S.B. SIAHA, J.

(1.) This application under Section 14 (8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter to be referred to and called, for the sake of brevity, as the said Act) arises out of a judgment and decree dated 30th August, 1990 passed by Md. Zafar Imam, 3rd Additional Munsif, Giridih in Eviction Suit No. 26/6 of 1988-90.

(2.) The plaintiff-opposite party filed the aforementioned Eviction suit against the defendants/petitioners alleging therein that the defendants are their tenants and he requires the suit premises for his personal occupation bona fide and in good faith.

(3.) The fact of the matter lies in a very narrow compass. The plaintiff-opposite party has contended that one Muni Rai son of late Kheman Rai was originally the owner of the lands and house bearing Giridih Municipality Holding No. 343 (old) and 514 (new) Ward No. 1 situated at Mouza Makatpur, Giridih. Said Muni Rai sold the aforementioned holding to one Shiva Shankar Mahto and Somman Mahto alias Chutari Mahto son of Dilo Mahto by virtue of a registered deed of sale dated 31-3-1973. Shiva Shankar Mahto died leaving behind him his wife and son Tip Narain Singh, who later sold 2 kathas 14 chhataks of land along with house standing thereon to Luxman Ram by virtue of a registered deed of sale dated 4-12-1968 Luxman Ram in turn, sold the said piece of land to the plaintiff by virtue of a registered deed of sale dated 3-9-1975 for valuable consideration and put the plaintiff in possession thereof. It is the further case of the plaintiff that aforementioned Somman Mahto alias Chutari died leaving behind his wife Mosst. Bhagia who sold an area of one katha of land to one Bhatani Devi by virtue of a registered sale deed dated 3-12-1966. Bhatani Devi in turn sold the said land along with house standing thereon to the plaintiff by executing a registered sale-deed dated 23-9-1969 and put the plaintiff in possession thereof. It is also the case of the plantiff that later on in order to meet some legal necessity, aforementioned Mosst. Bhagia and one Ramchandra Mahto, wife and son of late Sonaman Mahto alias Chutari Mahto also sold 1 katha 61/2 dhurs of land along with a house standing thereon to the plaintiff by execution of a sale-deed dated 10-4-1975 over which the plaintiff came in possession. Thus the plaintiff by virtue of aforementioned sale-deeds dated 23-2-1969, 3-9-1975 and 10-4-1975 has acquired right, title and interest as also possession over the entire 4 katbas 14 chataks and 61/2 dhoors of land.

(4.) On the other hand, the case of defendant/petitioners is that the plaintiff/opposite party has no right, title and interest over the suit property. They denied that Sonman Mahto had any alias name Chutari Mahto, rather Shiva Shankar Mahto, Sonman Mahto and Chutari Mahto were three different persons and full brothers According to them holding No. 343, Ward No. 1 was acquired by Shiva Shankar and Sonman jointly. Chutari had already separated and as such he was never in possession over the said holding Sonman died in state of jointness and his share was inherited by Sheo Shankar Mahto who came in exclusive possession over the said holding. After the death of Sheo Shankar, his son Tip Narayan inherited his property and got his name mutated in respect of holding No. 343 (new 514) Ward No. 1 on 29-1-1965.

(5.) The defendants have also contended that it is also incorrect that Tip Narayan Singh in the capacity of katra of the joint family sold 2 kathas 14 chhataks of land to Laxman Ram and Laxman Ram in turn sold the same to the plaintiff and put him in possession. It is the case of defendants that there was no legal necessity in the joint family and no consideration was paid to Tip Narayan Singh on account of the alleged sale-deed dated 4-12-1968 and Laxman Ram never came in possession of the land. Likewise the plaintiff has also not come in possession of the land. Both the sale-deeds aforementioned are illegal, inoperative without consideration and null and void. The defendants have also dented that Mosst. Bhagia was the wife of Sonraan, rather she was the wife of Chutari. Mosst. Bhagia has never executed the sale-deed dated 2-12-1966 to Bhatani Devi and even if she did so, it was without any right and authority. They further denied that Bhatani Devi ever came in possession of the said land or that she executed any sale-deed dated 23-9-1969 in favour of the plaintiff. It was also asserted that the sale-deeds dated 2-12-1966, 23-2-1969 were illegal, inoperative, without consideration, void and sham transactions. It is also incorrect that Mosst. Bhagia and Ram Chandra Mahto sold 21/2 acres of land and house standing over it to the plaintiff by executing sale-deed dated 10-4-1975. The said sale-deed had never been executed by Mosst. Bhagia and Ram Chandra Mahto and even if they did execute the sale-deeds the same was without any right. The defendants have denied that the alleged sale-deeds dated 23-9-1963, 3-9-19/5 and 10-4-1975 conferred any right, title, interest or possession over the lands in favour of the plaintiff.

(6.) The defendants further case is that Tip Narayan Singh paid all the rent and taxes for the suit land till his death and obtained receipts therefor. On the death of said Tip Narayan Singh, the defendants have come in possession over the said holding including the premises in suit in their own rights as absolute owners, and have been continuing in possession on the said holding No. 343, Ward No. 1 to the knowledge of the plaintiff, Mosst. Bhagia and Ram Chandra Mahto right from the year 1968 and even prior to (hat had perfected their title by adverse possession as well. The right, title interest of the plaintiff, Mosst. Bhagia and Ram Chandra Mahto, if any, was extinguished by efflux of time.

(7.) The defendants have further stated that Shiv Shankar Mahto and Sonman Mahto had acquired the holding but Tip Narayan Singh has never transferred the same to alienate the share of defendant No. 3 and he has no such right.

(8.) Learned court below in view of the contention of the parties aforementioned framed the following issues :

(i) Has the plaintiff got cause of action for suit (ii) Is the suit maintainable in its present form (iii) Is there existing relationship of landlord and tenant between the parties (iv) Is the suit property properly valued and the court-fee paid sufficient (v) Has the plaintiff got valid title to the suit land (vi) Does the plaintiff require the suit premises for his own use and occupation

(9.) With regard to issue No. (v), the learned court below held that the plaintiff has prima facie title to the suit holding and land. With regard to issue No. 3, learned trial court held that the plaintiff has asserted his title to the suit premises and suit holding by virtue of purchase whereas the defendants have asserted their title by way of inheritance. In view of the findings in respect of issue No. (v), the defendants are residing in the suit premises either in permissive possession or as tenants. With regard to the question of relationship of landlord and tenant ths learned trial court held that there exists relationship of landlord and tenants between the parties.

(10.) With regard to the valuation of the suit, the learned trial court held that the plaintiff has filed this suit for eviction and accordingly valued the suit at Rs. 24,00. The plaintiff has not valued this suit for obtaining a decree for declaration of title, and as such, according to the trial court, the suit as valued is proper and the court fee paid is sufficient.

(11.) With regard to issue No. (vi), the learned court below held that the plaintiff has been able to prove his bona fide requirement in respect of the suit premises. Learned trial court also decided other issues in favour of the plaintiff.

(12.) Mr. Raj Nandan Sahay, learned counsel appearing for the petitioner, has submitted that in the facts and circumstances of this case, learned court below could not have decided the question of title without asking the plaintiff to pay ad valorem court fee on the value of the property in suit. Learned counsel further submitted that if the valuation of the suit property as put forth by the petitioners was accepted, the trial court could have no pecuniary jurisdiction to try the suit and in that view of the matter, the suit must be held to be not maintainable. In this connection, learned counsel has strongly relied upon decisions of this Court in Sheo Shankar Prasad and others v. Barhan Mistry and others, 1985 BLJR 358 ; Raghubar Dayal Prasad v. Ramekbal Sah reported in 1985 PLJR 891 and Budhu Mal v. Mahabir Prasad and others reported in AIR 1988 SC 1772 .

(13.) Learned counsel further submitted that in this case, the petitioners have questioned the title of the plaintiff on more than one grounds. According to the petitioners, Tip Narayan Singh being merely a member of the joint Mitakshra Coparcenery could not have transferred his right, title and interest without the consent of the other co-parceners Learned counsel in this connection has referred to Sections 260 and 268 of the Mullahs Hindu Law. It was further submitted that even the deed of sale dated 4-12-1968 was not acted upon as no consideration was paid by Laxman to Tip Narayan Singh and on that ground also the deed of sale was void.

(14.) Learned counsel further submitted that in any event there was a serious dispute as to whether Sonman and Chutari are the same persons inasmuch as they are found to be different persons, as claimed, the plaintiff cannot be said to have desired right, title and interest in respect of the entire suit lands.

(15.) Mr. Sahay further submitted that according to the defendants Chutari separated from his other brothers in the year 1934 ; where as Sonman died issueless in 1941. Learned counsel fur her submitted that in this case the statements made in the plaint are contrary to the recitals made in the deed of sale dated 4-12-1968 (Ext. 2/B). Learned counsel also submitted that in any event as the petitioners have also claimed title by adverse possession, lean ed court below was b und to consider that aspect of the matter and thus the said question could not have been decided without payment of advalorem court fee by the plaintiff and in this view of the matter the learned court below misdirected itself in passing the impugned order. 15-A. Mr. N. K. Prasad learned counsel appealing for the plaintiff- opposite party, on the other hand, submitted that in the instant case, admitedly, Tip Narayan sold his right, title and interest to one Laxman Ram as far back as on 4-12-1968 who in turn sold his right, title and interest to the opposite party by virtue of a registered deed of sale dated 3-9-1975. Learred counsel submitted that if the deed of sale executed by Tip Narayan was void for any reason whatsoever, there was absolutely no reason as to why the etitioners did not challenge the said transaction for a period of more than 20 years. Learned counsel in this connection has farther submitted that no only Tip Narayan became a tenant under the plaintiff, but other persons who were inducted as tenants by the plaintiff in other portion of the said holding had all along been paying rent to him. Tn this connection, learned counsel has referred to the judgment and decree passed in Eviction Suit Nos. 27 and 30 of 1988 dated 12-6-1989 which were marked as Exts. 6 and 6/A in which a decree was passed in favour of the plaintiff/opposite party as against another tenant. According to the learned counsel, the said judgment is also admissible in evidence under Section 13 of the Evidence Act.

(16.) Learned counsel further submitted that in law the plaintiff was entitled to file a suit for eviction on the ground of his personal necessity and in view of Section 14 of the Act, the special procedures laid down therein were required to be followed. If in such a suit, a question of tide is raised by the defendant, the same has to be decided in the said suit itself and while determining an issue of relationship of landlord and tenant, the court will be entitled to decide the question of title of the plaintiff incidentally.

(17.) Learned counsel with reference to the definition of landlord as contained in Section 2 (d) of the Act, submitted that as a person who is entitled to receive rent is also a lan lord, the question of title may also fall for consideration in simple suit for eviction. According to the learned counsel, therefore, the objection of the petitioners that the title of the plaintiff could not have been decided without payment of ad valorem court fee on the valuation of the suit property is not correct. Learned counsel in this connection has placed strong reliance on a recent decision of this Court in Kailash Verma and others v. Sushil Kumar Vohra reported in 1991 (1) PLJR 136.

(18.) The main question which, in view of the rival contentions of the parties, as noticed hereinbefore, arises for consideration in this application is as to whether in a suit for eviction, wherein special procedures laid down under Section 14 of theare to be followed, a complicated question of title can be decided The other question which would fall for consideration is as to whether such a question can be decided only on payment of court fee on the valuation of the suit irrespective of the fact as to whether, the court will have no pecuniary jurisdiction to try the same if a suit for declaration of title and recovery of possession was filed in respect of the same property.

(19.) The said Act was enacted to regulate the letting of a building and the rent of such building and to ptevent unreasonable eviction of tenants therefrom in the State of Bihar as would be evident from the preamble thereof.

(20.) Section 11 of the said Act prohibits eviction of a tenant except in execution of a decree passed by the coutt on one or more of the grounds mentioned therein. One of the grounds as contained in clause (c) of Section 11 (1) of the said Act for eviction of a tenant in terms of the said provision is:

"Where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord."

From a perusal of the said provision, it woud be evident that a suit for eviction can be filed by a landlord on more than one grounds as specified therein. Section 14 of the Act, however, provides for a special procedure for disposal of cases for eviction on the ground of bana fide requirement or on the ground of expiry of the period of lease as specified in clause c or clause c of sub-section (1) of Section 11.

(21.) Section 14, therefore, carves out an exception from the general rule that in a suit for eviction filed by the landlord against tenant, the procedures laid down under the Code of Civil Procedure would be followed.

(22.) It is now well-settled that special procedure laid down under Section 14 of theshould be taken recourse to only if a suit is filed on a ground mentioned in clause c or V of Section 11 (1) of the. Reading the the provisions of Section 14 of theas a whole, it is evident that special procedures laid down therein have to be taken recourse to only if the conditions precedent therefor exist. Sub-section (2) of Section 14 provides that the court would issue summons prescribed form in every suit referred to in sub-section (1) without delay. In terms of sub-section (3) of Section 14, the court shall, in addition to, and simultaneously with, the issue of summons for service on the tenant or tenants also direct the summons to be served by registered post with acknowledgment due addressed to the tenant or his agent empowered to accept the service at the place where the tenant or his agent actually and voluntarily resides. If the circumstances so require, the Court may also direct the publication of the summons in the official Gazette or in newspapers having circulations in the locality in which the tenant is last known to have resided or carried on business or personify worked for gain. Clause (2) of sub-section (3) of Section 14 provides that when an acknowledgement purporting to be signed by the tenant or his agent is received back with an endorsement purporting to have been made by a postal employee to the effect that the tanant or his agent has refused to take delivery of the registered article, the court may declare that there has been a valid service of summons. Sub-section (4) of Section 14 provides that the tenant has to obtain leave from the court to contest the prayer for eviction by filing an affidavit stating the grounds therefor. Sub-section (5) of Section 14 provides as follows: -

"The Court shall give to the tenant leave to contest the suit if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for eviction on the grounds specified in clause (o) and (e) of sub-section (1) of Section 11."

Sub-sections (7) and (8) read as follows : -

"7. Notwithstanding anything contained in the Code of Civil Procedure, 1908 (V of 1908) or any other law, the Court while hearing a suit under this section shall follow the practic and procedure of a Court of Small Causes including the recording of evidence.

8. No appeal or second appeal shall lie against an order for the recovery of possession of any premises made in accordance with procedure specified in this section : Provided that on an application being made within sixty days of the date of the order or eviction the High Court may for the purpose of satisfying itself than an order under the section is according to law call for the records of the case and pass such order in respect thereto as it think fit."

(23.) From the provisions of Section 14 of the Act, therefore, it is clear that the practice and procedure of the Court of Small Causes including the matter relating to recording of evidence will have to be followed by the court. Section 14 is a special provision. The said provision shall, therefore, prevail over the general provisions contained in the said Act even in relation to the procedural matters. Sub-section (7) of Section 14 of thecontains a non-obstante clause. In a suit which will, thus, be covered by Section 14 of the Act, only the practice and procedure of a Court of Small Causes have to be followed and not the regular procedure as envisaged under the Code of Civil Procedure.

(24.) Mr. Sahay, as noticed hereinbefore, relying upon a decision of the Supreme Court in Budhu Mal v. Mahabir Prasad and others reported in AIR 1988 SC 1772 has submitted that in view of Section 23 thereof, where a question of title in relation to the immovable property arises for consideration, the court will have no option but to return the plaint, to the plaintiff for being filed before a civil court in a properly constituted suit.

(25.) Section 23 of the Provincial Small Causes Courts Act reads as follows : -

"Return of plaints in suits involving questions of title : (1) Notwithstanding anything in the foregoing:portion of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend upon the proof or disproof of a title to immovable property or other title which such a court cannot finally determine, the Court may at any stage of the proceedings return the plaint to be presented to a court having jurisdiction to determine the title. (2) When a court returns a plaint under sub-section (1) it shall comply with the provisions of the second paragraph of Section 57 of the Code of Civil Procedure and make such order with respect to costs as it deems just and the Court shall, for the purposes of the Indian Limitation Act, 1877, be deemed to have been unable to entertain the suit by reason of a cause of a nature like that of defect of jurisdiction,"

Section 23, therefore, bars a suit in which a question of title in relation to the immovable property is involved. This aspect of the matter shall be considered later on.

(26.) In a suit for eviction under the provisions of the said Act, the plaintiff is bound to prove the relationship of landlord and plaintiff. In other words, the plaintiff must prove that he is landlord in respect of the premises in suit which is being occupied by the defendant as a tenant. In a suit for eviction, however, the defendant is entitled in law to take defences other than qua tenant.

(27.) In a suit, therefore, where the plaintiff has failed to prove the relationship of landlord and tenant, normally his suit is to be dismissed. However, courts some time on equitable considerations by invoking the provisions of Order VII Rule 7 of the Code of Civil Procedure may grant a decree for eviction as against the tenant on the basis of the general title of the plaintiff.

(28.) An instance, where such a decree can be passed, will be a case where the plaintiff may fail to prove the relationship of landlord and tenant but the evidence brought on record might show that the defendant was a licensee of the plaintiff being in permission possession thereof. In respect of such a case, this Court in Guari Sao and others v. Ram- kishun Sao alias Ram Kishun Das and others reported in 1968 BLJR 67 held that despite failure of the plaintiff to prove the relationship of landlord and tenant, a suit for eviction may be decided in favour of the plaintiff on the basis of his general title. Again in Ramchandra Sah and others v. Chotan Sah reported in 1971 BLJR 186 this Court held that in such an event, the plaintiff will have to pay ad valorem court fee on the valuation of the property and such a decree may be passed on payment of such fee by the plaintiff, by the court irrespective of the fact as to whether it would have pecuniary jurisdiction to try the suit or not.

(29.) The aforementioned decisions were followed by this Court in Sheo Shahkar Prasad v. Barhan Mistry and others reported in 1985 PLJR 358 and a Division Bench of this Court in Raghubar Dayal Prasad v. Ramekbal Sah reported in 1985 PLJR 891.

(30.) There cannot be any doubt that in a case which a plaintiff proves the existence of relationship of landlord and tenant, a suit for eviction has to be decided without going into the question of title. However, in a case where the relationship of landlord and tenant as such is not decided and the defendant question the title of the plaintiff, in a given case, it may be open to a court to consider the desirability of grant of a decree in favour of the plaintiff on the basis of his general title upon demand of ad valorem court fee on the market value of the properties involve in the suit.

(31.) The Division Bench in Raghubar Dayals case (supra), however, did not consider the question as to whether in the event if it be held that the market value of the property involved in the suit would beyond the pecuniary jurisdiction of the court, in such event, whether the court can consider question of title or not. Jurisdiction of the court, inter alia includes the pecuniary limits of the subject-matter of the suit. In a case where a a court tries a suit which is beyond its pecuniary jurisdiction, its decision will be a nullity. Such a decision will also not operate as res judlcata.

(32.) In Swami Premanaada Bharathi v. Swami Yoganandra Bharathi and another reported in AIR 1985 Ker 83 , a Division Bench of the Kerala High Court stated the law thus : -

"The decision of Madras High Court in T. S. Pichu Ayyangar v. Ramamja, AIR 1974 Mad 756 : takes the view that the order passed by the lower court in this case dated 21-12-1974 (as upheld in C. R. P. No. 41/1975) is upon to attack, in the appeal filed from the final decree, since the order impugned affects the decision of the case. The said decision has been followed in Subba Reddiar v. Seetharaman, AIR 1972 Mad 421) Counsel for the 1st plaintiff, Sri P. Sukumaran Nair, contended that the decision of the Madras High Court in Pichu Ayyangars case, AIR 1940 Mad 756 considered the matter only from the standpoint of Section 105 (1), C. P. C. but the order impugned will constitute res judicata" and so the matter cannot be agitated again, Counsel relied on the decisions reported in Balkishna Doss v. Parmeshrl Doss, AIR 1963 Punj 187 ; Shyamacharan v. Sheojee Bhai, AIR 1964 MP 288 Ramswarup v. Pyare Das, AIR 1977 Pat 158. It does not appear that the decision of the Madras High Court in AIR 1940 Mad 756 was brought to the notice of the Punjab and Patna High Courts when the decisions in AIR 1940 Mad 756 was referred to in express terms and dissented from by the Madhya Pradesh High Court while rendering the decision, reported in AIR 1964 MP 288 . The decisions of Punjab, Patna and Madhya Pradesh High Couns took the view that the matter cannot be subject to a fresh attack in the High Court, on the principle res judicata. But, the principle of res judicata is totally inapplicable in this case. We have held that the court committed a jurisdictional error in appointing a second Commissioner, without expressily setting aside the report and proceedings of the first Commissioner. Whatever decision is rendered by the Court militating against the said position in law cannot be deemed to have been finally determined, by the erroneous decision rendered by the court and such erroneous decision cannot operate as res judicata.

(33.) In a recent decision in Isabella Johnson (Smt.) v. M. A. Susai (dead) By L. R.s reported in (1991) 1 SCC 494 , the Supreme Court has held a pure question of law touching the jurisdiction of the court will not operate as res judicata Reference in this connection may be made to Chief justice of Andhra Pradesh v. L. V. A. Dikshitulu and others reported in AIR 1979 SC 193 at page 198. Reference in this connection may also be made to AIR 1971 SC 2228 .

(34.) In this case, the learned court below has clearly found that plaintiff has also proved a prima facie title in himself.

(35.) Mr. N. K. Prasad learned counsel appearing for the opposite party, when questioned, conceded that if a suit for declaration of title is field by the petitioner before a competent Civil Court, the finding of the learned court below shall not operate as res judicata inasmuch as he has not come to a dfienite finding that the plaintiff has title in or over the properties in suit.

(36.) With regard to the question of relationship of learned and tenant, as setised here in before, the learned court below has come to a conclusion that either the defendants were inducted by the plaintiff as a tenant or they were in permissive possession. The said Act governs the relationship of landlord and tenant. The provisions of the said Act will, therefore, be applicable only when there exists a relationship of landlord and tenant. A landlord is entitled to terminate the tenancy in terms of Section 111 (g) of the Transfer of Property Act if the tenant denies his title. Thus forfeiture of tenancy by leason of denial of title of the plaintiff constitute a cause of action for eviction of the tenant. Such question, therefore, may have to be gone into in an eviction suit, but the same must be held to be subject to the limitation that the court should have jurisdiction to try she suit.

(37.) The purported finding of relationship of landlord and tenant by and between the plaintiff and the defendant by the learned court below is based on his finding of title of plaintiff and, he therefore, although purported to have found that there exists such a relationship, he himself was not sure In respect of his rinding, as otherwise, no observation was possible to be made, that the defendants are either tenants of the plaintiff or in permissive possession.

(38.) In this case, it may be noticed that the plaintiffs case had been that it is he who inducted the defendants predecessor in interest as a tenant :

whereas the case of the defendant is that despite execution of the deed rf sale by their predecessor. Tip Naravan Singh, to Laxman Ram by reason of purpoted deed of sale dated 4-12-1968, they continued to possess the suit premises in their own right. The issue, therefore, which arises for consideration was as to whether the defendants came in possession of the suit premises upon their induction as tenants, by the plaintiff, when he purchased the lands in question inter alia by reason of deeds of sale dated 3-9-1975 executed by Laxman Ram in his favour as also by reason of two other deeds of sale from co-shares of Tip Narayan Singh as mentioned hereinbefore, or the defendant had been continuing in possession without any interruption whatsoever. The learned court below din not address himself to this vital aspect of the matter at all.

(39.) The question, therefore, which arises for consideration whether this is a fit case in which this Court should exercise its jurisdiction under Order VII Rule 7 of the Code of Civil Procedure and remand the case back to the court below directing it to determine the court-fee payable on the market value of the price involving in suit or not, A right decision by a wrong forum is non-existent in the eye of law and hence a nullity. (See AIR 1987 SC 535 ).

(40.) In my opinion, it is not a fit case in which such a discretion should be exercised for the following reasons : -

(1) As noticed hereinbefore, the suit was filed only for eviction on the ground of personal necessity ; the suit was not filed on any other ground. (2) The learned court below has followed the practice and procedure of a Provincial Small Cause Court in terms of sub-section (7) of Section 14 of the. (3) The defendants in view of Section 14 (8) of thedo not have any right of appeal or second appeal as against a decree for eviction passed by a eourt upon following the procedure laid down under Section 14 of the.

(41.) As noticed hereinbefore, it is the common case that only upon payment of ad valorum court-fee on the market-value of the properties involved in the suit, the litigation will not come to an end. It is now well known that in view of Section 21 of the Provincial Small Cause Court Act, a Small Cause Court will have no jurisdiction to try a suit involving a question of title. It is true that the suit, where procedure under Section 14 of theis followed is also tried by a civil court and is not technically a Small Cause Court and, thus, the provisions of Provincial Small Cause Courts Act will have no application in relation thereto ; but evidently, in view of sub-section (7) of Section 14 of the Act, the practice and procedure of such court is to be followed and not the general provision of the Code of Civil Procedure. The same, in my opinion, would cause grave prejudice to the defendant.

(42.) In Budku Mal v. Mahabir Prasad and others, reported in AIR 1988 Supreme Court 1772, the Supreme Court held : -

"It istrue Section 23 does not make it obligatory on the Court of Small Causes to invariably return the plaint once a question of title is raised by the tenant. It is also true that in a suit instituted by the landlord against his tenant on the basis of contract of tenancy, a question of title could also incidentally be gone into and that any finding recorded by a Judge Small Causes in thus behalf could not res judicata in a suit based on title. It cannot, however, be gainsaid that in enacting Section 23 the Legislature must have had in contemplation some cases in which the discretion to return the plaint ought to be exercised in order to do complete justice between the parties. On the facts of the instant cases, we feel that these are such cases in which in order to do complete justice between the parties the plaints ought to have been returned for presentation to a court having jurisdiction to determine the title."

(43.) The Supreme Court in the facts of that case also held that in the event it may not be possible to treat the suits filed by the original owner against the tenants to be suits between landlord and tenant simpliciter based on contract of tenancy in which an issue of title was incidentally raised. In this connection, reference may also be made to Life Insurance Corp. v. India Automobiles and Co. and others, reported in 1990 Vol 4 SCC 286. In that case, the Supreme Court was considering the decision of a Rent Controller in terms of Section 10 of the Tamil Nadu Buildings (Lease, and Rent Control) Act, 1960 which reads as follows : -

"10. Eviction of tenants. - (1) A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section or Sections 14 or 16 : Provided that nothing contained in the said sections shall apply to a tenant whose landlord is the Government: Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a civil court and the court may pass a decree for eviction on any of the grounds mentioned in the said sections, notwithstanding that the court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded." Interpreting the aforementioned provisions, the Supreme Court held : "We think that this contention is well-founded. There are clear indications in the and rules that the Rent Controller does not have the jurisdiction to decide questions of title. In a preceding under the, whether it be for fixation of fair rent or eviction, tenant may raise several objections. He may, inter alia, take up the point that the opposite party is not the landlord. The definition of landlord under the is very wide and encompasses not only an owner but also persons receiving or entitled to receive the rent of building which has been let out or would be entitled to receive the rent of the building if it were let out to a tenant in one of several capacities. Denial of title of the landlord is itself one of the grounds on which eviction can be sought Section 10 (2) (vii) Sri Krishnamurthy Iyer is, therefore, certainly right in contending that the requires the Rent Controller to consider this issue, among others, while disposing the application before him. But we think, Sri Parasaran is right in saying that, since the Rent Controller has no jurisdiction to entertain an application except by a landlord or a tenant, the question of title to the property is one on which his very jurisdiction depends. It cannot be described as a matter that is squarely and directly in issue in these proceedings to which and finality can be attached, as the Rent Controller by deciding the issue wrongly, cannot clothe himself with jurisdiction where none exists. All that the Rent Controller has to do is satisfy himself that the person seeking eviction or fixarion of fair rent is a landlord who has, prima facie, the right to receive the rents of the property in question. That the Rent Controllers jurisdiction on this issue is limited is clear from the proviso to Section 10(1) of the. In order to decide whether the denial of the landlords title is bona fide the Rent Controller may have to go into tenants contentions on the issue but be is not to decide the question finally He has only to see whether the tenants denial of the landlords title is bona fide in the circumstances of the case."

The Supreme Court, thereafter, considered various decisions on the limited nature of tbe jurisdiction of the Tribunal like the Rent Controller and the Samll Causes Court and held .: -

We are opinion, in the light of the decided cases referred to above, that the contention on behalf of the respondents has to be accepted. We are concerned with the jurisdiction of civil court. The extensive jurisdiction conferred on civil courts under Section 9 of the Code of Civil Procedure should not be curtailed without a specific statutary warrant or except on some clear principle. There is nothing in the Tamil Nadu Control Act which in any way takes away or narrows down, the Civil Courts jurisdiction, as, for example, there is in the Delhi Rent Controller Act (Section 50). As to principle, whether we look at it on the analogy of res judicata or adopt the approach of Sri Iyer as to whether the order in the earlier proceedings is to be treated as an order that is null and void or merely one that is valid until set aside, the answer has to turn to nature and scope of the jurisdiction conferred on the Rent Controller under the. Is it possible, we have to ask ourselves, having regard to the context, scheme and terms of the legislation, that the statute could have envisaged the Rent Controller (and the authorities to whom appeal or revision could be preferred from his orders) to be final authorities to ad judicate on issues of title also The answer, in our opinion, has to be in the negative."

(44.) I am not unmindful of the fact that under the Bihar Buildings (Lease, Rent and Eviction) Control Act, a suit for eviction has to be filed before a Civil Court and not a Rent Controller or Provincial Small Causes Court which have limited jurisdiction. But the decision of the Supreme Court in L. I. Cs. case (supra) is relevant for the fact that they exercised a limited jurisdiction because of the procedure involved therein which have been stated in details in paragraph 20 of the judgment.

(45.) An experienced judicial officer also presides over a Small Cause Court. He is also fully equipped to decide a complicated question of title. He cannot do so not only in view of Section 23 of the Provincial Small Cause Court Act, but also in view of the fact that he decides a suit in a summary manner under provisions of Provincial Small Cause Court Act. The right of appeal is on a limited question. The detailed procedures provides in the Code of Civil Procedure which would be applicable and can more fruitfully be taken recourse to by a litigant is not available in such a suit. Similar are the provisions of Section 14 of the.

(46.) Imparting of justice is always uppermost in the mind of the court to exercise its discretion under Order VII Rule 7 of the Code of Civil Procedure, While exercising such a discretion, court has to keep the facts of the case in its mind and to see as to whether it should exercise its discretion under Order VII, Rule 7 of the Code of Civil Procedure, so as to enable it to do complete justice to the parties.

(47.) As noticed hereinbefore, in a case where the question of title by a court would still remain open and where a defendant who despite having title in the property may lose a suit for eviction would not be entitled even to prefer an appeal, in my opinion, in such a situation, enquitable considerations would demand that the parties should be left to get the complicated questions of their respective title decided in properly framed civil suit.

(48.) In Kailash Verma and others v. Sushil Kumar Vohra, reported in (1991) 1 BLJR 136 upon which reliance was placed by Mr. Prasad, it was held that if the defendant raises a question of title in his written statement, the same by itself would not be sufficient to ask the plaintiff to pay ad valorem court-fee. The court upon consideration of various decisions of this Court, as referred to hereinbefore, as also other decisions held :-

"In none of these cases, it was held that even if the plaintiff does not pay for a decree for eviction on the basis of title, he shall have to pay ad valorum court-fee as contended by Mr. Eqbal."

The decision of this court in Kailash Vermas case has no application to the fact of the present case. A indicated hereinbefore, if the plaintiff does not want a decree on the basis of his general title, the question of payment of ad valorum court-fee on the market-value of the property in suit by the plaintiff would not arise, but such a question would certainly arise when the plaintiff has failed to prove the relationship of landlord and tenant by and between himself and the defendant. In this case the plaintiff evidently has failed to prove the same.

(49.) Taking thus all facts and circumstances into consideration, I am of the view that the learned court below ought not to have decided to complicated question of title of the parties in this case.

(50.) In the result, this civil revision application is allowed. The impugned order is set aside. It, however, goes without saying that it would be open to the plaintiff to file a suit for declaration of his title and recovery of possession in a duly constituted civil suit. In the facts and circumstances of the suit, there will be no order as to costs. Revision allowed.