalf of the plaintiff respondent as amicus curiae to assist the Court. Mr. Keshote submitted that the defendant herself had raised a plea in the written statement that the plaintiff was not the owner of the suit premises. The defendant had not only denied the ownership of the plaintiff, but had also set up a clear plea that, she was the owner of the suit premises. On the basis of the above case set up by the defendant, a specific issue regarding title was framed by the trial Court and thereafter both the parties had led evidence and the trial Court decided the issue against the defendant. The defendant having set up a definite case of title, having joined the issue and having led the evidence is not entitled to argue that question of title could not have been decided by the Court in a suit based on tenancy, specially when such issue of title has been decided against the defendant. It was also submitted that there is no question of any prejudice to the defendant when, she herself has raised the question of title in order to non suit the claim of the plaintiff based on the relationship of landlord and tenant. It has been submitted t hat no objection regarding pecuniary jurisdiction of the trial Court can be raised after the final decision of the suit. Reliance in support of the above contentions is placed on Abdul Ghani v. Mussammat Babni, (1903) ILR 25 All 256 (FB). Balmakund v. Dalu, (1903) ILR 25 All 498 (FB). Mulibai v. Vassibai, AIR 1926 Sind 98, Rama Shankar v. Bidhey Khan, AIR 1976 All 155 : 1976 Ren CR 216 and Kolathoor Variath v. Pairaprakottoth Cheriya – Kumhahammad Haji, AIR 1974 SC 689.
9. We have given our careful consideration to the arguments advanced on behalf of both the parties and have thoroughly perused the record.
10. The plaintiff had come forward with a case in the plaint that the defendant had taken certain premises belonging to the plaintiff on rent on 1-7-72 at the rate of Rs. 50 p.m. for putting certain goods temporarily for two months. The defendant was handed over possession and she had agreed to pay Rs. 100/-as advance rent of 2 months within a day or two. The plaintiff did not get any rent deed executed, and subsequently the defendant committed a breach of trust and neither paid any rent nor vacated the suit premises after two months. It was also alleged that defendant made material alterations in the suit premises, and the suit premises were required for reasonable and bona fide necessity of the plaintiff. The defendant totally denied the averments made in the plaint. It was further pleaded that the plaintiff was never in possession of the suit premises. There was a temple of Shivji on the spot and the defendant being Brahmin by caste was doing Seva Puja of the temple for a long time. The defendant was having a room and a Tibara in a dilapidated condition and she herself got the same improved. The defendant never took possession of the suit premises from the plaintiff nor she ever agreed to pay rent at the rate of Rs. 50/- p.m. nor there was any talk to permit the defendant to put her goods temporarily for 2 months. It was further pleaded that there was no question of giving any assurance to execute any rent deed because the defendant herself was the owner of the suit property. In the additional pleas it was further pleaded that the plaintiff had no concern at all with the suit premises nor he was the owner of the suit property and the suit was liable to be dismissed on this ground alone. The trial Court thereafter framed 9 issues, including issues Nos. 1 and 8 us already mentioned above. No objection was raised on behalf of either of the parties that there was no necessity to frame any issue regarding ownership of the suit premises as the suit was based on the relationship of landlord and tenant only.
11. There can be no manner of doubt that where a suit for ejectment is filed on the basis of tenancy and relationship of landlord and tenant, then such suit should not be converted into a title suit based on ownership and the controversy should be decided on the basis of the relationship of landlord and tenant only. But in the present case as already mentioned above the defendant herself came forward with a plea that plaintiff is not the owner and she herself was the owner of the suit premises. Not only that an issue was also framed in this regard and both the parties led evidence and after the decision of such issue having gone against the defendant by the trial Court, the defendant has raised an objection that the issue of title should not have been decided in the present suit which was based on tenancy and relationship of land lord and tenant alone. We have gone through all the cases on which reliance is placed by Mr. Lodha and in none of these cases, the facts were identical to the case in hand before us. There is no case cited by Mr. Lodha in which after a plea taken in the written statement that plaintiff was not the owner but defendant was the owner and thereafter issue having been framed and parties having led evidence and having taken a decision on such issue, may have raised an objection in appeal that question of title could not have been decided in a suit based on tenancy. We do not therefore consider it necessary to discuss every case cited by Mr. Lodha in detail.
12. On the other hand there is a direct case reported in AIR 1976 All 155 : 1976 Ren CR 216, Rama Shankar v. Bidhey Khan, R. B. Misra, J. (as he then was) clearly held as under :
“The plaintiff filed a suit against defendant for ejectment, arrears of rent etc. on the basis that there was a contract of tenancy between him and the defendant. The plaintiff, however, failed to prove the contract of tenancy. The defendant claimed adverse possession and title to the suit premises which plea was negatived by lower courts. It was urged by the plaintiff that even if he failed to prove the contract to tenancy, he was entitled to a decree for possession on the basis of title.
The Court can pass a decree for possession on the basis of title even if the plaintiff had failed to prove the contract of tenancy put up by him provided no prejudice is caused to the other side. In the instant case, both the parties led evidence on the question of title and there was a definite issue framed on the question of title, there is no question of any prejudice being caused to the defendants. In these circumstances, the suit should have been decreed on the question of title though the plaintiff failed to prove the contract of tenancy.”
13. A similar view has been taken in (1903) ILR 25 All 256 (FB) and (1903) ILR 25 All 498 (FB). In (1903) ILR 25 All 256 :
“The defendant denied the tenancy set up by the plaintiff and asserted that she had been in adverse possession for a period of seventeen years. The finding of the appellate Court was that the plaintiff was the owner of the house and that the defendant occupied the house as a friend with the permission of the plaintiff and that the defendant had never before this asserted her title to the house, and that her possession was permissive. On these findings, it was held by the Full Bench that the plaintiff was entitled to a decree for possession notwithstanding that his case had been that the defendant was his tenant.”
14. There can be no manner of dispute that in a suit for eviction on the basis of tenancy, all that need be gone into is whether there is a contract of tenancy between the parties and if the plaintiff fails to prove such contract of tenancy, then the court is entitled to dismiss such suit. But in a case where the question of title has also been gone into and the parties were at issue on the point of title and the parties had led evidence, it would not be just and proper to direct the plaintiff to file another suit for possession on the basis of title. Law Courts always discourage and abhore the multiplicity of suits. The only relevant circumstance in such a case would be whether any prejudice has been occasioned to the other side.
15. Mr. Lodha has contended that if a suit on the basis of title had been filed then the defendant would have shown that her possession was not permissive, that it was a case of adverse possession, that the suit was not triable by the Munsif Court and the Court fees paid were insufficient. There is no question of any prejudice on the above grounds raised by Mr. Lodha. The defendant has clearly come forward with a plea that she herself was the owner of the suit premises. In view of the above plea taken by the defendant there was no question of setting up a case on the basis of adverse possession and in any case when she had joined the issue of title she could have raised this plea also. Apart from that learned courts below while considering issue No. 1 have discussed the evidence in detail and have found that the defendant was not in possession of the suit property up to 1970. The present suit was filed on 21-12-73 and in this view of the matter also there was no ground or justification for taking the plea of adverse possession. The case regarding permissive possession could have been set up by the defendant to non suit the case based on tenancy, but the defendant set up a hostile title in herself. So far as the objection regarding pecuniary jurisdiction is concerned Sub-section (2) of Section 21 C.P.C. clearly lays down that no objection as to the competence of a court with reference to the pecuniary limits of its jurisdiction shall be allowed by an Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest 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. Thu.s in the facts and circumstances of this case, no objection on the ground of any prejudice to the defendant is sustainable.
16. Our answer therefore to the questions referred is : (1) In a suit based on the relationship between the landlord and tenant, making prayer for eviction on the grounds set forth under Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, a decree for possession can be granted in favour of the plaintiff on the basis of his title.
(2) When any issue is framed on the basis of allegation of title of the plaintiff and the defendant asserts his own title and denies the plaintiffs title and both the parties lead evidence without raising any objection, question of prejudice caused to, the defendant may be seen if decree for; possession is to be granted on proof of title of the plaintiff.
17. It is however, made clear that, as a general rule where a suit is filed on the basis of tenancy and relationship of landlord and tenant then such suit should be decided on the basis of tenancy alone, and it should not be converted into a title suit. However, in a given case, as the present one where, the defendant herself sets up a title adverse to the plaintiff and/or does not raise an objection in framing an issue on the basis of title and leads evidence with full knowledge arid the trial Court gives an adverse finding on such issue against the defendant, then the defendant cannot be permitted to advance the plea in the Appellate Court or Revisional Court that no decree for possession can be granted in such a case. It would be a different matter where the trial Court may suffer from inherent lack of jurisdiction not falling within the purview of Section 21, C.P.C. or the defendant may make out a clear case of prejudice with no fault or laches or acquiescence on his part. Such case may be rare, but it would be left to the discretion of the Court and in such rare case the Court may refuse to grant any decree for possession.
18. As learned single Judge has not only referred the legal questions but has also observed that the entire appeal may be decided by this Court and as we have gone through the entire record of the case in detail we find no force in this appeal and it is accordingly dismissed. There will be no order as to costs in this Court.