M.Y. Eqbal, J.
1. This appeal is directed against the judgment and decree dated 15.4.1989 passed by the District Judge, Dhanbad, in T.A.No. 74 of 1988 whereby and whereunder the learned lower appellant court (hereinafter referred to as the court below) has allowed the appeal and set aside the judgment and decree dated 12.8.1988 passed by the Munsif, 1st court, Dhanbad, in T.S. No. 139 of 1985 and remanded the matter to the trial court with a direction to decide the question of valuation and to ask the appellant to pay the ad valorem court fee for deciding the question of title in respect of the suit property.
2. The facts of the case are as follows:
The plaintiff-appellant filed Eviction Suit No. 139 of 1985 claiming a relief for eviction of the defendant-respondent from the suit premises and for recovery arrears of rent. The plaintiff-appellant claimed the decree for eviction on the ground of non-payment of rent. The defendant-respondent contested the suit by filling written statement denying the title of plaintiff over the suit property and also the relationship between landlord and tenant. According to the respondent, he never paid rent to the appellant and that the house under occupation of the defendant was constructed by the father of the defendant-respondent on a portion of Plot No. 785 measuring an area of 375 sq.ft. under khata No. 41 of Mouza Mathuria which was recorded as Gairabad land in the last survey and settlement and the defendant and his family members have been residing there by virtue of their own right. During the pendency of the suit the defendant raised the question of valuation and court fee as preliminary issues and the same was decided against him by the trial court. The defendant-respondent challenged the said order by filing the Civil Revision before this Court being C.R.No. 346 of 1987 (R) and the said Civil Revision was dismissed in terms of the order dated 19.10.1987.
3. The learned Munsif after hearing the parties and after considering all the evidence both oral and documentary came to a finding that relationship of landlord and tenant existed between the parties. Learned Munsif also considered the various documents on the question of ownership and decreed the suit of the plaintiff-appellant for eviction and recovery of arrears of rent. Aggrieved by the said judgment and decree the defendant-respondent pre- ferred an appeal before the District Judge, Dhanbad, which was registered as Title Appeal No. 74 of 1988. The appeal was eventually heard by the learned District Judge, Dhanbad, who allowed the appeal in terms of the impugned judgment dated 15.4.1989 and set aside the judgment and decree of the trial court. Learned District Judge took the view that since the learned Munsif has gone into the question of title not incidentlly but in fullfledged manner, it was necessary for the trial court to ask the plaintiff to pay ad valorem court fee and to decide the question of title after faming a specific issue. The plaintiff, therefore, challenged the judgment and order of the learned court below in this appeal.
4. Mr. P.K. Prasad, learned Counsel appearing for the appellant, submitted that the learned lower appellate court has committed an error of lav/ in setting aside the judgment and decree of the trial court and in remanding the matter to it for passing a fresh judgment. learned Counsel submitted that the trial court has framed a specific issue and gave a specific finding that the relationship of landlord and tenant existed between the parties and therefore the suit was decreed although the question of title was considered by the trial court incidentally. In that view of the matter, according to the learned Counsel, the question of valuation and payment of ad valorem court fees does not arise. learned Counsel further submitted that the question of payment of ad valorem court fee is to be determined on the basis of the averments made in the plaint and not on the basis of the pleading of the defendant in the written statement. learned Counsel has relied upon a judgment of this Court in the case of Kailash Verma v. Sushil Kumar Vohra. 1991 (1) PLJR 136.
5. No one appears on behalf of the defendant-respondent despite valid service of notice.
6. From perusal of the judgment of the lower trial court it appear that the learned trial court has framed the following issues:
1. Has the plaintiff any cause of action for the present suit.
2. Is the suit maintainable?
3. Is the suit barred under principle of estoppel, waiver and acquisence?
4. Is there a relationship between both the parties as house owner and tenant exist ?
5. To that any other relief or reliefs the plaintiff is entitled to ?
7. While deciding the issue No. 4 the trial court was fully aware of the legal position that when the title and ownership is chellenged by the tenant is Eviction Suit that the court must consider incidentally title and ownership of the land in question in order to give a right conclusion with regard to the existence of tenancy. The learned trial court has further considered all the documentary evidences including Khatian, Malguzairi receipt, rent receipts, partition deed, assessment register, the order of mutation passed by the Dhanbad Municipality, certified copy of order or Money Suit No. 316/68, certified copy of order passed in B.P.L.E. case and prima facie came to a finding that the ownership and title stands in the name of plaintiff and the defendant-respondent was in occupation of the suit property as tenant. The learned trial court, therefore, on the basis of evidence both oral and documentary has decided the issue of relationship of landlord and tenant in favour of the plaintiff-appellant.
8. From perusal of the impugned judgment and order passed in appeal it appears that the learned lower appellate court relying upon a decision of this Court. is Shiv Shankar Prasad and Ors. v. Barhan Mistry and Ors. 1985 PLJR 358 held that in Eviction Suit if the court goes into the question of title not incidentally but in a fullfledged manner the case should be treated as a regular suit and the plaintiff should be asked to pay ad volorem court fee on the market value of the property.
9. At the very outset I must indicate here that the aforesaid decision of Shiv Shankar Pd. v. Barhan Mistry (supra) does not stand as a good law in view of the fact that the said judgment has been overruled by the Supreme Court in the case Ram Narayan and Anr. v. Atul Chandra Mitra and Ors. : [1994]3SCR196 . The Apex Court held that for the purpose of valuation of suit for determination of court fee payable thereon, what is relevant is the plaint and not the defence taken in the written statement. The Apex Court held that the question of court fee had to be considered in the light of the allegations made in the plaint and this decision would not be influenced either by the pleas taken in the written statement or by the final decision of the suit on merit.
10. The aforesaid judgment of Shiv Shankar Pd. v. Barhan Mistry was also considered by the Bench of this Court in the case of Kailash Verma v. Susit Kumar Vohra 1991 (1) PLJR 136, where this Court while dissenting with the aforesaid decision held that if the plaintiff fails to prove relationship of landlord and tenant and prays for a decree for eviction on the basis of title, the court may give him that relief in that suit in view of Order VII, Rule 7, C.P.C., if the parties have led evidence on the question on title and the plaintiff has not forfeited his right to seek relief on equitable ground.
11. Having regard to the facts and circumstances of the case and the discussion made above, I am of the view that the judgment of the learned lower appellate court cannot be sustained in law Moreover, in view of the fact that the decision of Shiv Shankar Pd. (supra) upon which the learned lower appellate court has decided the question has been overruled by the Supreme Court in the case of Ram Narayan (supra), the impugned judgment is bad law.
12. For the reason aforesaid, this appeal is allowed and the impugned judgment and order passed by the learned District Judge in T.A.No. 74 of 1988 is set aside and the matter is remitted back to the learned District Judge to hear and dispose of the said appeal on merit as expeditiously as possible. There shall be no order as to costs.