Gurusharan Sharma, J.
1. The defendants are the appellants, who have lost in both the courts below. The matter related to eviction, one Munna Pandey from the suit house situated over Survey Plot No. 13, bearing Holding No. 18 within Circle No. 84, Ward No. 20 in Mahallah Kharakuan, Police Station Alamganj of Patna town.
2. According to the plaintiff, she purchased the suit house through registered sale-deed dated 20.6.1975 from Brahmdeo Pandey and came in possession thereof. On 1.9.1975 she inducted the defendant, Munna Pandey as a tenant therein at a monthly rental of Rs. 30/-. He defaulted in payment of rent from March, 1978 onward upto May, 1979 and made himself liable for eviction under Section 12(1)(d) of the Bihar Buildings (Lease, Rent and Eviction) Control, Act, 1977 (hereinafter referred to as 'the Act'). She further claimed to require the suit house for her own use and occupation.
3. The defendant appeared in the suit, filed written statement and contested it. According to him, the plaintiffs/malafidely filed a suit for declaration of title and recovery of possession in the garb of a suit for eviction without payment of ad-valorem court fee on the market value of the suit house.
4. Neither the plaintiff was the owner of the suit house nor the defendant was a tenant therein. There was no relationship of landlady and tenant between the parties. The defendant was living in the suit house in his own right as one of the owners thereof.
5. In fact, the suit house was self acquired property of Hem Narain Pandey, who died leaving behind his four sons, namely, Satyadeo Pandey, Sheo Kumar Pandey, Sheo Swamp Pandey and Sheo Bhajan Pandey and four daughters, namely, Dhurpati Devi, the mother of the defendant, Rajpati Devi, Lakshmi Devi and Kishori Devi. Satyadeo Pandey died leaving behind his widow, Dhurpati Devi and three sons, namely, Brahmdeo Pandey, Basudeo Pandey and Baldeo Pandey and tow daughters, namely, Malti Devi, the plaintiff and Shanti Devi. So, there were two Dhrupati Devi, one was the wife of Satyadeo Pandey and the other was the defendant's mother.
6. Brahmdeo Pandey was full brothers of the plaintiff, Malti Devi. In the aforesaid circumstance, the plaintiff had no right to evict the defendant from the suit house. Neither there was any occasion for default in payment of rent by the defendant nor the plaintiff had any personal necessity of the suit house.
7. In additional written statement filed by the defendant after amendment of plaint, the sale-deed dated 20.6.1975 in favour of the plaintiff was challenged as collusive, showy, fictitious and without consideration, conferring no title on the plaintiff.
8. The trial court decreed the suit holding that there was a relationship of landlady and tenant between the parties and the defendant had defaulted in payment of rent as alleged in the plaint. The defendant was not able to establish his title over the suit premises. The plaintiff required the suit premises in his entirety, as according to evidence the suit house was small in size and accommodation.
9. On appeal by the defendant against the said eviction decree the first appellate court confirmed the findings of the trial' court and held that it was proved that Hern Narain Pandey died some time in the year 1928, i.e. prior to coming into force of the Hindu Succession Act, 1956 and, therefore, the defendants' mother as his daughter did not inherit the estate left by him. The defendant had, therefore no right, title and interest in the suit house. The relationship of landlady and tenant between the plaintiff and the defendant was proved and default in payment of rent by the defendant from March, 1978 to May, 1979 was also proved. The plaintiff got reasonable and bonafide personal necessity of the suit house and she required it for her personal use and occupation.
10. At the stage of hearing under Order 41, Rule 11 of the Code of Civil Procedure while admitting this appeal, this Court framed the following substantial question of law:
Whether the courts below had gone into question of title without payment of ad valorem court fee on the market value of the suit house and whether in absence of the sale-deed dated 20.6.1975 in favour of the plaintiff, question of title could have been decided.
11. A perusal of the plaint reveals that it was a pure suit for eviction under the Act based on the grounds of default of the appellants in payment of rent and personal necessity of the plaintiff. However, the defendant in his written statement challenged the plaintiff's title and claimed his own title over the suit house.
12. It is well settled that jurisdiction of court is decided on the basis of the allegations made in the plaint and it has to be decided accordingly and not upon the averment in the written statement. Merely because the defendant asserted title in himself, the plaintiff cannot be compelled to change the nature of his suit. In the present suit even on the defendant's denial of. his relationship with the plaintiff that of tenant and landlady, the plaintiff did not express her wish to get the question of title decided in instant suit. She did not ask amendments in the plaint nor paid ad-valorem court fee. Even the title deed dated 20.6.1975, whereby she claimed to have acquired the suit house was not brought on record to be marked as an Exhibit.
13. It also cannot be said that the courts below considered the question of full fledged title of the parties in the present case and decided it finally. The defendant's claim of his title over the suit house was gone into only incidentally and the courts below found that he failed to prove his right, title and interest in the suit house for the reason that his alleged maternal grandfather, Hem Narain Pandey, who according to him, had acquired the suit house, died in the year 1928 and so his mother, Dhurpati Devi, daughter, namely the defendant did not inherit his estate.
14. Besides this, there are concurrent findings of fact recorded by both the courts below on the relationship of landlady and tenant between the parties, the defendant's default in payment of rent and the plaintiff's personal necessity to the suit house and as such, this appeal is concluded by finding of fact. It goes without saying that observations and/or findings, if any, on the title of the parties over the suit house are not to operate as res-judicata in a regular suit for title between them for the said house.
15. This Appeal is, accordingly, dismissed with costs throughout.