P.K. Deb, J.
1. The appeal has been preferred by the above-named plaintiff-appellant against the judgment and decree dated 19-6-91 passed by 2nd Additional District Judge, Sitamarhi in Title Appeal No. 25 of 1989 (52 of 1989) affirming the judgment and decree dated 21-4-89 passed by Munsif (West), Sitamarhi in Eviction Suit No. 15 of 1986. The eviction suit filed by the plaintiff-appellant against the defendants had been dismissed by both the Courts below holding thereby that there was no relationship of landlord and tenant between the parties.
2. The case of the plaintiff in the suit that being Karta of the Mitakshra Joint family he managed the properties including the suit properties appertaining to C.S. P. No. 601 having an area of one Bigha five Katha and eight dhoors of village Bahilbara alias Garah within the district of Sitamarhi. As per plaintiffs case one Most. Arzi Ojhain daughter-in-law of Girdhari Jha, one of the co-sharers of C.S.P. No. 601 executed a verna bond dated 1-6-1923 in favour of Maksudan Jha for a Loan of Rs. 900/-. Later on, the plaintiffs father Hari Nandan Jha purchased the equity redemption in the year 1949 from Most Arzi Ojhain and redeemed the verna on 20-4-1949 from Maksudan Jha. But, it is alleged that during the period of that verna, the mortgagee, Maksudan Jha constructed a road in the aforesaid suit plot and had inducted Tulsi Mahara father of the defendant and Bilat Mahra, on a portion of the said plot by constructing houses thereon which is the subject-matter of the dispute. It had also been alleged by the plaintiff that Title Suit No. 60/57 was filed by Hari Nandan Jha in which the defendants' predecessor Tulsi Mahra and Bilat Mahra were also the defendants and they filed a written statement wherein they admitted the title of Hari Nandan Jha and they took Rs. 50/- from Hari Nandan Jha for shifting of their houses by 30th day of Chait 1365 Fasli year. It has again been alleged that when Bilat Mahra and Tulsi Mahra could not make alternative arrangement they took the house on rent at a monthly rental of Rs. 15/- from Hari Nandan Jha, the plaintiffs predecessor and since then the defendants' predecessor, namely, Tulsi Mahra and Bilat Mahra become the tenants of the plaintiffs predecessor and remained in the house as a monthly tenant on payment of Rs. 15/-. It has also been alleged that R.S. Pata No. 1606 and 1607 were carved out of a portion of C.S. Pata No. 601 area being nine decimal and was recorded in the name of defendant's father in Survey Khatain as they were in continuous possession of the same. It has been alleged that the defendant's father stopped payment of rent of house and started trouble over 28 decimal of land in C.S.P. No. 601 which was adjacent to the rented house. The father of the defendants filed a case under Section 144, Cr, P.C. and possession was found in favour of the defendant's predecessor. Then, a notice was served under Section 106 of the Transfer of Property Act asking the defendant's predecessor for vacating the house both for personal necessity and also on the ground of defaulter. While filing written statement defendants contested the suit contending inter alia that the suit as framed was not maintainable, that the plaintiff has got no cause of action and right to sue, that the suit is barred by law of limitation, estoppel, waiver, acquiescence and also by adverse possession. It was contended that the whole story of induction of the defendant's predecessor in the suit plot by mortgagee Maksudan Jha was totally false rather they admitted that the plaintiffs predecessor Hari Nandan Jha was the original owner of the suit land along with others and defendant's predecessor was a labourer of Harinandan Jha. Being satisfied with the service of Tulsi Ram, the predecessor of the defendants, the disputed land was given to the defendant's predecessor 40 years back, and after construction of houses thereon the defendants ultimately are living them since the days of their predecessor. It has also been alleged that the plaintiffs father Harinandan Jha gave 20 decimal of land of C.S. Pata No. 601 to the defendant's father Tulsi Ram on Batai of which the defendants have acquired occupancy right and are cultivating the same. They have totally denied of admitting the title and possession of the plaintiff in Title Suit No. 60/57 and undertaking being given to vacate the house of taking Rs. 50/- from Harinandan Jha. The other stories as. depicted in the plaint regarding stoppage of payment of rent and settlement of the defendant's predecessor as tenant had been denied. Regarding the 144 proceeding, it has been averred in the written statement that on a police report proceeding was started under Section 144, Cr. P.C. and it was converted into a proceeding under Section 145, Cr. P.C. in respect of 28 decimal of land in C.S. Pata No. 601. In that proceeding, the plea of the defendant's possession over the land as Batai was found true and prohibitory orders were passed against the plaintiff not to interfere with the possession of the defendants. A Revision preferred by the plaintiff before the Sessions Judge had also been dismissed. It has further been averred in the written statement during the R.S. operation the surveying authority finding the possession of defendants father recorded his name as Sikmidar by order dated 7-8-1972 passed by A.S.O. under Section 103 of the B.T. Act. But the said order was not mentioned in the. remark column as a result of which a prayer for verification was made under Section 108, Sub-clause (8) of the Bihar Tenancy Act in Case No. 2889/68 and the prayer was allowed by order dated 15-9-69 and it has been averred that the plaintiffs predecessor Harinandan Jha had admitted in this proceeding before the Revenue authorities that the defendant's predecessor were adversely possessing the suit land along with the lands of C.S. Pata No. 601, On the basis of the pleadings of the parties, several issues were framed and the main issue was with respect to relationship of land lord and tenant between the parties. That Issue No. 4 was decided by the original Court against the plaintiff holding thereby that there was no relationship of monthly tenant and landlord between the plaintiff and the defendants and that the defendants had acquired occupancy right. On dismissal of the suit appeal was preferred by the plaintiff in Title Appeal No. 25/89 (52 of 1989) and the appellate Court also after independent scrutiny of the documentary and oral evidence came to the finding that there was no relationship of landlord arid tenant for the purpose of eviction and hence dismissed the appeal.
3. While admitting the second appeal, a Bench of this Court formulated the following question of law: 'Whether the judgment and decree of the Courts below will vitiate for non-consideration that the defendant, respondents have admitted the title of the plaintiff appellant and in such situation they shall be deemed to be in possession as licensee over the suit lands?'
4. It appears that such substantial question. of law was formulated on the basis of the submissions being made from the appellant's Counsel although the position of fact and law are otherwise in the present suit mid appeal thereof. The plaintiff filed the simple suit of eviction terming the defendants as monthly tenant on payment of Rs. 15/- per month. On the other hand, the defendants took they plea that they are not tenant rather they remained in possession of the suit land by their own right adverse to the landlords and also with an alternative plea that they had acquired occupancy right as per provisions of the B.T. Act. During the course of argument, learned Counsel appearing for and on behalf of the appellant has argued the very short point to the effect that when there is admission of title of the plaintiff by the defendants then by invoking the jurisdiction under Order VII, Rule 7 of the C.P.C. for equitable relief the appeal may be allowed and the plaintiff be asked to pay ad valorem Court fee for getting the decree of khas possession by evicting the defendants as they had no right over the property. In this connection, learned Counsel has referred to two judgments of this Court as reported in 1985 PLJR 891 Roghubar Doyal Prasad v. Rameqbal Sah. That was a suit for ejectment of tenant. There was a specific issue framed with regard to acquisition of defendant's title by adverse possession. There was specific finding by both the Courts below that there was no adverse possession in favour of the defendants rather the plaintiff had title over the suit land but the relationship of landlord and tenant could not be proved. In that case, it was held that the plaintiff is entitled to equitable relief under Order VII, Rule 7 of the C.P.C. for recovery of possession on the basis of his title on payment of ad valorem Court fee on the market value of the suit property as there would be no prejudice on the defendants on his plea of adverse possession had been decided negative by both the Courts below. The other judgment referred to is 1953 BLJR 585, Smt. Kasturi Devi v. Kirpal Singh and Ors. In that suit, eviction was sought by the plaintiff on the ground that the defendant was monthly tenant over the house. The defendant took the plea that the plaintiff has no title rather he set up title on himself. Both the Courts below held that the plaintiff had title over the suit property and that the defendants had no title but he was found to be in permissive possession of the plaintiff. Then, it was held that when the plaintiff could prove title and defendant could fail to prove any of the right over the suit property then Order VII, Rule 7 of equitable relief would come into play and the plaintiff can get recovery of possession from defendant on payment of ad valorem Court fee of the suit premises. But, in the present case none of the above two rulings have any application. The admission of the plaintiffs title in the earlier suit had been doubted by both the Courts below rather the original Court held that in the circumstances as there was already recording of the defendant's name as a Sikmidar over the suit property then the defendants had acquired occupancy right under the B.T. Act. The appellate Court did not go to that extent but he had also held that there was no relationship of landlord and tenant and the so-called admission of title by the defendants in the earlier suit was held to be suspicious one when there was already recording of the defendant's name in the record of right during the survey settlement operation. The defendants had taken alternative pleas of both adverse possession and that of acquisition of occupancy right under the B.T. Act. So there was no clear-cut admission of title and possession of the plaintiff over the suit land. It was not found by any of the Courts below that the defendant was either the licensee or is in permissive possession rather the Courts below held that the defendant is also claiming possession by some right either under the B.T. Act or by adverse possession as per admission made by the original landlord Hari Nandan Jha during the survey settlement operation. Thus, when there is no clear cut finding by any of the Courts below regarding title of the plaintiff over the suit land and that the defendants have got no right over the same there is no scope of holding that the defendant is a licensee of the plaintiff and, as such, he is entitled to be evicted through Court of law. There is already some entry in the revenue records in favour of the defendant as is revealed from the impugned judgments although there is no scope by any of the Courts below to determine the rights of the defendant in the suit for eviction over the suit land as the suit was only in respect of the house thereon and even if there is such finding the same would not be binding as there was no specific issue to that effect.
5. In that view of the matter when both the Courts below had held that there was no relationship of landlord and tenant between the two, the suit cannot be decreed in favour of the plaintiff and, as such, the suit was dismissed. There is no scope for grant of any equitable relief under Order VII, Rule 7 of the C.P.C. in the present suit. When the defendants have also claimed some semblance of right over the property in question including the lands where the house is situated, the substantial question of law framed in the suit is not at all applicable in the present circumstances of the case. When there is concurrent finding of both the Courts below that there is no relationship of landlord and tenant between the parties there is nothing to be interfered by this Court in second appeal. When there is no substantial question of law involved in such finding of the Courts below, hence the second appeal is rejected having no force with costs. But, it is made clear that the failure of the present eviction suit would not debar the plaintiff to come up with the fresh suit for title and recovery of possession.